James F. Stanton
Jeffrey A. Modisett
Arthur Thaddeus Perry
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
James F. Stanton
Jeffrey A. Modisett
Arthur Thaddeus Perry
residential entry. He was sentenced to enhanced and consecutive sentences totaling 125
years. In this direct appeal he contends that (1) there was insufficient evidence to support
his murder conviction; (2) the trial court committed fundamental error when it failed to
instruct the jury on circumstantial evidence; and (3) his 125 year sentence is manifestly
unreasonable. We affirm the trial court.
where he picked up the baby, told Autumn that she was never going to see the child again,
and fled. The baby's body was found by police in Chester's freezer two days later. On top
of the baby was a note from Franklin to Autumn in which Franklin apologized for all the
trouble [he] caused and stated that little Jerray died in his sleep.
Franklin was charged with the murder of Jerray II, the attempted murder of Autumn and Foster, two counts of battery as a Class C felony for shooting Autumn and Foster, and residential entry. The jury found Franklin not guilty of the attempted murder of Autumn and guilty of the remaining counts. The trial court merged the battery conviction relating to Foster with the attempted murder count. Franklin was sentenced to enhanced and consecutive terms totaling 125 years imprisonment.See footnote 1
spent Friday in an abandoned building with the baby. That evening Franklin took the baby
to Chester's house where he climbed through a window and secured baby food and diapers.
Franklin spent Friday evening in an abandoned house beside Chester's residence. According
to Franklin, he fed the baby a juice bottle and some milk, and the baby started crying after
Franklin changed his diaper. Franklin wrapped the baby in his coat because he thought the
baby was cold and put him in a closet to sleep. Franklin went to another part of the
abandoned house where he fell asleep. When he woke up and went to the closet to check on
the baby, the baby was real warm and it looked like he had spit up milk or something.
Because the baby was not moving or breathing, Franklin attempted CPR but was
unsuccessful in resuscitating the baby. Because he was unable to contact Autumn but
thought that he should be the one to tell her, he wrote a note apologizing for everything
and laid the baby on Chester's bed. Franklin returned to Chester's house the next day, saw
that no one had found the baby, and then put the baby in the freezer so his body would not
decompose. Franklin offered essentially the same version of events when he testified at
The State responds by pointing to Franklin's prior statements regarding the baby and the testimony of a pathologist. On the day before Franklin discovered Autumn at Foster's house, he spoke to Foster at Michael Harbin's house. According to Foster, Franklin asked if Foster knew where Autumn was, stated that she had left with the baby and he was angry about it, and told Foster if he wanted to be bad he could blow up the house and her and the baby. Harbin testified that Franklin told him that if he and Autumn separated, he'd see to
it that she suffered for the rest of her life. Franklin also told Harbin something like if I
can't have my son around me, then nobody will be able to have my son. Finally, Autumn
testified that, immediately before Franklin abducted the baby, he said something about . .
. that he was gonna take the baby and I'll never get to see him again.
The State also presented the testimony of a forensic pathologist who had reviewed several pictures from the autopsy and the autopsy report. He testified that Jerray II died as a result of blunt force injuries of the head and chest, which resulted in multiple skull fractures and contusion of the chest and heart. He further explained the injuries as:
all of those areas where the skull came together were torn apart, so that the fibrous tissue was torn; but even more important, there was fractures of the base of the skull. So, the bottom portion of the skull, which is ordinarily fairly well fused together, was broken as well. The brain was extensively swollen as a result of this blunt force injury, which was accomplished to a major degree by extreme compression of the skull, so that the blunt force is likely to have been applied over a short period of time. . . . The injury of the skull if more similar to the extensive pressure of one body, such as a body of an adult, pressing down on the skull in a very violent way. The contusion and injury of the heart came about in pretty much the same fashion.
The pathologist opined that, although these injuries could have been followed by a very brief cry, the crying would not have sustained and from that moment there would be complete unconsciousness until death.
The pathologist's testimony conflicted with Franklin's in several respects. The pathologist testified that the baby's injuries were not the product of a fall from four feet, but rather would have required a fall
from a much greater height, possibly as high as 15 to 20 feet or a force that's augmented by the weight of the body of another person falling against the infant, compressing the head. A fall of four feet could possibly do that, but it would have
to be augmented with the weight of the body of another human being.
