MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Jul 18 2016, 9:04 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Desmond Aaron,                                           July 18, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1511-CR-2003
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Peggy R. Hart,
Appellee-Plaintiff                                       Commissioner
                                                         The Honorable Shatrese M.
                                                         Flowers, Judge
                                                         Trial Court Cause No.
                                                         49G20-1502-F4-5316



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016            Page 1 of 8
[1]   Following a jury trial, Desmond Aaron (“Aaron”) was convicted in Marion

      Superior Court of Level 4 felony unlawful possession of a firearm by a serious

      violent felon (“SVF”), Level 6 felony possession of cocaine, Level 6 felony

      possession of a narcotic drug, Class B misdemeanor possession of marijuana,

      and was adjudicated a habitual offender. Aaron was ordered to serve an

      aggregate twenty-year sentence. Aaron appeals and argues that the State failed

      to present sufficient evidence to support his Level 4 felony unlawful possession

      of a firearm by a SVF conviction.


[2]   We affirm.

                                      Facts and Procedural History


[3]   In 2014, Milburn Austin (“Austin”) made an agreement to pay Aaron for a

      drug debt incurred by Ladana (“Baby D”), Austin’s female companion and a

      prostitute. Over the course of several months, Austin paid Aaron over $2,000.

      However, in late 2014, Austin discovered that Baby D was accruing new debt

      with Aaron that Austin did not agree to pay. Austin told Aaron that he refused

      to make any further payments. Aaron was upset with Austin’s refusal to pay

      and began threatening Austin.


[4]   Around 1:00 a.m. on January 30, 2015, one of Austin’s friends, who was inside

      his apartment, notified him that someone was beating on the side of the

      apartment. Austin returned home to find that his friend had already left but

      heard more beating on the side of the apartment. Austin heard a voice that he

      recognized as Aaron’s say, “I know you all in there. Let me in. . . You playing

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016   Page 2 of 8
      games.” Tr. pp. 162-64. Austin then peeked out of the curtain, and four shots

      were fired toward the apartment window. One bullet lightly struck Austin in the

      stomach. Austin then looked out of his upstairs window and saw Aaron

      returning to his car with what looked like a gun. Later that same morning,

      Aaron sent Austin several text messages, which stated: “Give me a call old

      man,” “I’m glad you think it’s a game,” and “U got 2 days to get me my change

      sir.” Tr. p. 175; State’s Ex. Vol., Ex. 11-13.


[5]   Ten days later, on February 9, 2015, Austin reported the shooting to the police.

      Austin claimed that he did not report the incident because he was afraid that it

      would delay his scheduled hernia surgery. Austin also testified that he was

      waiting to calculate his next move with Aaron. Tr. pp. 210-11. After Austin

      reported the shooting, he was taken to the hospital for examination, and officers

      investigated Austin’s apartment. The police discovered holes accompanied by

      broken glass in Austin’s window, along with holes in a blanket covering the

      window, a hole in an interior door, and a shell on the floor. A shell casing was

      later found outside of Austin’s apartment.


[6]   Two days later, on February 11, 2015, officers obtained a warrant, searched

      Aaron’s residence on Watson Road, and seized his cell phone. Officers

      explained to Aaron that his cell phone was included on the warrant. He

      indicated that his phone was in his pocket. An officer then reached in Aaron’s

      pocket to collect the phone and found three baggies filled with what appeared to

      be drugs. A later test revealed that the bags contained .38 grams of marijuana,

      2.2 grams of cocaine, and .72 grams of heroin. Tr. p. 313. The officers also

      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016   Page 3 of 8
      found several rounds of live ammunition, a magazine for a semi-automatic

      pistol, and a Ruger revolver case after searching Aaron’s residence. However,

      no firearms were discovered.


[7]   A search of Aaron’s cell phone recovered two videos that cell phone examiner

      Detective Grant Melton (“Detective Melton”) explained were created on

      February 9, 2015, at 8:26 p.m. and 8:49 p.m. based on the file names. The first

      video depicted Aaron holding what appeared to be a gun and singing a song

      about crime and guns. In the second video, Aaron did not appear but sang the

      same song and displayed what appeared to be three guns in the bathroom.


[8]   Phone record expert Detective Benjamin Bierce (“Detective Bierce”) also

      confirmed that based on Aaron’s cell phone provider’s records, around 1:00

      a.m. on January 30, 2015, Aaron made phone calls that were not consistent

      with him being at his home on Watson Road, but close to Austin’s apartment.

      In addition, Aaron received several phone calls around 8:00 p.m. on February

      9, 2015, that were routed through a tower consistent with Aaron being at

      Austin’s home.


