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,                Dec 23 2014, 10:04 am
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 Attorneys General
                                                     Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA


                                                )
MATTHEW D. TRIBBLE,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )   No. 79A02-1404-CR-290
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                             The Honorable Les A. Meade, Judge
                     Cause Nos. 79D05-1306-FD-285, 79D05-1307-FD-307
                                     December 23, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

        Matthew Tribble (“Tribble”) appeals his convictions for Auto Theft, a Class D

felony,1 and Battery by Bodily Waste, as a Class D felony.2 He alleges that insufficient

evidence supports each of those convictions.3 We affirm.

                                   Facts and Procedural History

        On May 13, 2013, Lafayette Police Officers Ryan Carlisle, Blake Switzer, and Ian

O’Shields were speaking with several individuals in the course of an investigation. When

Tribble was advised that he was being arrested on a battery charge, he “took off running.”

(Tr. at 80.) Although he initially ignored commands to stop, Tribble was apprehended and

escorted toward a police vehicle. Through an open window, Tribble attempted to spit on

Officer Andrew McCormick (“Officer McCormick”) while the officer was seated in his

patrol car.

        A group of individuals approached the officers and Tribble. At least one of them

incited Tribble “don’t let them take you,” to which Tribble responded by spitting toward


1
 Ind. Code § 35-43-4-2.5. The offense is now a Level 6 felony. We refer to the version of the statute in
effect at the time of Tribble’s offense.

Tribble suggests that he may have been convicted of Receiving Stolen Property. However, at the conclusion
of the bench trial, the trial court judge stated that he was “not even going to bother to find [Tribble] guilty
of count 2 [receiving stolen property]” because of double jeopardy concerns. (Tr. at 217.)
2
 I.C. § 35-42-2-6. This statute is now repealed and Indiana Code Section 35-42-2-1(b)(2) describes battery
by means of placing any bodily fluid or waste on another person. The offense is now a Level 6 felony if
committed against a public safety official while the official is engaged in the official’s official duty. We
refer to the statute in effect at the time of Tribble’s offense.
3
 He does not appeal his conviction for Resisting Law Enforcement, as a Class A misdemeanor, I.C. § 35-
44.1-3-1.

                                                      2
Officer McCormick. (Tr. at 104.) Tribble became more agitated and tried to pull away

from officers. As Tribble was brought to the ground, he was spitting blood. Officer

McCormick knelt down and put his hand on the side of Tribble’s face to control the spitting.

Eventually, the officers were able to place Tribble in the police vehicle, where he continued

to spit blood on the interior. Officer McCormick transported Tribble to a hospital. At the

hospital, he noticed that he had blood on his uniform pants.

       On June 21, 2013, Alise Karis (“Karis”) reported the theft of her nearly-new moped,

which had a distinctive pink muffler. At approximately 1:15 a.m. on June 23, 2013, Officer

Kurt Sinks observed Tribble and a companion pushing a moped with a pink muffler.

Officer Sinks illuminated the moped, whereupon both men dropped it and began to walk

away. Officer Sinks ordered them to stop. Tribble approached the officer saying, “I didn’t

know that moped was stolen, some guys asked me to fix it.” (Tr. at 187.) The moped, then

in a badly damaged condition, was identified as Karis’s property.

       On March 13, 2014, Tribble was tried before a jury on charges of Resisting Law

Enforcement and Battery by Bodily Waste. He was convicted as charged. On March 27,

2014, Tribble was tried in a bench trial on charges of Auto Theft and Receiving Stolen

Property. He was convicted of Auto Theft. At a consolidated sentencing hearing, the trial

court imposed upon Tribble an aggregate sentence of four years imprisonment, with two

years suspended to probation. He now challenges his convictions for Auto Theft and

Battery.



