MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Mar 14 2019, 6:39 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
Kurt A. Young                                            Curtis T. Hill, Jr.
Nashville, Indiana                                       Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Shawn Raymond Ault,                                      March 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1898
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese M.
Appellee-Plaintiff.                                      Flowers, Judge
                                                         The Honorable James Snyder,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1603-F5-9317



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019                       Page 1 of 9
[1]   Following a bench trial, Shawn Raymond Ault was convicted of Level 5 felony

      carrying a handgun without a license. His sole issue on appeal is whether the

      circumstantial evidence presented by the State was sufficient to convict him.


[2]   We affirm.


                                   Facts & Procedural History
[3]   Between 5:00 and 6:00 a.m. on November 18, 2015, Indianapolis resident

      Martin Bucio Rojas started the engine of his black 2006 BMW that was parked

      on the street in front of his house and left it running while he went back inside

      his home to get his phone. Bucio Rojas came out about a minute later to find

      that his car had been stolen. He reported the incident to police, his insurer, and

      the dealer.


[4]   Around 5:00 p.m. that day, Indianapolis Metropolitan Police Officer Lauren

      Carmack was dispatched to a location on Belmont Avenue in Indianapolis on a

      report that a vehicle matching the BMW’s description had been found. Upon

      arrival, Officer Carmack observed the subject BMW parked in a lot, and she

      surveilled the unoccupied vehicle from a few houses away. She observed a

      white male, wearing a black tank top, black pants, and a hat, walk out of the

      residence at 1426 S. Belmont, which adjoined the lot where the BMW was

      parked. The man got into the BMW and left, driving northbound on Belmont.

      Seconds later, IMPD Officer Cory Drum, who also had been dispatched to the

      area, saw the BMW as it turned onto another street. Officer Drum pulled

      behind the BMW, and Officer Carmack followed Officer Drum. Both officers

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019   Page 2 of 9
      were in fully marked police cars, but were not using lights or sirens. After

      several turns, the officers observed the BMW turn into an alley. Officer

      Carmack briefly lost sight of the BMW as it turned, but followed it into the

      alley and observed the BMW parked on a cement parking pad. Officers

      Carmack and Drum parked their vehicles, exited, and approached the BMW.

      As they approached, they saw a white male wearing the same black clothing

      and hat, standing within five to ten feet of the car. He looked at them and ran.


[5]   Officers Drum and Carmack began chasing the man, later identified as Ault.

      As they passed the BMW, they observed that the driver’s side door was open,

      and Officer Drum stopped to confirm that no one was inside the vehicle. She

      observed a black handgun on the ground, in the grass, between the open car

      door and the body of the car. Less than a foot from the gun was a magazine.

      The grass was wet from recent rain, but the gun was dry, so Officer Drum

      “kn[e]w it hadn’t been there long.” Transcript Vol. 2 at 19. Her recollection at

      trial was that the vehicle “was running still” but she could not “say for sure”

      that it was. Id. Officer Drum stayed at the vehicle with the gun, which was

      eventually collected by an evidence team.


[6]   Meanwhile, Officer Carmack continued to chase Ault, but lost sight of him.

      One or more individuals who were in the street pointed east, indicating the

      direction that the man had gone. During this time, local resident Whitney

      Thorne was in the alley smoking a cigarette with two other individuals. Ault,

      who Thorne recalled was wearing jeans, a tank top, and a shoe on one foot and

      just a sock on the other, approached her and her friends and asked to use a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019   Page 3 of 9
      phone or for a ride, and they refused. Ault then ran along the side of a house

      and jumped a fence. Thorne and her friends lost sight of him, but when she

      saw him again, he was wearing only “camo basketball shorts.” Id. at 53, 62.

      Thorne went to the side of the house where she had seen Ault run and found his

      jeans, shirt, hat, and shoe pushed up against the house. About a minute later,

      Thorne and her friends flagged down a passing police officer and told him what

      they had seen. Officers set up a perimeter, and Ault was apprehended less than

      two blocks from Thorne’s house about four to six minutes after the chase began.

