MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                    Aug 09 2018, 8:59 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen M. Heard                                           Curtis T. Hill, Jr.
Vanderburgh County Public Defender’s                     Attorney General
Office
Evansville, Indiana                                      Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven Eble,                                             August 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-650
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         82D03-1710-F5-6727



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-650 | August 9, 2018                     Page 1 of 6
                                              Case Summary
[1]   Steven Eble appeals his conviction for level 6 felony theft following a jury trial.

      Eble argues that there was insufficient evidence to support his conviction and

      that the trial court abused its discretion in sentencing him. Finding the

      evidence sufficient and that the court did not abuse its discretion, we affirm.


                                 Facts and Procedural History
[2]   The evidence most favorable to the verdict shows that on February 27, 2018,

      after arriving home from work, Alan Folz found the two locks that were used to

      lock his outbuildings on the ground. Realizing that some of his tools were

      missing from his outbuildings, including a Hitachi drill and a Makita saw, Folz

      called the police. Folz provided the police with a description of the missing

      tools, and two speed wrenches were found in the alley behind Folz’s residence

      when the police searched the premises.


[3]   The following day, the police responded to a trespass at an abandoned property

      a few blocks away from Folz’s house, where they found Eble, Terry Kellems,

      and an unidentified female. A search of the property uncovered some of the

      missing tools. The police arrested Kellems because he had a warrant out for his

      arrest, but Eble was allowed to leave.


[4]   Following the trespass incident, Folz visited a pawn shop that was located only

      a few blocks from his residence and identified some of his missing tools,

      specifically the Hitachi drill and the Makita saw. The pawn shop records

      indicated that Eble had sold the tools to the pawn shop on the same day that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-650 | August 9, 2018   Page 2 of 6
      Folz realized the tools were stolen. Eble had signed the seller’s bill of sale

      acknowledging a phrase that indicated he owned the merchandise he was

      selling, and his thumbprint was found on the back.


[5]   The State charged Eble with level 5 felony burglary and level 6 felony theft

      based on a prior theft conviction. At trial, Eble testified that he did not know

      the tools were stolen, and he merely pawned the tools for Kellems, whom he

      believed was the rightful owner. The jury found Eble guilty of theft, but not

      burglary, and he admitted to his prior conviction. The trial court sentenced him

      to 810 days, which is more than eight months longer than the advisory sentence

      for a level 6 felony. Ind. Code § 35-50-2-7. This appeal ensued.


                                     Discussion and Decision

           Section 1 – The evidence presented supports Eble’s theft
                                 conviction.
[6]   Eble challenges the sufficiency of the evidence supporting his conviction.

      “When reviewing the sufficiency of the evidence needed to support a criminal

      conviction, we neither reweigh evidence nor judge witness credibility.” Bailey v.

      State, 907 N.E.2d 1003, 1005 (Ind. 2009). Instead, we consider only the

      evidence supporting the verdict and any reasonable inferences that arise

      therefrom. Id. It is unnecessary that evidence “overcome every reasonable

      hypothesis of innocence.” Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995). “[T]he

      evidence is sufficient if an inference may reasonably be drawn from it to support

      the verdict.” Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001). “We


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-650 | August 9, 2018   Page 3 of 6
      will affirm if there is substantial evidence of probative value such that a

      reasonable trier of fact could have concluded the defendant was guilty beyond a

      reasonable doubt.” Bailey, 907 N.E.2d at 1005.


[7]   Eble maintains that the evidence is insufficient to support his conviction for

      theft. Indiana Code Section 35-43-4-2(a) provides in pertinent part that a

      person who knowingly or intentionally exerts unauthorized control over

      property of another person with the intention of depriving the other person of

      any part of its value or use commits theft. To convict Eble of theft, the State

      had to prove these elements, and also that Eble knew that the property was

      stolen, which may be established by circumstantial evidence. See Stone v. State,

      555 N.E.2d 475, 477 (Ind. 1990).


[8]   Eble concedes that he possessed the stolen property. However, he argues that

      the evidence does not show he knew the property was stolen. “The test of

      knowledge is not whether a reasonable person would have known that the

      [property] had been the subject of theft but whether, from the circumstances

      surrounding his possession of the [property, Eble] knew that it had been the

      subject of theft.” Gibson v. State, 643 N.E.2d 885, 888 (Ind. 1994). The mere

      unexplained possession of recently stolen property standing alone does not

      automatically support a theft conviction. Holloway v. State, 983 N.E.2d 1175,

      1179 (Ind. Ct. App. 2013). “The fact of possession and all the surrounding

      evidence about the possession must be assessed to determine whether any

      rational trier of fact could find the defendant guilty beyond a reasonable doubt.”

      Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-650 | August 9, 2018   Page 4 of 6
[9]    In this case, Eble contends that he did not know the tools were stolen, and

       therefore the evidence was insufficient to support the theft conviction. At trial,

       Eble claimed that Kellems told him that the tools belonged to Kellems and that

       Kellems asked Eble to take the tools to the pawn shop because he had lost his

       ID. Eble points out that he did not try to conceal his possession of the tools,

       and he even used his ID and fingerprint when he sold the tools to the pawn

       shop. However, the evidence presented shows that Eble pawned the tools taken

       from Folz’s home on the same day the tools were taken and knowingly signed a

       bill of sale indicating that the property was his when he knew this not to be

       true.1 A reasonable inference to be drawn from this evidence is that Eble knew

       that the property was stolen. Therefore, we affirm his conviction.


            Section 2 – The trial court did not abuse its discretion in
                                sentencing Eble.
[10]   The trial court made the following statement pertaining to Eble’s sentence

       enhancement: “The court selects an aggravated sentence based on [Eble’s] prior

       criminal record, particularly the kinds of offenses he was convicted for here.”

       Tr. Vol. 2 at 122. Eble argues that the trial court improperly used a material

       element of the offense, namely his prior theft conviction, as an aggravating

       circumstance to enhance his sentence. See Gomillia v. State, 13 N.E.3d 846, 852




       1
        We are unpersuaded by Eble’s reliance on Fortson v. State, 919 N.E.2d 1136 (Ind. 2010), because the
       defendant in that case never claimed that the truck he allegedly stole was his.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-650 | August 9, 2018                    Page 5 of 6
       (Ind. 2014) (finding that the use of a material element of a crime as an

       aggravating factor is improper under some circumstances).


[11]   “[S]entencing decisions rest within the sound discretion of the trial court and

       are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218. “An abuse of

       discretion occurs if the decision is clearly against the logic and effect of the facts

       and circumstances before the court.” Webb v. State, 941 N.E.2d 1082, 1088

       (Ind. Ct. App. 2011), trans. denied. Trial courts “may abuse [their] discretion by

       issuing an inadequate sentencing statement, finding aggravating or mitigating

       factors that are not supported by the record, omitting factors that are clearly

       supported by the record and advanced for consideration, or by finding factors

       that are improper as a matter of law.” Id.


[12]   We find no abuse of discretion here. The trial court did not single out Eble’s

       prior theft conviction that was used to elevate his current conviction to a level 6

       felony, but instead considered his entire criminal record, which includes a

       multitude of theft, trespass, and drug-related convictions. Therefore, we affirm

       Eble’s sentence.


[13]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-650 | August 9, 2018   Page 6 of 6
