Devin Michael Franklin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] A jury found Devin Franklin (“Franklin”) guilty but mentally ill of Level 1 felony attempted murder ¹ and guilty of Class A misdemeanor resisting law enforcement.² On appeal, Franklin argues that: (1) the trial court abused its discretion in admitting certain evidence; (2) the trial court abused its discretion in instructing the jury; and (3) his sentence is inappropriate.

[2] We conclude that: (1) the trial court did not abuse its discretion in admitting certain evidence; and (2) Franklin has waived appellate review of his jury instruction argument because he failed to object to the instruction at trial and does not argue fundamental error on appeal. Accordingly, we affirm Franklin's convictions.

[3] Regarding Franklin's sentence, we note that on September 6, 2024, the trial court judge entered two inconsistent sentencing orders. Specifically, one sentencing order, which was entered first in the trial court's chronological case summary (“the CCS”), provides that the trial court sentenced Franklin to thirty-nine (39) years for the Level 1 felony conviction and one (1) year for the Class A misdemeanor conviction (“the first sentencing order”). The first sentencing order further provides that the sentences were to run consecutively to each other for an aggregate sentence of forty (40) years. A second sentencing order issued that same day provides that the trial court sentenced Franklin to thirty-nine (39) years for the Level 1 felony conviction and one (1) year for the Class A misdemeanor conviction (“the second sentencing order”). The second sentencing order further provides that the sentences were to run concurrently with each other. In addition, the second sentencing order provides that the aggregate sentence would be forty (40) years. Neither sentencing order has a time stamp, but it appears that the term consecutive in the first sentencing order has been modified to concurrent in the second sentencing order. We further note that judgment entry in the CCS provides that the two sentences are to run concurrently with each other, and the Abstract of Judgment sent to the Department of Correction also provides that the two sentences are to run concurrently with each other. Based on the foregoing, we conclude that the trial court sentenced Franklin to an aggregate sentence of thirty-nine years. Accordingly, we remand this case to the trial court with instructions to issue an amended sentencing order that clearly specifies that it imposed concurrent sentences and an aggregate sentence of thirty-nine years. Further, we conclude that Franklin has failed to show that his thirty-nine (39) year sentence is inappropriate, and we affirm that sentence.

[4] We affirm and remand with instructions.

Issues

1. Whether the trial court abused its discretion in admitting certain evidence.

2. Whether the trial court abused its discretion in instructing the jury.

3. Whether Franklin's sentence is inappropriate.

Facts

[5] The facts most favorable to the verdict reveal that in January 2021, twenty-six-year-old Franklin lived with his mother (“mother”) in Connersville. Franklin has identified as transgender for several years; however, mother allowed “[n]o wigs and no dressing like a girl in [her] house.” (Tr. Vol. 5 at 28).

[6] On January 30, 2021, mother contacted the gas company to report that she smelled gas in her home. When gas company employee Darrin Poore (“Poore”) arrived at mother's home, Franklin led Poore to the basement. Poore noticed a large leak in the water heater and detected a gas leak near the controls on the water heater. Poore told Franklin that the water heater was unsafe to operate and that Poore would need to turn it off until it could be repaired.

[7] As soon as Poore had shut off the water heater and turned around, Franklin stabbed him in the chest with “a long butcher-style knife.” (Tr. Vol. 6 at 39). Although Poore attempted to take the knife from Franklin, Franklin stabbed Poore fifteen to seventeen times. Poore, who was losing a lot of blood, realized that his injuries were serious and that he had to get out of the basement. Poore was able to run up the basement stairs and out the front door.

[8] By the time that Poore had made it outside, he was bleeding profusely and having difficulty breathing. Mother, who had run across the street to a neighbor's house when she had seen Franklin and Poore tussling in the basement, had called 911. Connersville Police Department Captain Christopher Scott (“Captain Scott”), who was the first law enforcement officer to arrive at the scene, could tell that Poore's injuries were serious. Mother told Captain Scott that Franklin had attacked Poore and had fled out the back door of her house.