[9]   On February 13, 2015, the State charged Aaron with Level 4 felony unlawful

      possession of a firearm by a SVF, Level 5 felony battery by means of a deadly

      weapon, Level 5 felony criminal recklessness, Level 6 felony possession of

      cocaine, Level 6 felony possession of a narcotic drug, Class A misdemeanor




      Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016   Page 4 of 8
       possession of marijuana1, and alleged Aaron to be a habitual offender. A jury

       trial was held on October 13-14, 2015. Aaron was convicted of Level 4 felony

       unlawful possession of a firearm by a SVF, Level 6 felony possession of

       cocaine, Level 6 felony possession of a narcotic drug, Class B misdemeanor

       possession of marijuana, and was adjudicated a habitual offender. At the

       October 30, 2015 sentencing hearing, the trial court ordered Aaron to serve an

       aggregate twenty-year sentence. Aaron now appeals his Level 4 felony unlawful

       possession of a firearm by a SVF conviction.

                                          Discussion and Decision


[10]   Aaron argues that his conviction was not supported by sufficient evidence.

       “Upon a challenge to the sufficiency of evidence to support a conviction, a

       reviewing court does not reweigh the evidence or judge the credibility of

       witnesses, and respects the jury’s exclusive province to weigh conflicting

       evidence. Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct. App. 2007)

       (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). We consider only

       probative evidence and reasonable inferences supporting the verdict. Id. We

       must affirm if the probative evidence and reasonable inferences drawn from the

       evidence could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. Id.




       1
        The State enhanced this charge to Class A misdemeanor because Aaron had a previous conviction for
       possession of marijuana, but Aaron ultimately was only convicted of Class B misdemeanor.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016         Page 5 of 8
[11]   The State was required to prove beyond a reasonable doubt that Aaron:


               [was] a serious violent felon who knowing or intentionally
               possesse[d] a firearm.


       Ind. Code § 35-47-4-5(c). A firearm is defined by Indiana code section 35-47-1-5

       as:

               any weapon: (1) that is (A) capable of expelling; or (B) designed
               to expel; or (2) that may readily be converted to expel; a
               projectile by means of an explosion.


[12]   Aaron disputes that he possessed a firearm as defined by Indiana Code section

       35-47-4-5(c). He contends that no firearm was recovered when officers executed

       the search warrant and that the only evidence the State presented to show

       possession was two videos involving what appears to be firearms found on his

       cell phone.


[13]   At trial, Austin testified that early in the morning of January 30, 2015, Aaron

       came to Austin’s apartment and fired several shots through the window. Austin

       identified Aaron by his voice that he had heard on numerous prior occasions

       and saw Aaron when he peaked out of the window before the shots were fired.

       One of the bullets grazed Austin’s stomach, causing a small wound and a

       subsequent scar that he showed to the jury. Austin also explained that Aaron

       was threatening him because he owed Aaron money for a drug debt incurred by

       a female companion and prostitute that Austin had agreed to pay.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016   Page 6 of 8
[14]   The State also presented testimony from cellular phone records expert Detective

       Bierce, who indicated that based on the data obtained from Aaron’s cellular

       service provider, Aaron’s cell phone was near Austin’s home during the

       morning of the January 30, 2015 shooting. Around 1:00 a.m., Aaron made

       several phone calls that were consistent with him not being at home, but in an

       area close to Austin’s apartment.

[15]   Further, after Austin reported the shooting, officers observed holes in Austin’s

       window, holes in a blanket covering the window, a hole in an interior door, and

       a discharged bullet on the ground. Officers also found a shell casing outside of

       Austin’s apartment. Police then obtained a search warrant of Aaron’s residence

       and discovered several rounds of live ammunition, a magazine for a semi-

       automatic pistol, and a Ruger revolver case. Firearms Identification Forensic

       Scientist Michael Cooper (“Cooper”) testified that the gun that Aaron was

       holding in the video was a revolver and consistent with a gun that uses the

       ammunition found at Austin’s apartment.

[16]   Officers also seized Aaron’s cell phone pursuant to the search warrant and

       found a video of Aaron singing a song about guns and crime with what appears

       to be a revolver and another video of Aaron not pictured but singing with what

       appears to be several guns in the bathroom. Detective Melton testified that the

       videos were both created on the evening of February 9, 2015, as evidenced by

       the file names on the phone.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016   Page 7 of 8
[17]   The jury has the discretion to weigh the credibility of the witnesses and consider

       all of the evidence presented at trial. Further, a jury may rely on its collective

       common sense and knowledge acquired through everyday experiences when

       determining whether an element of a crime exists. Halsema v. State, 823 N.E.2d

       668, 673 (Ind. 2005). Here, the jury had an opportunity to review the videos

       several times and draw conclusions regarding the nature of the firearms and

       whether Aaron possessed and/or used one or more of those displayed, based on

       their common sense and knowledge. This was a proper deliberative process,

       and we must respect the jury’s discretion to believe what it chose to believe. See

       McHenry, 820 N.E.2d at 126.


[18]   For all of these reasons, we conclude that the State presented sufficient evidence

       to support Aaron’s Level 4 felony unlawful possession of a firearm by a SVF.


[19]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016   Page 8 of 8
