      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                              Oct 16 2019, 6:11 am
      court except for the purpose of establishing
                                                                                 CLERK
      the defense of res judicata, collateral                                Indiana Supreme Court
                                                                                Court of Appeals
      estoppel, or the law of the case.                                           and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Kurt A. Young                                            Curtis T. Hill, Jr.
      Nashville, Indiana                                       Attorney General of Indiana
                                                               Josiah J. Swinney
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Carl E. McCormack,                                       October 16, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-159
              v.                                               Appeal from the Brown Circuit
                                                               Court
      State of Indiana,                                        The Honorable Judith A. Stewart,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               07C01-1705-F6-290



      Mathias, Judge.


[1]   Following a jury trial in Brown Circuit Court, Carl E. McCormack

      (“McCormack”) was convicted of Level 6 felony receiving stolen auto parts and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019                Page 1 of 10
      determined to be an habitual offender. McCormack appeals and presents one

      argument: whether the evidence is sufficient to support his conviction.

[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts most favorable to the jury’s verdict reveal that in May 2017, Chad

      Austin (“Austin”) owned a gold 2005 Ford F350 pickup truck. Austin wanted

      to sell the truck, so he parked it at a location where it could be seen from a

      nearby road. Brown County Sheriff’s Deputy Detective Brian Shrader

      (“Detective Shrader”) often drove by the truck on his way to work. Knowing

      that there had been a recent rash of thefts involving larger Ford pickup trucks,

      which are more easily stolen due to the design of the door lock, Detective

      Shrader was concerned that Austin’s truck would also be stolen.


[4]   On May 24, 2017, Detective Shrader drove by where Austin’s truck had been

      parked and noticed that it was no longer there. The following morning, one of

      Austin’s employees, who had also noticed that the truck gone, asked Austin if

      he had sold the truck. Austin stated that he had not, and he telephoned the

      police to report the theft. Detective Shrader learned of the report that the truck

      had been stolen and began to investigate.


[5]   Less than an hour after the vehicle had been reported as stolen, Detective

      Shrader and Deputy Austin Schonfield (“Deputy Schonfield”) observed a truck

      matching Austin’s at property on Hoover Road in Brown County. Detective

      Shrader watched as McCormack and three other individuals walked back and
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019   Page 2 of 10
      forth from the truck. The deputies called for backup and blocked the road

      leaving the property with their vehicles. As the officers approached the truck,

      McCormack and his companions “scurried” into the nearby woods. Tr. Vol. 2,

      p. 117. Detective Shrader soon located McCormack hiding under a bush. Also

      located were Joseph Patrick (“Patrick”), Scott Snyder (“Snyder”), and Tabitha

      McPeek (“McPeek”). The police took McCormack and the others into custody.

[6]   The police obtained a warrant to search the property, where they located five

      trucks, one of which—the one McCormack had been seen near—was Austin’s

      stolen Ford F350. The lower portion of the truck had been spray-painted black,

      and the plastic covering the keyhole on the door had been punched out. The

      keyhole had been altered, and the mirrors, tires, and tailgate had been removed

      and replaced with parts from a white 2011 Ford F350 pickup truck found on the

      property. This white truck had been reported stolen as well, and its hood,

      bumpers, headlights, and doors had been removed, as had some of its interior

      components and engine parts. The wheels on the white F350 had been replaced

      with the wheels from Austin’s gold F350.


[7]   Also found on the property was a Dodge Ram pickup truck that had been

      reported as stolen from Kentucky. When it was stolen, the Dodge was painted

      green, but it had been spray-painted black when the police recovered it at the

      Hoover Road property. Two other vehicles, which had not been reported as

      stolen, were also found on the property: a red Ford F150 pickup truck, owned

      by Patrick, and a white 1994 Dodge Dakota. McCormack was known to drive a

      white Dodge Dakota, and Patrick stated that he had seen McCormack inside

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019   Page 3 of 10
       the white Dakota when he arrived. Inside the Dakota, the police found the

       white F350’s doors, seat, and plastic interior panels. A basket containing cans

       of spray paint was found sitting on the top of the Dakota.


[8]    In custody, McCormack told the police that he had been working on the gold

       F350. Patrick stated that he helped McCormack and the others “dismantle” the

       white F350 and Austin’s gold F350 or several hours before the police arrived.