                                             3
                                 Discussion and Decision

                                       Standard of Review

       The standard by which we review alleged insufficiency of the evidence to support a

criminal conviction is well-settled:

       When reviewing the sufficiency of the evidence to support a conviction,
       “appellate courts must consider only the probative evidence and reasonable
       inferences supporting the verdict.” McHenry v. State, 820 N.E.2d 124, 126
       (Ind. 2005) (emphasis added). It is the fact-finder’s role, not that of appellate
       courts, to assess witness credibility and weigh the evidence to determine
       whether it is sufficient to support a conviction. Wright v. State, 828 N.E.2d
       904 (Ind. 2005). To preserve this structure, when appellate courts are
       confronted with conflicting evidence, they must consider it “most favorably
       to the trial court’s ruling.” Id. Appellate courts affirm the conviction unless
       “no reasonable fact-finder could find the elements of the crime proven
       beyond a reasonable doubt.” Jenkins v. State, 726 N.E.2d 268, 270 (Ind.
       2000) (emphasis added). It is therefore not necessary that the 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).

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).

                                   Auto Theft Conviction

       To convict Tribble of auto theft, the State was required to prove that Tribble

“knowingly and intentionally exert[ed] unauthorized control over the motor vehicle of

another person, with intent to deprive the owner … of the vehicle’s value or use.” I.C. §

35-43-4-2.5(b). Pursuant to Indiana Code Section 9-13-2-105(a), a “motor vehicle” means

a vehicle that is self-propelled. A motor scooter is a motor vehicle for purposes of the auto

theft statute. See J.B. v. State, 748 N.E.2d 914, 916 (Ind. Ct. App. 2001).


                                               4
        According to Tribble, enough time elapsed that it is “possible” that someone else

stole the moped and disposed of it before he had it. Appellant’s Brief at 12. He directs our

attention to a rule enunciated in Muse v. State, 419 N.E.2d 1302, 1304 (Ind. 1981), that is,

“where any considerable length of time has elapsed from the time of the theft to the time

of the arrest there must be some showing that defendant has had the exclusive possession

of the property during that period of time.”

       In Muse, the defendant had been discovered driving a vehicle reported stolen three

months earlier. See id. at 1303. In the glove box were receipts that indicated he had been

using the vehicle for a period of time. Id. On appeal of his theft conviction, Muse claimed

that the evidence was insufficient because it was wholly circumstantial and showed only

that he possessed the vehicle. More specifically, he argued that “the presence of the

registration and old license plate in the van and his open admission of the presence of the

van at his home show that he was unaware of the van’s stolen status since he didn’t try to

‘hide’ anything.” Id. at 1304. The Court acknowledged the rule regarding exclusive

possession, but found sufficient evidence of probative value to support the jury’s verdict:

       It is well settled that unexplained possession of stolen property shortly after
       the time of the theft is a circumstance from which a jury is entitled to draw
       an inference of guilt. . . . It is not contested in this case that the van found in
       defendant’s exclusive possession was a stolen vehicle. The circumstances
       pointed to defendant’s possession of the van within three weeks of the theft
       and his continued use thereafter. Defendant did not testify and presented no
       evidence which would explain his possession of the stolen property. He did
       not have a proper registration for the vehicle. What inferences were to be
       drawn from these circumstances were matters for the jury and not this Court.

Id. (citations omitted.)

                                               5
       Almost three decades later, our Indiana Supreme Court handed down Fortson v.

State, 919 N.E.2d 1136, 1143 (Ind. 2010), specifically rejecting the “so-called mere

possession rule.” It is now clear that the mere unexplained possession of recently stolen

property, standing alone, will not automatically support a theft conviction. Id. Rather, “the

fact of possession and all the surrounding evidence about the possession must be assessed

to determine whether any rational [fact-finder] could find the defendant guilty beyond a

reasonable doubt.” Id.

       In Girdler v. State, 932 N.E.2d 769, 772 (Ind. Ct. App. 2010), a panel of this Court

concluded that, in addition to application only where a considerable length of time has

elapsed, “the Muse rule regarding exclusive possession of stolen property since the time of

the original theft only applies where direct evidence of a defendant’s knowledge of the

property’s stolen character is lacking and such knowledge must be proven

circumstantially.” In that case, there was direct evidence of the defendant’s knowledge

because Girdler had told police he knew the van was stolen upon observation of its broken

windows. Id. at 770.