      IMPD contacted Bucio Rojas at around 8:00 p.m. that day to advise him that

      they had found his car.


[7]   On March 10, 2016, the State charged Ault with Level 5 felony carrying a

      handgun without a license (Count 1), Level 6 felony auto theft (Count 2), and

      Class A misdemeanor resisting law enforcement (Count 3). Prior to trial, the

      trial court granted the State’s motion to dismiss Count 3.


[8]   At the bench trial, Bucio Rojas testified that he did not own a firearm and to his

      knowledge there was no firearm in his BMW before it was stolen. Officer Hittel

      testified that, after he apprehended Ault, Ault told him that he was running

      away from somebody who was trying to beat him up. Officer Hittel did not see

      anyone chasing Ault. IMPD Detective Tod Puletz testified that no latent prints

      were observed on the gun, the magazine, or the ammunition. DNA swabs were

      taken from those items, but no match was made with Ault’s buccal swabs.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019   Page 4 of 9
[9]    At the conclusion of the State’s evidence, Ault sought and was granted a

       directed verdict on Count 2, auto theft, but the court denied Ault’s motion as to

       Count 1, carrying a handgun without a license. Ault’s brother, Charles,

       testified for the defense. He stated that, sometime between noon and 4:00 p.m.

       on the date in question, he stopped at his home at 1426 S. Belmont, which is

       where Officer Carmack had located the BMW later that day. Charles

       discovered his girlfriend at home with Ault and another female. Suspecting that

       the three were having “a rendezvous,” Charles testified that he angrily grabbed

       a knife and threatened to kill Ault, who ran out the front door, across the street,

       and through a neighbor’s yard, wearing only shorts or boxers and no shirt. Id.

       at 109. After Ault ran away from the house, Charles stayed and argued with his

       girlfriend for twenty-five to thirty minutes and then went back to work. He said

       that he did not see a black BMW at the house when he came home or left. He

       learned later that day that Ault had been arrested.


[10]   Pursuant to a stipulation, evidence was admitted that Ault had a prior

       conviction of Class D felony theft. The trial court rejected the defense theory

       that Ault’s being at and running from Charles’s home sometime on the

       afternoon in question provided an alibi, and it found Ault guilty of Level 5

       felony carrying a handgun without a license. Ault now appeals.


                                       Discussion & Decision
[11]   Ault claims the evidence is insufficient. When reviewing a claim of insufficient

       evidence, the appellate court will neither reweigh the evidence nor judge the

       credibility of the witnesses. Ericksen v. State, 68 N.E.3d 597, 600 (Ind. Ct. App.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019   Page 5 of 9
       2017), trans. denied. We consider only the probative evidence and reasonable

       inferences supporting the verdict. Id. We 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. Where

       the evidence of guilt is circumstantial, “‘the question for the reviewing court is

       whether reasonable minds could reach the inferences drawn by the jury; if so,

       there is sufficient evidence.’” Jones v. State, 924 N.E.2d 672, 674 (Ind. Ct. App.

       2010) (quoting Whitney v. State, 726 N.E.2d 823, 825 (Ind. Ct. App. 2000)). We

       need not determine if the evidence is capable of overcoming every reasonable

       hypothesis of innocence. Cole v. State, 69 N.E.3d 552, 556 (Ind. Ct. App. 2017),

       trans. denied.


[12]   To convict Ault of carrying a handgun without a license, the State was required

       to prove beyond a reasonable doubt that he carried a handgun in any vehicle or

       on or about his body without a license. 1 Ind. Code § 35-47-2-1(a). The offense

       is a Level 5 felony if the person has been convicted of a felony within fifteen

       years before the date of the offense. I.C. § 35-47-2-1(e)(2)(B). To satisfy the

       elements of the offense, the State must prove the defendant had either actual or

       constructive possession of the handgun. Deshazier v. State, 877 N.E.2d 200, 204

       (Ind. Ct. App. 2007), trans. denied. “Actual possession occurs when a defendant

       has direct physical control over an item, whereas constructive possession occurs



       1
        Proof that the defendant did not possess a valid license is not an element of the offense, but rather is a
       defense for which the defendant bears the burden of proof. Deshazier v. State, 877 N.E.2d 200, 205 n.4 (Ind.
       Ct. App. 2007), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019                     Page 6 of 9
       when a person has the intent and capability to maintain dominion and control

       over the item.” Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct. App. 2011).