[9] Shortly thereafter, two paramedics arrived at the scene. After one of the paramedics had cut off Poore's shirt and had seen his injuries, the paramedic believed that Poore was suffering from life-threatening injuries and needed to be lifelined to a Level 1 trauma center. Poore was subsequently transported by helicopter to a Level 1 trauma center.

[10] While the paramedics were tending to Poore, Captain Scott began searching for Franklin. Captain Scott located Franklin several blocks from Franklin's home and told him to stop and get on the ground. When Franklin failed to follow Captain Scott's commands and ran, Captain Scott pursued Franklin, tased him, and took him into custody. During an interview with a Connersville Police Department detective, Franklin admitted that he had stabbed Poore.

[11] In February 2021, the State charged Franklin with Level 1 felony attempted murder and Class A misdemeanor resisting law enforcement. Two months later, in April 2021, Franklin filed a notice of insanity defense wherein he asked the trial court to appoint two psychiatrists “to examine [Franklin] as to his sanity or insanity at the time of the alleged offense[.]” (App. Vol. 2 at 42). The trial court appointed Dr. Craig Buckles (“Dr. Buckles”) and Dr. Rebecca Mueller (“Dr. Mueller”).

[12] Dr. Buckles evaluated Franklin in May 2021 and determined that Franklin “may have paranoia, and at times, delusional thinking due to either past methamphetamine use or genetic predisposition for schizophrenia.” (App. Vol. 2 at 49). Dr. Buckles further opined that although Franklin had understood the wrongfulness of stabbing another person, it was “plausible that he was very anxious and had a high level of paranoia about [Poore]’s intentions that led to his inappropriate response.” (App. Vol. 2 at 49). Further, Dr. Buckles concluded that “[i]t [was] difficult to say with certainty, but [Franklin] may not have been able to appreciate the wrongfulness of his conduct due to the anxiety and paranoia present at the time.” (App. Vol. 2 at 49).

[13] Dr. Mueller evaluated Franklin in June 2021. Following the evaluation, Dr. Mueller concluded that “[d]ue to the absence of symptoms demonstrated during this evaluation and the lack of documented (treatment record) psychiatric symptoms, [Franklin] was able to appreciate the wrongfulness of his conduct at the time of the alleged offense. He was sane. (IC 35-41-3-6).” (App. Vol. 2 at 55) (emphasis in original).

[14] More than a year later, in November 2023, Franklin filed a motion asking the trial court to order a third doctor to evaluate him and file a report with the court regarding his sanity at the time of the offense. The trial court appointed Dr. Heather Henderson (“Dr. Henderson”), a psychologist, to evaluate Franklin. Dr. Henderson evaluated Franklin in November 2023 and “opine[d] with a high degree of psychological certainty that Mr. Franklin was NOT SANE at the time of the alleged events.” (App. Vol. 2 at 130) (emphasis in original).

[15] The jury heard the facts as set forth above at Franklin's August 2024 trial. Also, at trial, Poore testified that he had been hospitalized for two weeks following Franklin's attack. In addition, Poore testified that one of his wounds had become infected and had taken an additional eight weeks to heal. According to Poore, he had missed four months of work. Poore also testified that after he had returned to work, the infection had returned, and he had missed another two weeks of work. In addition, Poore testified that, as a result of the stabbing, he had permanent damage to his shoulder muscle and permanent scarring.

[16] Further, Dr. Buckles, Dr. Mueller, and Dr. Henderson all testified about their conclusions regarding Franklin's ability to appreciate the wrongfulness of his conduct at the time of the offense. During Dr. Mueller's testimony, the following colloquy ensued between the State and Dr. Mueller:

[STATE]: Is gender dysmorphia described in the DSM?[3]

[DR. MUELLER]: Gender dysmorphia is in the DSM. Yes, sir.

[STATE]: I guess, could you describe that for the jury?

[DR.MUELLER]: Well, we ․ definitely have to be very careful these days. Things are in transition․ So at this time, yes, gender dysmorphia, gender identity disorders are still in the DSM. They're considered, however, time limited, depending on outcome of treatment and/or lifestyle changes.

* * * * *

[STATE]: Is that individuals, you would agree, with gender dysmorphia, there is not a correlation between those who have gender dysmorphia and violent criminal acts; would you agree with that?

