Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Jun 28 2013, 7:06 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:

ANN M. SUTTON                                       GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    MICHAEL GENE WORDEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID GIBBS,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1208-CR-406
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Lisa Borges, Judge
                        The Honorable Stanley Kroh, Commissioner
                            Cause No. 49G04-0905-FB-46161


                                          June 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

          David Gibbs appeals his conviction for arson, a Class B felony.1

          We affirm.

                                                ISSUE

                Whether the State presented sufficient evidence to support Gibbs’
                                          conviction.

                             FACTS AND PROCEDURAL HISTORY

          On May 11, 2009, the State charged Gibbs with three counts of arson as Class B

felonies. A jury found Gibbs guilty of all three counts, but the trial court vacated two of

the convictions. On appeal, this Court reversed the remaining conviction because the

State amended the charging information after the commencement of trial. Gibbs v. State,

952 N.E.2d 214, 224 (Ind. Ct. App. 2011), trans. denied. We remanded the cause for a

new trial. Id. On March 5, 2012, the State charged Gibbs with a single count of arson as

a Class B felony, and a new trial was subsequently held.

          The evidence favorable to the State shows that Gibbs lived by himself in an

apartment within a multi-unit house located in Indianapolis, Indiana. On May 7, 2009,

Gibbs purchased gasoline from a local gas station and pumped the gasoline into an

antifreeze container that he had retrieved from a nearby garbage bin. He then returned to

his apartment, and within ten minutes of his return, the smoke detector in his apartment

went off and Gibbs ran out the front door. Neighbors living in another apartment in the


1
    Ind. Code § 35-43-1-1(a)(2).

                                               2
building ran out of their unit and observed smoke coming out of the windows and door of

Gibbs’ apartment. They also observed Gibbs running from the scene, and they demanded

that he call 911. However, Gibbs kept running. One of the neighbors called 911 to

inform authorities about the fire.

       Battalion Chief Chris Pitts (“Chief Pitts”) of the Indianapolis Fire Department

happened to be driving past the house in a marked department vehicle with Lieutenant

Jeff Harper (“Lieutenant Harper”). One of Gibbs’ neighbors flagged down Chief Pitts’

vehicle and alerted him to the fire. Chief Pitts observed thick, dark smoke coming from

Gibbs’ apartment and requested assistance through dispatch. After Lieutenant Harper

extinguished fires in the apartment, Chief Pitts observed that separate fires had begun in

the bathroom and under the kitchen sink. Chief Pitts determined that the fires were

suspicious, and he requested assistance from a fire investigation unit.

       Indianapolis Fire Department Fire Investigator Clifton Johnson (“Investigator

Johnson”) subsequently ruled out all accidental causes and determined that the fires had

been intentionally set.    Investigator Johnson also determined that if the fires had

penetrated the apartment walls they would have endangered Gibbs’ neighbors.

       Indianapolis Police Department Arson Detective David Kinsey (“Detective

Kinsey”) talked to Gibbs, who told Detective Kinsey that a single fire began on the stove

after Gibbs had slipped and hit his head while holding the gasoline. Gibbs said that when

he regained consciousness, he was surrounded by fire and smoke from the stove.

Detective Kinsey determined that the bottle containing the gasoline was not in the kitchen

                                             3
and that Gibbs exhibited no signs of burns, singed hair, or spillage from the bottle.

Detective Kinsey further observed that there was no indication of a fire on top of the

stove. Based upon his observations and the inconsistencies in Gibbs’ story, Detective

Kinsey arrested Gibbs. As noted above, Gibbs was ultimately found guilty of one count

of arson as a Class B felony.

                                DISCUSSION AND DECISION

         Indiana Code § 35-43-1-1(a)(2) provides that a person commits Class B felony

arson if the person, by means of fire, explosive, or destructive device, knowingly or

intentionally damages “property of any person under circumstances that endanger human

life.”   Gibbs contends that the State presented insufficient evidence to support his

conviction because “[w]hile it appears [Gibbs] had small spot fires in his apartment, it is

not clear which was set that day, and whether it was intentionally set, or just set by

[Gibbs’] recklessness.” (Gibbs’ Br. at 5-6).

         Our standard of review for sufficiency claims is well settled.      In reviewing

sufficiency of the evidence claims, this court does not reweigh the evidence or assess the

credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans.

denied. Not only must the fact-finder determine whom to believe but also what portions

of conflicting testimony to believe. In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999),

trans. denied. We consider only the evidence most favorable to the judgment, together

with all reasonable inferences drawn therefrom. Davis, 791 N.E.2d at 269-70. The

conviction will be affirmed if there is substantial evidence of probative value to support

                                               4
the conclusion of the trier of fact. Id. at 270. Reversal is appropriate “only when

reasonable persons would not be able to form inferences as to each material element of

the offense.” Alvies v. State, 905 N.E.2d 57, 61 (Ind. Ct. App. 2009).

         Moreover, a conviction may be sustained on circumstantial evidence alone if the

circumstantial evidence supports a reasonable inference of guilt. Gonzalez v. State, 908

N.E.2d 338, 340 (Ind. Ct. App. 2009). Arson is almost always subject to proof solely by

circumstantial evidence, and we defer to the jury’s determination. Barton v. State, 490

N.E.2d 317, 318 (Ind. 1986); McGowan v. State, 671 N.E.2d 1210, 1214 (Ind. Ct. App.

1996).

         Here, both Chief Pitts and Investigator Johnson determined that there were at least

two points of origin for the fires in Gibbs’ apartment. Further, both testified that there

could have been no accidental cause of the fires. Chief Pitts testified without objection

that Lieutenant Harper extinguished the fires immediately before Chief Pitts and

Investigator Johnson conducted their investigations.

         Detective Kinsey testified that the story told by Gibbs about the origin and

location of the fires was not supported by the evidence. In addition, there was no

evidence to indicate that Gibbs had been surrounded by a fire after slipping and being

knocked unconscious.

         There is sufficient evidence to support the jury’s determination that the fires were

intentionally set by Gibbs. Gibbs asks us to reassess the credibility of the witnesses and

reweigh the evidence, which we will not do.

                                              5
      Affirmed.

KIRSCH, J., and VAIDIK, J., concur.




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