[13]   To fulfill the intent element of constructive possession, the State must

       demonstrate the defendant’s knowledge of the presence of the firearm. Id. at

       784. In cases where the accused has exclusive possession of the premises on

       which contraband is found, an inference is permitted that he or she knew of the

       presence of contraband and was capable of controlling it. Id.; see also Causey v.

       State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004) (knowledge may be inferred

       from exclusive dominion and control over the premises containing the firearm).

       Where the control is non-exclusive, knowledge may be inferred from evidence

       of additional circumstances pointing to the defendant’s knowledge of the

       presence of the firearm. Causey, 808 N.E.2d at 143. These additional

       circumstances may include: (1) incriminating statements by the defendant; (2)

       attempted flight or furtive gestures; (3) proximity of the firearm to the

       defendant; (4) location of the firearm within the defendant’s plain view; and (5)

       the mingling of a firearm with other items owned by the defendant. Deshazier,

       877 N.E.2d at 206. To fulfill the capability requirement of constructive

       possession, the State must demonstrate that the defendant had the ability to

       reduce the firearm to his personal possession. K.F. v. State, 961 N.E.2d 501, 510

       (Ind. Ct. App. 2012), trans. denied; Griffin, 945 N.E.2d at 783.


[14]   Ault argues that where, as here, no one saw him in possession of the handgun

       and no fingerprint or DNA match was found, the State did not establish that he

       had direct physical control over the handgun and thus did not prove actual

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019   Page 7 of 9
       possession. The State maintains that it presented sufficient evidence from

       which a reasonable inference could be drawn that Ault had actual possession of

       the gun. We find no need to resolve this actual possession dispute, however,

       because even assuming that Ault is correct, we find that the State presented

       sufficient evidence that Ault constructively possessed the handgun. That is,

       although Ault claims that the State showed only “Ault’s mere presence at a

       location where the gun was found” and that the State’s evidence to demonstrate

       Ault’s knowledge of the presence of the gun was “entirely absent,” we disagree.

       Appellant’s Brief at 12, 15.


[15]   Here, Officer Carmack observed Ault enter the stolen BMW and drive away.

       He was the only occupant. Officers Carmack and Drum followed Ault, and he

       made a few quick turns, parked the BMW, and quickly abandoned it, with the

       driver’s door open and possibly the engine running. Ault ran when he saw the

       officers. As the officers began to chase him, Officer Drum saw the handgun

       and magazine, laying in the wet leaves and grass right outside the car, in the

       area between the opened door and the car. The handgun was dry indicating to

       Officer Drum that it had not been there long. No other vehicles were parked by

       the BMW and police did not see any other persons near the car. Bucio Rojas

       did not have a gun and had no reason to believe a gun was in the BMW when it

       was stolen. Ault shed most of his clothes and continued running until he was

       apprehended minutes later. Although Ault made no incriminating statements,

       he certainly attempted flight, and the gun was found in plain view and in

       proximity to where he had quickly exited the stolen BMW. This is sufficient


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019   Page 8 of 9
       evidence from which the trier of fact could reasonably have inferred that Ault

       was in possession of the handgun. See e.g., Wallace v. State, 722 N.E.2d 910, 913

       (Ind. Ct. App. 2000) (State presented sufficient evidence to support carrying

       handgun without license conviction where defendant was passenger in car from

       which shots were fired and police saw defendant passing something to a back

       seat passenger who then threw objects, later determined to be four firearms, out

       of car window).


[16]   Judgment affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019   Page 9 of 9