Franklin told police that the baby had fallen onto concrete or gravel while Franklin was going over a fence, but the pathologist testified that there were no scrapes on the baby. After listening to the pathologist's trial testimony Franklin offered a somewhat different account at trial, telling the jury that it was like my hand had hit the concrete and [the baby] was still like towards in my hand. The pathologist also testified that a baby who had sustained these severe injuries would not have been crying hours later as Franklin stated nor would it be able to consume milk or juice. In addition, the pathologist testified that, had the baby sustained its injuries during Franklin's flight from Foster's home during the early morning hours of August 15, the baby would not have survived until the following morning as Franklin claimed. Finally, Franklin told the police and testified at trial that he unsuccessfully attempted CPR on Jerray II. The pathologist testified on cross-examination that the chest injuries could have been caused by an unskilled person attempting to perform CPR, but on re-direct stated that the great force required to inflict the chest injuries would not normally be seen from a parent who tried CPR on an infant of that age.
The jury was instructed that, to find Franklin guilty of murder, it must find beyond a reasonable doubt that he knowingly or intentionally killed Jerray II. It found that the State had met this burden, and its assessment of the evidence is entitled to deference on appeal. Franklin's sufficiency challenge is little more than a request to view the evidence most
favorable to his acquittal and to draw inferences that support that result.See footnote
Our well settled
standard of review precludes us from doing this. We do not reweigh evidence or assess the
credibility of witnesses. Rather, we look to the evidence and reasonable inferences drawn
therefrom that support the verdict and will affirm the conviction if there is probative evidence
from which a reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Garrett v. State, 714 N.E.2d 618, ___ (Ind. 1999); Taylor v. State, 681 N.E.2d 1105,
1110 (Ind. 1997). A murder conviction may be based entirely on circumstantial evidence.
Kriner v. State, 699 N.E.2d 659, 663 (Ind. 1998); Taylor v. State, 676 N.E.2d 1044, 1047
(Ind. 1997). Circumstantial evidence will be deemed sufficient if inferences may reasonably
be drawn that enable the trier of fact to find the defendant guilty beyond a reasonable doubt.
Kriner, 699 N.E.2d at 663.
In short, the State presented evidence that Jerray II died as the result of severe injuries to the head and chest. These injuries were inflicted between the time that Franklin abducted the child from Foster's home and the point at which he placed the dead baby in Chester's home. Franklin, according to his own account of events, was with the baby throughout this period of time, and there is no suggestion that anyone else inflicted the injuries. Although Franklin offered a version of events that suggested the death was the result of an accidental fall and that the baby died the following day while Franklin slept, this account was at odds
with the medical evidence in many respects. Based on Franklin's prior threats and the
pathologist's testimony, there is sufficient evidence of probative value from which the jury
could have concluded that Franklin knowingly or intentionally killed Jerray Franklin II.
119 S. Ct. 104, 142 L. Ed. 2d 83 (1998)).See footnote
The nature of Franklin's offenses is severe and troubling. He broke into Foster's home, shot Foster four times, shot Autumn once, then fled with his own five-month-old baby. As explained in Part I, the baby died of severe injuries to the head and chest, inflicted while under Franklin's care, and the trial court observed at sentencing that Franklin's crimes followed his expressed threats to harm both Autumn and their child. The trial court appropriately found as aggravating circumstances the young age of the murder victim and Franklin's position of trust with the child as the baby's father. The trial court also observed that each offense was separately contemplated, planned, and carried out. As to the character of the offender, the trial court found a high risk that Franklin, nineteen at the time of these crimes, would commit another crime based on two prior residential burglary convictions as a juvenile. It also observed that he committed the second burglary within days of being discharged from probation on the first one. Based on these considerations, the trial court concluded that enhanced and consecutive terms totaling 125 years were appropriate. We cannot say that the sentence was clearly, plainly, and obviously unreasonable, and accordingly decline to revise Franklin's sentence.
SHEPARD, C.J., and DICKSON and SELBY, JJ., concur.
SULLIVAN, J., concurs except as to sentence.
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