       Tr. Vol. 2, pp. 141, 152. McCormack’s roommate, Laura Gillespie, testified

       that McCormack drove a white Dodge Dakota. She also stated that both she

       and McCormack knew Snyder to be a car thief before the current incident.

       McCormack also told the police he knew that Snyder had been known to steal

       vehicles. Ex. Vol., State’s Ex. 63 at 2:34–2:38.


[9]    On May 17, 2017, the State charged McCormack with one count of Level 6

       felony receiving stolen auto parts. The State later amended the information to

       allege that McCormack was an habitual offender. A three-day jury trial

       commenced on December 14, 2018, at the conclusion of which the jury found

       McCormack guilty as charged. The jury also found McCormack to be an

       habitual offender. The trial court sentenced McCormack on December 19,

       2018, to two and one-half years, enhanced by two years based on the habitual

       offender finding. McCormack now appeals.


                                      Discussion and Decision
[10]   McCormack argues that the State failed to present evidence sufficient to support

       his conviction for Level 6 felony receiving stolen auto parts. When reviewing a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019   Page 4 of 10
       claim that the evidence is insufficient to support a conviction, we neither

       reweigh the evidence nor judge the credibility of the witnesses. Harrison v. State,

       32 N.E.3d 240, 247 (Ind. Ct. App. 2015) (citing McHenry v. State, 820 N.E.2d

       124, 126 (Ind. 2005)), trans. denied. Instead, we respect the exclusive province of

       the jury to weigh any conflicting evidence. Id. We therefore consider only the

       probative evidence supporting the verdict and any reasonable inferences which

       may be drawn from this evidence. Id. We will affirm if the probative evidence

       and reasonable inferences drawn therefrom could have allowed a reasonable

       jury to find the defendant guilty beyond a reasonable doubt. Id.


[11]   To convict McCormack of Level 6 felony receiving stolen auto parts, the State

       was required to prove that he: “knowingly or intentionally receive[d],

       retaine[d], or dispose[d] of a motor vehicle or any part of a motor vehicle of

       another person that has been the subject of theft . . . .” Ind. Code § 35-43-4-

       2.5(c) (2017);1 Appellant’s App. p. 24.


[12]   McCormack attacks the sufficiency of the evidence supporting his conviction on

       several grounds. First, he claims that there was no evidence that he was ever

       seen in possession of stolen parts. Emphasizing the evidence that does not favor

       his conviction, McCormack claims that Detective Shrader did not see him

       holding anything or doing anything to the trucks but merely saw him repeatedly

       walk away from the truck and return. This argument overlooks the evidence



       1
        This statute was repealed effective July 1, 2018, and the theft/receiving stolen property statute was
       amended to include provisions for motor vehicles and motor vehicle parts. See P.L.176-2018, §§ 6, 7.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019                   Page 5 of 10
       that demonstrated that McCormack was seen “dismantling” a “four door, long

       bed white truck.” Tr. Vol. 2, pp. 134, 141, 152. Although McCormack argues

       that there is no evidence to establish that this white truck was the stolen white

       F350, the State’s submitted evidence that the white F350 was the only four-door

       white truck on the property. See Ex. Vol., State’s Exs. 41–49 (photographs of

       two-door white Dodge Dakota); State’s Exs. 19–37 (photographs of four-door

       white Ford F350). From this, the jury could reasonably conclude that

       McCormack was in possession of parts from the stolen white F350 when he

       dismantled this vehicle.


[13]   Moreover, the white F350’s doors, seat, and plastic interior panels were all

       located in the bed of the Dodge Dakota that McCormack had been driving, and

       a basket containing cans of spray paint was found on the hood of that truck.

       McCormack claims that there was no evidence regarding who owned the white

       Dodge Dakota. Regardless of who held legal title to the white Dakota, the State

       presented evidence showing that McCormack was driving the vehicle that day.

       McCormack was seen driving a white Dakota the day before he was arrested,

       and Patrick saw him sitting in the white Dakota when he arrived.