[DR. MUELLER]: The gender ․ dysmorphia diagnosis itself and violent acts? No.

[STATE]: Okay. There is no study or any evidence or information you've received that shows a correlation between those things?

[DR. MUELLER]: Okay. That ․ gets muddy.

[STATE]: Okay.

[DR. MUELLER]: I apologize. That gets very muddy. If you want to say gender dysmorphia and violence. Now, if you want to say consequences of gender dysmorphia, such as post-traumatic stress disorder and violence, yes.

[STATE]: You did not see those in this case,

[DR. MUELLER]: No.

[STATE]: -- correct, Doctor?

[DR. MUELLER]: No, sir.

(Tr. Vol. 6 at 90, 92-93). Franklin did not object to Dr. Mueller's testimony.

[17] At the end of the trial, the trial court reviewed the final instructions with the parties. When the trial court asked if there was any objection to the instructions, Franklin responded, “No, Judge.” (Tr. Vol. 7 at 5). Following the parties’ closing arguments, the trial court instructed the jurors, in relevant part, as follows:

[Final Instruction 5]

Count I. The crime of attempted murder is defined as follows. A person attempts to commit a murder when acting with the specific intent to kill another person, he engages in conduct that constitutes a substantial step toward killing that person.

Before you may convict the defendant of attempted murder, the State must have proved each of the following elements beyond a reasonable doubt.

One, the defendant, two, acting with the specific intent to kill Darrin Poore, three, did stab Darrin Poore, four, which was conduct constituting a substantial step toward the commission of the intended crime of killing Darrin Poore.

If the State failed to prove each of these elements beyond a reasonable doubt, you must find the defendant not guilty of the crime of attempted murder charged in Count I.

(Tr. Vol. 7 at 59).⁴ The jury found Franklin guilty but mentally ill of Level 1 felony attempted murder and guilty of Class A misdemeanor resisting law enforcement.

[18] After a probation officer had completed Franklin's presentence investigation report (“the PSI”), the State tendered a sentencing memorandum to the trial court. This memorandum set forth Franklin's criminal history as Franklin had reported it in the PSI. Specifically, in 2014, Franklin was convicted of Class D felony possession of chemical reagents for the manufacture of methamphetamine. While on probation for that offense, Franklin was convicted of Class C felony battery resulting in serious bodily injury in one cause and two counts of Level 6 felony battery against a public safety official and two counts of Level 6 felony intimidation in another cause. Franklin was also convicted of Level 5 felony battery for stabbing another victim. In addition, Franklin was on probation at the time that he committed the offenses in this case. Further, Franklin's probation has been revoked multiple times, and he has never successfully completed a term of probation.

[19] Following a September 3, 2024, sentencing hearing, the trial court took Franklin's sentence under advisement. Three days later, the trial court issued a sentencing order that found, in relevant part, the following aggravating circumstances: (1) Franklin stabbed Poore, without provocation, fifteen to seventeen times, causing Poore to suffer permanent injuries and disfigurement; (2) Franklin has an extensive criminal history, which includes extreme physical violence against both police officers and citizens; and (3) Franklin has previously violated the terms and conditions of his probation. In addition, the trial court's order reviewed Franklin's proposed mitigating factors, including: (1) Franklin confessed to the offenses; (2) Franklin lived with mother, who did not accept Franklin's female gender identity; (3) a former prosecutor offered Franklin a plea agreement that would have resulted in less than a twenty-year sentence; and (4) the jury found that Franklin was mentally ill. The trial court found that these mitigating factors were “largely unsatisfactory” and further found that “the aggravating factors were “overwhelmingly persuasive.” (App. Vol. 3 at 34, 36). Thereafter, the trial court sentenced Franklin to thirty-nine (39) years for the Level 1 felony conviction and one (1) year for the Class A misdemeanor conviction. In addition, as set forth above, we have determined that the trial court ordered the two sentences to run concurrently with each other, for an aggregate sentence of thirty-nine (39) years.

[20] Franklin now appeals his conviction and sentence.

