Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                 Mar 21 2012, 9:05 am
court except for the purpose of establishing
the defense of res judicata, collateral                          CLERK
                                                               of the supreme court,
estoppel, or the law of the case.                              court of appeals and
                                                                      tax court




  ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

  ELLEN M. O’CONNOR                                     GREGORY F. ZOELLER
  Marion County Public Defender Agency                  Attorney General of Indiana
  Indianapolis, Indiana
                                                        GEORGE P. SHERMAN
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA


  JODY BREWSTER,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
            vs.                                  )      No. 49A05-1109-CR-450
                                                 )
  STATE OF INDIANA,                              )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable Reuben Hill, Judge
                             Cause No. 49F18-1008-FD-59633


                                       March 21, 2012

                  MEMORANDUM DECISION – NOT FOR PUBLICATION

  BRADFORD, Judge
       Appellant-Defendant Jody Brewster appeals from his conviction for Class D

felony Theft,1 contending that the State failed to produce sufficient evidence to sustain his

conviction. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       At approximately 10:30 to 11:00 a.m. on July 31, 2010, Lisa Alvey was awakened

by a noisy pickup truck parked in the driveway of her neighbor Andrew Deckard’s house.

Deckard’s house had burned two weeks previously and the ruins were protected by a

small bright orange plastic fence, a six-foot chain-link fence with a gate outside of that,

and “keep out” signs conspicuously posted. The chain-link fence had been opened and

the orange fence torn to provide a pathway for the truck. Deckard soon arrived from his

nearby rental property, having been told by another neighbor about the truck. Deckard

observed Brewster and Michael Clauss loading scrap metal from the ruins of his house

and garage into the back of the truck. Deckard had not given either Brewster or Clauss

permission to take anything from his house. When Deckard confronted the pair and

accused them of stealing, Brewster said nothing.

       On August 3, 2010, the State charged Brewster with Class D felony theft. On July

21, 2011, a jury found Brewster guilty as charged. On August 9, 2011, the trial court

sentenced Brewster to 545 days of incarceration with 541 days suspended to probation.

                                DISCUSSION AND DECISION

                     Whether the State Produced Sufficient Evidence to
                          Sustain Brewster’s Theft Conviction


       1
           Ind. Code § 35-43-4-2(a) (2010).

                                              2
       Our standard of review for challenges to the sufficiency of the evidence supporting

a criminal conviction is well-settled:

              In reviewing a sufficiency of the evidence claim, the Court neither
       reweighs the evidence nor assesses the credibility of the witnesses. We
       look to the evidence most favorable to the verdict and reasonable inferences
       drawn therefrom. We will affirm the conviction if there is probative
       evidence from which a reasonable jury could have found Defendant guilty
       beyond a reasonable doubt.

Vitek v. State, 750 N.E.2d 346, 352 (Ind. 2001) (citations omitted).

       In order to convict Brewster of Class D felony theft, the State was required to

prove that he “knowingly or intentionally exert[ed] unauthorized control over property of

another person, with intent to deprive the other person of any part of its value or use[.]”

Ind. Code § 35-43-4-2(a). The Indiana Supreme Court has recently held that

       the mere unexplained possession of recently stolen property standing alone
       does not automatically support a conviction for theft. Rather, such
       possession is to be considered along with the other evidence in a case, such
       as how recent or distant in time was the possession from the moment the
       item was stolen, and what are the circumstances of the possession (say,
       possessing right next door as opposed to many miles away). In essence, the
       fact of possession and all the surrounding evidence about the possession
       must be assessed to determine whether any rational juror could find the
       defendant guilty beyond a reasonable doubt.

Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010).

       Brewster does not deny that he was in possession of recently stolen goods, but

contends that the State produced insufficient evidence to establish his intent. In short,

Brewster contends that he was Clauss’s “patsy.”2 Appellant’s Br. p. 5. We conclude,

however, that there is sufficient evidence to support an inference that Brewster had the

       2
         “Patsy” may be defined as “a person on whom blame is foisted” or “FALL GUY[.]”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1657 (Phillip Babcock Gove et al. eds., G.&C.
Merriam Company 1964).
                                             3
requisite intent for theft.     Deckard’s property was protected by two fences and

conspicuous signage, and one of the fences had to be damaged to gain access. The jury

was free to infer from such protective measures that Brewster was on notice that he and

Clauss were not allowed on the premises. The evidence of Brewster’s possession of

recently stolen goods, along with the circumstances surrounding that possession, is

sufficient to sustain his theft conviction.

       The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.




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