       In Gibson v. State, 533 N.E.2d 187 (Ind. Ct. App. 1989), a panel of this Court

determined that the defendant’s unexplained possession of a car only two days after it was

stolen was insufficient, standing alone, to sustain a conviction of auto theft. However,

Gibson’s conviction was affirmed in light of the corroborating evidence. Id. at 189. The

steering column had been damaged to permit use of a sharp instrument instead of a key,



                                             6
and Gibson had advised officers that “some guy” had offered to pay him for parking the

car. Id. at 188. Gibson had no key but did possess a screwdriver.

       On the other hand, this Court has found that, where a reported theft is not “recent”

and the State fails to present evidence of exclusive possession or corroborating evidence,

an auto theft conviction is not sustainable. Trotter v. State, 838 N.E.2d 553, 558 (Ind. Ct.

App. 2005). See also Kidd v. State, 530 N.E.2d 287 (Ind. 1988) (finding insufficient

evidence to sustain a burglary conviction where the sole evidence was that a defendant

possessed items taken in a burglary two to four days earlier) and Buntin v. State, 838

N.E.2d 1187 (Ind. Ct. App. 2005) (possession of a vehicle stolen five days earlier and

turning around upon spotting a police officer did not support an auto theft conviction).

       Here, the circumstances of Tribble’s possession are substantially similar to those of

Gibson. Tribble and his companion were seen pushing Karis’s stolen moped in the street

around 1:00 a.m., less than two full days after it had been reported missing. When Officer

Sinks illuminated the moped with his spotlight, the pair immediately dropped the moped

into the street and started to walk away. After Officer Sinks ordered the men to stop,

Tribble walked toward Officer Sinks and volunteered that “he didn’t know it was stolen”

and “some guys had asked him to fix it.” (Tr. 187.) The ignition had been ripped out; an

empty hole remained. A back compartment “was ripped off.” (Tr. 170.) Also, the seat

had been broken and the headlight was damaged. Wires were hanging down in the front.

Given Tribble’s possession, unsolicited statement, and the obvious destruction of the

vehicle, there is sufficient evidence from which the trial court as fact-finder reasonably

                                             7
could have concluded that Tribble exerted control over the moped with intent to deprive

Karis of its value or use.

                             Battery by Bodily Waste Conviction

       To convict Tribble of Battery by Bodily Waste, as a Class D felony, as charged, the

State was required to establish, beyond a reasonable doubt, that Tribble “knowingly or

intentionally in a rude, insolent or angry manner place[d] blood or another body fluid or

waste on a law enforcement officer … identified as such and while engaged in the

performance of official duties.” I.C. § 35-42-2-6.

       Officer McCormick testified that Tribble spit toward him and he jumped back to

avoid being hit in the face with the spittle. Tribble continued to struggle and spit. Officer

McCormick then held Tribble’s face in an attempt to control the discharge direction

because Tribble was “actively spitting.” (Tr. at 129.) At the hospital, Officer McCormick

discovered a round spot of blood on his uniform pants leg. He opined that it was not caused

by his own hand-to-pants contact because it “would have been a smeared pattern” in that

case. (Tr. at 131.) Tribble’s argument that an abrasion on Tribble’s face may have bled

onto Officer McCormick’s hand and been transferred invites us to reweigh the evidence,

which we will not do. Drane, 867 N.E.2d at 146.

                                        Conclusion

       The evidence is sufficient to permit the trial court as fact-finder to conclude beyond

a reasonable doubt that Tribble committed Auto Theft. The evidence is sufficient to

support the jury’s verdict that Tribble committed Battery by Bodily Waste.

                                             8
      Affirmed.

ROBB, J., and BROWN, J., concur.




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