Decision

[21] Franklin argues that: (1) the trial court abused its discretion in admitting certain evidence; (2) the trial court abused its discretion in instructing the jury; and (3) his sentence is inappropriate. We address each of his contentions in turn.

1. Admission of Evidence

[22] Franklin first argues that the trial court abused its discretion in admitting certain evidence. The admission of evidence is within the sound discretion of the trial court, and we will reverse only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955, 959 (Ind. Ct. App. 2008), reh'g denied, trans. denied. A trial court abuses its discretion if its decision is clearly against the logic and the effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.

[23] Franklin specifically contends that the trial court abused its discretion in admitting Dr. Mueller's testimony as set forth above because “Franklin is transgender[,]” and “[t]he State elicited testimony from Dr. Mueller that suggested transgender people are violent.” (Franklin's Br. 13). The State responds that Franklin has waived appellate review of this issue because he failed to object to Dr. Mueller's testimony at trial. We agree with the State.

[24] “A party waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court.” Veerkamp v. State, 7 N.E.3d 390, 395 (Ind. Ct. App. 2014) (cleaned up), reh'g denied, trans. denied. Because Franklin failed to object to Dr. Mueller's testimony at trial, he has waived appellate review of this issue. See id.

[25] In an attempt to avoid waiver, Franklin contends that fundamental error occurred. The fundamental error exception to the waiver rule is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (cleaned up), reh'g denied. “The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process.” Id. (cleaned up). “This exception is available only in egregious circumstances.” Id. (cleaned up). Further, “[f]undamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh'g denied, abrogated in part on other grounds by Konkle v. State, 253 N.E.3d 1068 (Ind. 2025).

[26] Here, Franklin argues that fundamental error occurred because Dr. Mueller told the jury “that there is a correlation between violence and the group Franklin belongs to.” (Franklin's Br. 15). However, we agree with the State that Franklin has misinterpreted Dr. Mueller's testimony. Specifically, Dr. Mueller did not testify that there is a correlation between gender dysmorphia and violence. Rather, when the State asked her if there was such a correlation, Dr. Mueller responded, “No.” (Tr. Vol. 6 at 92). Dr. Mueller further testified that there was a correlation between violence and some of the consequences that could result from gender dysmorphia, such as post-traumatic stress disorder. However, when the State asked Dr. Mueller if she had seen in this case a correlation between the consequences of gender dysmorphia and violence, she responded that she had not.

[27] We find no error here, fundamental or otherwise. The trial court did not abuse its discretion in admitting this evidence.

2. Jury Instruction

[28] Franklin further argues that the trial court abused its discretion in instructing the jury. “The instruction of the jury lies within the trial court's sound discretion, and we review the trial court decisions with regard to jury instructions only for an abuse of that discretion.” Harrison v. State, 32 N.E.3d 240, 251 (Ind. Ct. App. 2015), trans. denied. To constitute an abuse of discretion, an instruction that is given to the jury must be erroneous, and the instructions viewed as a whole must misstate the law or otherwise mislead the jury. Id.

[29] Franklin specifically contends that the trial court abused its discretion in instructing the jury because “final instruction five unduly emphasized the word ‘stab’ and included a suggestion that the act of stabbing was conduct constituting a substantial step toward the commission of the intended crime of killing Darrin Poore.” (Franklin's Br. 12-13). The State responds that Franklin has waived appellate review of this issue because he failed to object to the instruction at trial and has failed to argue fundamental error on appeal. We agree with the State.

[30] “It is well-established in both common law and rule that a party wishing to preserve instructional error for appeal must identify the specific grounds for objection at the time of trial.” Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012). See Childers v. State, 719 N.E.2d 1227, 1232 (Ind. 1999); Ind. Trial Rule 51(C) (“No party may claim as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”). “We require such a specific and timely objection to ensure that the trial court has every opportunity to avoid error that might otherwise require reversal and result in a miscarriage of justice and a waste of time and resources.” Kane, 976 N.E.2d at 1231 (cleaned up). This Court has explained that “[t]his rule is no mere procedural technicality; instead, its purpose is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors.” Shoda v. State, 132 N.E.3d 454, 461 (Ind. Ct. App. 2019). “[A] defendant who fails to object to an instruction at trial waives any challenge to the instruction on appeal.” Evans v. State, 30 N.E.3d 769, 775 (Ind. Ct. App. 2015), trans. denied.

