      MEMORANDUM DECISION
                                                                         Jul 20 2015, 8:49 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Steven Knecht                                             Gregory F. Zoeller
      Vonderheide & Knecht, P.C.                                Attorney General of Indiana
      Lafayette, Indiana
                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Trent Fitzmaurice,                                        July 20, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                08A02-1411-CR-782
              v.                                                Appeal from the Carroll Superior
                                                                Court
      State of Indiana,                                         The Honorable Kurtis Fouts,
                                                                Judge
      Appellee-Plaintiff
                                                                Case No. 08D01-1403-FD-23




      Crone, Judge.


                                               Case Summary
[1]   Trent Fitzmaurice appeals his convictions for class D felony dealing in a sawed-

      off shotgun and class D felony theft. The dispositive issue presented for our



      Court of Appeals of Indiana | Memorandum Decision 08A02-1411-CR-782 | July 20, 2015       Page 1 of 9
      review is whether the State presented sufficient evidence to support his

      convictions. Finding the evidence sufficient, we affirm.


                                  Facts and Procedural History
[2]   Mary Giddens and her son Brock each owned a pickup truck which they parked

      outside their home in Carroll County. One night in March 2014, Brock drove

      his truck home between 9:00 and 10:00 and parked it near their driveway. The

      following day, Brock returned home from school at about 3:30 p.m. and noticed

      that the hood of his truck was slightly raised. He went over to the truck and

      found that the battery was missing. Brock called his mother and asked if she

      had taken the battery. She had not. A few hours later, Brock went to remove the

      battery from his mother’s truck to put into his and discovered that the battery

      was missing from her truck as well. At that point, both Brock and Mary called

      the police to report the theft.


[3]   Deputy Sheriffs Mitchell Catron and Spencer Kingery arrived, and Brock

      reported that at around 5:30 that evening, his friend Colton arrived at the house

      to pick him up. Upon Colton’s arrival, Brock noticed a white pickup truck that

      he had never seen before driving slowly past their house. He watched the truck

      drive to and park at an abandoned house about a half mile down the road.

      Later, Brock saw a man sitting in a field near his home on a dirt bike. The man

      was watching him and Colton as they pulled off in Colton’s vehicle. Once they

      spotted the man, Colton slowed down so that they could get a better look. The

      man on the dirt bike took off toward the abandoned house. When Brock


      Court of Appeals of Indiana | Memorandum Decision 08A02-1411-CR-782 | July 20, 2015   Page 2 of 9
      returned home, he could see a mud trail from the field going to the abandoned

      house.


[4]   Deputy Kingery also noticed the mud trail coming from the west side of the

      field and continuing to the abandoned house. Deputy Catron approached the

      abandoned house and noticed a light on upstairs, as well as a white pickup

      truck and green dirt bike with fresh mud on it that matched the description

      Brock gave. The front door had a “No Trespassing” sign on it and a busted

      lock. Deputy Catron knocked, and Fitzmaurice answered the door without a

      coat or shoes. Another man named Michael Dye was also inside the house but

      did not come to the door with Fitzmaurice. Deputy Catron explained why he

      was there, and Fitzmaurice admitted that he was riding the dirt bike but denied

      stealing the batteries. Deputy Catron asked to come inside to look for the

      batteries, but Fitzmaurice refused. Fitzmaurice told the deputies that a man

      named Angel owned the house, so he could not let them in without Angel’s

      permission. He did not know Angel’s last name or phone number. Fitzmaurice

      said that he was hired by Angel and was staying in the upstairs bedroom while

      he fixed up the house. Police dispatch discovered that the owner of the house

      was Angel Herrera, LLC.


[5]   Fitzmaurice began to shiver when he was standing in the doorway and asked if

      he could get his coat from upstairs. Deputy Kingery asked if he could follow

      him for officer safety, and Fitzmaurice refused because “there [were] a couple

      pipes up there that were used to smoke spice.” Tr. at 90. Deputy Kingery had



      Court of Appeals of Indiana | Memorandum Decision 08A02-1411-CR-782 | July 20, 2015   Page 3 of 9
      Fitzmaurice and Dye step outside. He handcuffed them and told him that he

      would be requesting a search warrant.


