Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                        Nov 12 2014, 9:48 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JOHN T. WILSON                                  GREGORY F. ZOELLER
Anderson, Indiana                               Attorney General of Indiana

                                                MONIKA PREKOPA TALBOT
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

KENNETH KILPATRICK,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 48A02-1402-CR-105
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                       The Honorable Thomas Newman, Jr., Judge
                            Cause No. 48C03-1208-FB-1485


                                    November 12, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Kenneth Kilpatrick (Kilpatrick), appeals his conviction for

theft, a Class D felony, Ind. Code § 35-43-4-2(a).

       We affirm.

                                          ISSUE

       Kilpatrick raises one issue on appeal which we restate as follows: Whether the State

presented sufficient evidence beyond a reasonable doubt to sustain his conviction.

                        FACTS AND PROCEDURAL HISTORY

       On June 21, 2012, Anderson Police officers were dispatched to the 2600 block of

Morton in Madison, Indiana, to investigate an argument between a man and a woman. As

the officers drove through the location where the argument had been reported, they did not

see anyone. However, a short while later, the officers received another call and were

informed that the man in question hid while their patrol vehicle drove by. Based on that

information, the officers returned to the location and found the man matching the

description, later identified as Kilpatrick, arguing with a woman. Upon seeing the officers,

Kilpatrick fled from the scene but was later found hiding behind a trash bin. Although he

resisted arrest, the officers were able to subdue and apprehend him.

       Concurrent with Kilpatrick’s pursuit, other officers were dispatched to a home

approximately one block from where Kilpatrick had been arrested to investigate a burglary.

The house that had been broken into belonged to Cora Hileman (Hileman), and several

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electronic items including a television, an Xbox console, controllers, a remote control, a

candle, and a black sheet from Hileman’s bed (Items) had been stolen. In addition, an air

conditioning unit had been ripped out of one of her windows. Hileman informed the

officers   that   she   had   not   given   anyone    permission    to   enter     her   home.

       After inspecting the surrounding homes, Officer Trent Chamberlain (Officer

Chamberlain) noticed an air conditioning unit leaning against a house next to Hileman’s

house. He knocked on the door of the house and spoke with Kristen Dempsey (Dempsey).

Dempsey, Kilpatrick’s girlfriend at the time, informed Officer Chamberlain that, earlier,

she and Kilpatrick had been arguing about the origins of the air conditioning unit. Also,

Dempsey informed Officer Chamberlain that Kilpatrick might have obtained the air

conditioning unit because she had a heart problem requiring her to stay in a cool area.

Upon a further search of the area, Officer Chamberlain found the rest of Hileman’s missing

Items behind a shed that was between Hileman’s and Dempsey’s house. Hileman later

identified the air conditioning unit, and the other Items stolen from her house.

       On August 8, 2012, the State filed an Information, charging Kilpatrick with Count

I, burglary, a Class B felony, I.C. § 35-43-2-1(b)(i), and Count II, theft, a Class D felony,

I.C. § 35-43-2(a). On December 12, 2013, a jury trial was held. At the close of the

evidence, the jury returned a not guilty verdict on the burglary count but a guilty verdict

on the theft charge. On January 1, 2014, the trial court sentenced Kilpatrick to an executed

sentence of three years in the Department of Correction.

       Kilpatrick now appeals. Additional facts will be provided as necessary.


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                             DISCUSSION AND DECISION

       Kilpatrick claims there was insufficient evidence to convict him of theft. When we

review whether there is sufficient evidence to support a conviction, we do not reweigh the

evidence or judge the credibility of the witnesses. Wright v. State, 828 N.E.2d 904, 905

(Ind. 2005). The trier of fact, not this court, must decide the weight of the evidence and

the credibility of the witnesses when it determines whether the evidence sufficiently proves

each element of the crime. Id. We must affirm if the probative evidence and reasonable

inferences drawn therefrom support the jury’s verdict. Id.

       Where circumstantial evidence is used to establish guilt, the question for the

reviewing court is whether reasonable minds could reach the inferences drawn by the jury;

if so, there is sufficient evidence. Klaff v. State, 884 N.E.2d 272, 274-75 (Ind. Ct. App.

2008) (quoting Maxwell v. State, 731 N.E.2d 459, 462 (Ind. Ct. App. 2000), trans. denied).

We need not determine whether the circumstantial evidence is adequate to overcome every

reasonable hypothesis of innocence; rather, we determine whether inferences may be

reasonably drawn from that evidence that support the verdict beyond a reasonable doubt.

Id. at 275.

       Here, in order for the jury to find Kilpatrick guilty of theft, the State was required

to prove beyond a reasonable doubt that he knowingly exerted unauthorized control over

the air conditioning unit and other Items taken from Hileman’s home with the intent to

deprive Hileman of any part of their value or use. See I.C. § 35-43-4-2.



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       Kilpatrick argues that the evidence was insufficient to sustain his theft conviction

because the State failed to present any evidence that he actually possessed the stolen items.