[31] Here, Franklin has waived appellate review of his argument because he not only failed to object to the instruction, he also specifically told the trial court that he had no objection to it and then read it to the jury during his closing argument. Franklin has further failed to argue fundamental error in his appellate brief and has, therefore, entirely waived his claim on appeal. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding that failing to object at trial and failing to argue fundamental error on appeal entirely waives a claim).

3. Inappropriate Sentence

[32] Lastly, Franklin argues that his thirty-nine-year aggregate sentence is inappropriate. Specifically, he asks this Court to “revise [his] sentence downward.” (Franklin's Br. 16).

[33] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the “culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for a “rare and exceptional case.” Skeens v. State, 191 N.E.3d 916, 923 (Ind. Ct. App. 2022) (cleaned up).

[34] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point our General Assembly has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. A jury found Franklin guilty but mentally ill of Level 1 felony attempted murder and guilty of Class A misdemeanor resisting law enforcement. The sentencing range for a Level 1 felony conviction is between twenty (20) and forty (40) years, with an advisory sentence of thirty (30) years. I.C. § 35-50-2-4(b). The maximum sentence for a Class A misdemeanor conviction is one (1) year. I.C. § 35-50-3-2. The trial court sentenced Franklin to thirty-nine (39) years for the Level 1 felony conviction and one (1) year for the Class A misdemeanor conviction. Further, the trial court ordered the two sentences to run concurrently with each other for an aggregate sentence of thirty-nine (39) years.

[35] With regard to the nature of the offenses, we note that, in an unprovoked attack, Franklin stabbed Poore, a gas company employee, fifteen to seventeen times. As a result of the attack, Poore suffered life-threatening injuries and had to be lifelined to a Level 1 trauma facility. Further, Poore spent two weeks in the hospital, and when one of his wounds had become infected, it required an additional eight weeks to heal. Poore initially missed four months of work and then missed an additional two weeks of work when the wound infection had returned. In addition, as a result of the stabbing, Poore has permanent damage to his shoulder muscle and permanent scarring. We further note that after stabbing Poore, Franklin ran from his home, and when law enforcement officers found him, he ran from the officers.

[36] With regard to Franklin's character, we note that when assessing the defendant's character, we consider the defendant's criminal history. McHenry v. State, 152 N.E.3d 41, 47 (Ind. Ct. App. 2020). The significance of that criminal history varies based on the gravity, nature, and number of prior offenses in relation to the current offense. Id. Here, Franklin has a criminal history that includes seven felony convictions, four of which were for inflicting injury on others. Specifically, Franklin has been convicted of Class C felony battery resulting in serious bodily injury, two counts of Level 6 felony battery against a public safety official, and Level 5 felony battery for stabbing another victim. Franklin's record of inflicting injury on others, even after contacts with the justice system, reflects poorly on his character. We further note that Franklin was on probation when he committed the offenses in this case and has never successfully completed probation in any of his cases.

[37] Based on the nature of the offenses and his character, Franklin has failed to persuade this Court that his thirty-nine (39) year aggregate sentence is inappropriate. We further note that this is simply not one of those rare and exceptional cases for which a sentence modification under Rule 7(B) is reserved. Therefore, we affirm Franklin's sentence.

[38] Affirmed and remanded with instructions

FOOTNOTES

1.   Ind. Code §§ 35-41-5-1 and 35-42-1-1.

2.   I.C. § 35-44.1-3-1.

3.   Dr. Mueller explained that the DSM is “[the] Diagnostic Statistical Manual. It's the handbook of diagnosis for psychiatry and psychologists.” (Tr. Vol. 6 at 83).

4.   The trial court read the same instruction as Preliminary Instruction 5, and Franklin did not object to that instruction either. In addition, Franklin read Final Instruction 5 to the jury during his closing argument.

Pyle, Judge.

Altice, C.J., and DeBoer, J., concur.