[6]   When the search warrant was executed in the upstairs bedroom where

      Fitzmaurice was staying, two batteries matching the description of the ones

      stolen from the Giddenses were found. The batteries were wired to a lamp that

      was lighting the room. A burnt pen tube used to ingest illegal substances was

      found on top of one of the batteries. Additionally, a black hooded sweatshirt

      was found on top of a duffle bag, and underneath the duffle bag was a sawed-off

      twelve-gauge shotgun. Inside the sweatshirt pocket was a glass pipe used to

      ingest illegal substances with apparent residue on it. Two rifles were also found

      in the upstairs bedroom. The two rifles, which Fitzmaurice admitted belonged

      to him, were lying right next to the duffle bag.


[7]   The State charged Fitzmaurice with class D felony dealing in a sawed-off

      shotgun, class D felony theft, and class A misdemeanor possession of

      paraphernalia. The jury found him guilty as charged. This appeal ensued.


                                     Discussion and Decision

      Section 1 — The evidence is sufficient to sustain Fitzmaurice’s
        class D felony dealing in a sawed-off shotgun conviction.
[8]   Fitzmaurice challenges the sufficiency of the evidence supporting his felony

      convictions. When reviewing the sufficiency of the evidence to support a

      conviction, we examine only the probative evidence and reasonable inferences

      that support the verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014).

      Court of Appeals of Indiana | Memorandum Decision 08A02-1411-CR-782 | July 20, 2015   Page 4 of 9
       Whether the evidence is direct or circumstantial, we will not reweigh it or assess

       the credibility of witnesses. Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995).

       Rather, we consider only the evidence most favorable to the verdict and will

       affirm the conviction unless no reasonable factfinder could find the elements of

       the crime proven beyond a reasonable doubt. Morgan, 22 N.E.3d at 573.


[9]    To sustain a conviction for class D felony dealing in a sawed-off shotgun, the

       State was required to prove beyond a reasonable doubt that Fitzmaurice

       possessed a sawed-off shotgun. Ind. Code § 35-47-5-4.1(a)(6). 1 Fitzmaurice

       concedes that he was present in the house but argues that the State failed to

       prove that he possessed the sawed-off shotgun. A person actually possesses

       contraband when he has direct physical control over it. Gray v. State, 957

       N.E.2d 171, 174 (Ind. 2011). “When the State cannot show actual possession,

       a conviction for possessing contraband may rest instead on proof of

       constructive possession.” Id. Since Fitzmaurice was not in actual possession of

       the shotgun, the State was required to prove constructive possession.


[10]   To prove constructive possession, the State had to show that Fitzmaurice had

       both (1) the intent and (2) the capability to maintain dominion and control over

       the sawed-off shotgun. Iddings v. State, 772 N.E.2d 1006, 1015 (Ind. Ct. App.

       2002).

                  To prove the intent element, the State must demonstrate the
                  defendant’s knowledge of the presence of the contraband, which may



       1
           The legislature has repealed this statute effective July 1, 2015.

       Court of Appeals of Indiana | Memorandum Decision 08A02-1411-CR-782 | July 20, 2015   Page 5 of 9
                be inferred from either the exclusive dominion and control over the
                premises containing the contraband or, if the control is non-exclusive,
                evidence of additional circumstances pointing to the defendant’s
                knowledge of the presence of the contraband.
       Id.


       Additional circumstances have been shown by various means, including

       incriminating statements made by the defendant, proximity of the contraband

       to the defendant, location of the contraband within the defendant’s plain view,

       and the mingling of the contraband with other items owned by the defendant.

       Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004). The capability requirement is met

       when the State shows that the defendant was able to reduce the contraband to

       his personal possession. Id. The nature of the place where the contraband is

       found may be such that it would defy logic and human experience to believe

       that adults with a possessory interest in the premises were unaware of the

       presence of the contraband. Carnes v. State, 480 N.E.2d 581, 587 (Ind. Ct. App.

       1985).


[11]   Regarding the intent prong, Fitzmaurice admitted that he was staying in the

       only upstairs bedroom and that there were illegal drug pipes in that room. It

       could be inferred that if he knew that the drug pipes were present inside the

       bedroom, he knew that the shotgun was also inside the bedroom. See id.

       (considering bedroom occupancy a factor in determining whether defendant

       had knowledge of contraband found in that bedroom), trans. denied. He also

       testified that he was the only one with permission to stay at the house, and that

       when he arrived, he went upstairs to the bedroom and set down his change of

       Court of Appeals of Indiana | Memorandum Decision 08A02-1411-CR-782 | July 20, 2015   Page 6 of 9
       clothes. It could reasonably be inferred that the duffle bag and sweatshirt that

       were comingled with the sawed-off shotgun were the change of clothes that

       Fitzmaurice referenced. Based on the foregoing, we conclude that the State

       introduced sufficient evidence of circumstances pointing to Fitzmaurice’s

       knowledge of the presence of the sawed-off shotgun and his intent to maintain

       dominion and control over it.


[12]   Regarding capability, Fitzmaurice admitted that he was staying in the upstairs

       bedroom, his belongings were there, and his truck and bike were located on the

       premises. It would defy logic and human experience to believe that Fitzmaurice

       was not able to reduce the shotgun to his personal possession. The shotgun was

       inside the room where he was staying and comingled with his belongings where

       he could easily access it and maintain dominion and control over it. Based on

       the foregoing, a reasonable factfinder could find beyond a reasonable doubt that

       Fitzmaurice constructively possessed the shotgun. Therefore, we affirm his

       conviction for class D felony dealing in a sawed-off shotgun.


       Section 2 — The evidence is sufficient to sustain Fitzmaurice’s
                     class D felony theft conviction.
[13]   To sustain a conviction for class D felony theft, the State was required to prove

       beyond a reasonable doubt that Fitzmaurice knowingly or intentionally exerted

       unauthorized control over the Giddenses’ batteries, with the intent to deprive

       them of any part of their value or use. Ind. Code § 35-43-4-2(a). Fitzmaurice

       argues that the State failed to prove his guilt beyond a reasonable doubt.



       Court of Appeals of Indiana | Memorandum Decision 08A02-1411-CR-782 | July 20, 2015   Page 7 of 9
[14]   A conviction may be based solely on circumstantial evidence, and on appeal

       that evidence “need not overcome every reasonable hypothesis of innocence.”

       Moore, 652 N.E.2d at 55. While the mere unexplained possession of recently

       stolen property standing alone does not automatically support a conviction for

       theft, such possession is to be considered along with the other evidence

       regarding the circumstances of the possession. Holloway v. State, 983 N.E.2d

       1175, 1179 (Ind. Ct. App. 2013). Such evidence may include whether the

       property was possessed right next door as opposed to many miles away, and

       how recent in time was the possession from the moment the item was stolen. Id.

       “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.


[15]   Fitzmaurice was staying in the bedroom of an abandoned residence half a mile

       from where the batteries were stolen. The batteries were discovered inside that

       bedroom within eighteen hours of their being stolen. With no electricity, the

       batteries were the only source of light in the house. Such facts logically and

       reasonably point to his guilt when viewed in the totality of the circumstances.

       Fitzmaurice’s argument is merely a request to reweigh the evidence and credit

       his own viewpoint, which the jury obviously did not. Appellate courts do not

       reweigh the evidence or assess witness credibility. Therefore, we affirm

       Fitzmaurice’s conviction for class D felony theft.




       Court of Appeals of Indiana | Memorandum Decision 08A02-1411-CR-782 | July 20, 2015   Page 8 of 9
[16]   Affirmed.


       Brown, J., and Pyle, J., concur.




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