Also, he argues the State relied on Dempsey’s coerced statement that she saw Kilpatrick

with the air conditioner on the day it was reported missing. We disagree.

       We recognize that the case at bar relates to a conviction decided on grounds of

constructive possession because Kilpatrick did not actually possess the stolen items at the

time of his arrest. Possession can either be actual or constructive. Lampkins v. State, 682

N.E.2d 1268, 1275 (Ind. 1997), modified on reh’g on other grounds, 685 N.E.2d 698 (Ind.

1997). Actual possession is defined as the intent and capability to maintain dominion and

control over the item. See id. To prove intent, there must be additional circumstances

supporting the inference of intent to maintain dominion and control. Id. Capability is

established when a defendant is able to reduce the stolen items to his personal possession.

See id. Constructive possession may also be proven by a defendant’s incriminating

statements, attempted flight or furtive gestures, or the comingling of contraband with other

items the defendant owns. Henderson v. State, 715 N.E.2d 833, 835-36 (Ind. 1999).

       On the day of the burglary, Kilpatrick was close to the crime scene. He had been

arguing with Dempsey as to the origins of the air conditioning unit. When the police

officers arrived at the scene to quell an argument between the two, Kilpatrick bolted. This

court has previously considered flight to be circumstantial evidence of a defendant’s guilt.

See Steen v. State, 987 N.E.2d 159, 163 (Ind. Ct. App. 2013), trans. denied. It is arguable

that when the officers returned to the location for the second time to deal with the domestic


                                             5
disturbance, Kilpatrick’s escape was linked to the theft and was not because he was arguing

with Dempsey.

       While at Dempsey’s residence, the police found the air conditioning unit torn from

Hileman’s house leaning against the outside wall of the home. At trial, Dempsey admitted

that Kilpatrick “might have brought” the air conditioning unit because she had a heart

problem and was under a doctor’s orders to stay in a cool area. (Transcript p. 170). She

also testified that when Kilpatrick brought the air conditioning to her home, they argued

about its origins. Kilpatrick’s intent and capability to maintain dominion and control over

the air conditioning unit can be based on the fact that he placed it outside Dempsey’s home.

Though not his home, but his girlfriend’s house, Kilpatrick lived there from time to time.

To a degree, Kilpatrick’s intent and capability to maintain dominion and control of the

other missing Items could also be inferred by the fact that they were in close proximity to

the air conditioning unit.     Moreover, when Officer Chamberlain located the air

conditioning unit, Hileman positively identified it as hers. Also, Hileman identified the

remaining Items hidden behind a shed that was probably “fifteen [] to twenty [] yards”

away from her house, and was close to Dempsey’s house. (Tr. p. 192). Furthermore, when

Kilpatrick and Dempsey were being interrogated at the police station, Kilpatrick yelled

through the walls of the interrogation room, “don’t tell them anything. I love you baby.”

(Tr. p. 207).

       Lastly, we reject Kilpatrick’s claim that “Dempsey was subjected to pressures and

threats of prison if she didn’t give testimony against” him. (Appellant’s Br. p. 5). On the


                                             6
day of the burglary, Dempsey was transported to the police station for further questioning.

Dempsey was read her Miranda rights and thereafter voluntarily signed a waiver. The

record shows that when Officer Chamberlain first interrogated Dempsey at her house,

Dempsey stated that she saw Kilpatrick place the air conditioning unit outside her house

and they argued about its genesis. Also, Dempsey stated that she believed Kilpatrick

brought the air conditioning unit since she was under a doctor’s orders to stay in a cool

house. At the police station, Dempsey’s story changed. At that point, Officer Chamberlain

employed scare tactics because Dempsey had retracted her previous statements. Once

Officer Chamberlain told Dempsey that she would go to prison for sixteen years, Dempsey

reverted to her original statements. We note that Dempsey had not been charged with

anything, and the ploy used by Officer Chamberlain was acceptable under the

circumstances. “[S]ubterfuge, trickery, and deception can be acceptable interrogation

tactics.” Hartman v. State, 988 N.E.2d 785, 790 (Ind. 2013). “Various interrogation

techniques—‘good cop, bad cop,’ providing a morally acceptable answer, blaming the

victim, and bargaining—do not necessarily create an involuntary statement.” Wilkes v.

State, 917 N.E.2d 675, 681 (Ind. 2009), cert. denied. Given all of these considerations, we

conclude that the interrogation method used on Dempsey did not overcome her will but

only rendered voluntary statements.

      Based on the foregoing, we conclude that there was enough circumstantial evidence

to infer constructive possession of the stolen goods. Thus, we conclude that evidence of




                                            7
probative value exists from which the court as the trier of fact could have found Kilpatrick

guilty beyond a reasonable doubt of theft as a Class D felony.

                                      CONCLUSION

       Based on the foregoing, we conclude that the State presented sufficient evidence to

support Kilpatrick’s conviction for theft.

       Affirmed.

MATHIAS, J. and CRONE, J. concur




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