[14]   McCormack also contends that there was no proof that the white Ford F350

       from which he was seen taking the parts was stolen. To the contrary,

       Lieutenant Michael Moore (“Lt. Moore”) of the Brown County Sheriff’s

       Department testified that the white Ford F350 and had been stolen from the

       Columbus area. Tr. Vol. 2, p. 118. And Deputy Joshua Stargell (“Deputy

       Stargell”) testified that he ran the VIN number on the white F350 through the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019   Page 6 of 10
       Indiana Data and Communication System database and confirmed that the

       white F350 was stolen. Id. at 63–64. McCormack argues on appeal that this

       evidence is not trustworthy because it was hearsay. However, McCormack

       made no objection to this testimony at trial. It is well settled that “‘[o]therwise

       inadmissible hearsay evidence may be considered for substantive purposes and

       is sufficient to establish a material fact at issue when the hearsay evidence is

       admitted without a timely objection at trial.’” Humphrey v. State, 73 N.E.3d 677,

       684 (Ind. 2017) (quoting Banks v. State, 567 N.E.2d 1126, 1129 (Ind. 1991)).

       Thus, whether or not Lt. Moore’s or Deputy Stargell’s testimony constituted

       hearsay, it was admitted without objection and could be considered for

       substantive purposes, i.e. to establish that the white F350 was stolen.

[15]   McCormack also argues that his flight from the scene when the police arrived

       cannot be considered as evidence of his guilt. In Willis v. State, 27 N.E.3d 1065,

       1067 (Ind. 2015), our supreme court wrote:

               [T]his Court has held “[t]he fact that a defendant flees or does
               not flee does not indicate either guilt or innocence of itself. . . .”
               Dill v. State, 741 N.E.2d 1230, 1232–33 (Ind. 2001) (finding trial
               court error in giving the jury a flight instruction). We elaborated,
               “it is a matter of common knowledge that men who are entirely
               innocent do sometimes fly from the scene of a crime through fear
               of being apprehended as the guilty parties, or from an
               unwillingness to appear as witnesses.” Id. at 1233 (quoting
               Alberty v. United States, 162 U.S. 499, 511 (1896)) (alteration
               omitted). Thus, something more than running from the scene is
               necessary in order to infer Willis’ guilt.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019   Page 7 of 10
       Id. at 1067 (emphasis added). In Willis, the only evidence connecting the

       defendant to the crime of criminal trespass was his flight from the police near

       the scene of the trespass. See id. at 1067–68. Thus, his flight from the scene was

       insufficient to support his conviction. Id. at 1068.


[16]   Less than a month later, our supreme court reaffirmed the general rule that

       “‘[e]vidence of flight may be considered as circumstantial evidence of

       consciousness of guilt.” Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015)

       (quoting Brown v. State, 563 N.E.2d 103, 107 (Ind.1990)). “Additionally,

       ‘[e]vidence of an attempt to avoid arrest [also] tends to show guilt.’” Id.

       (quoting Wilson v. State, 455 N.E.2d 1120, 1123 (Ind. 1983)).


[17]   Thus, while something more than fleeing from the scene by itself is necessary to

       infer guilt, such flight may be considered as circumstantial evidence of

       consciousness of guilt, which, combined with other circumstantial evidence,

       may be sufficient to support a conviction. And in the present case, there was

       much more than mere flight from the scene.


[18]   McCormack was aware that Snyder had a reputation as a car thief. McCormack

       was seen with Snyder dismantling the stolen white F350 and working with the

       stolen gold F350. Parts from the white F350 were found in the truck

       McCormack had been driving. Parts from the white F350 had been put onto the

       gold F350, and the gold F350 had been spray-painted in an obvious attempt to

       alter its appearance. Spray paint was found on top of the truck McCormack was

       driving. The locks on trucks had been tampered with, and the gold F350’s


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019   Page 8 of 10
       ignition was broken such that it could be started with a screwdriver. This, plus

       McCormack’s attempt to hide when the police arrived, is evidence of

       McCormick’s consciousness of guilt.


[19]   McCormack also argues that there was insufficient evidence regarding his

       knowledge that the vehicles, and thus their parts, were stolen. With regard to

       the knowledge required for a conviction for receiving stolen property, our

       supreme court has explained that “‘[k]nowledge that the property is stolen may

       be established by circumstantial evidence; however, knowledge of the stolen

       character of the property may not be inferred solely from the unexplained

       possession of recently stolen property.’” Fortson v. State, 919 N.E.2d 1136, 1143

       (Ind. 2010) (quoting Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct. App. 2005)).


[20]   Here, there was much more than the mere unexplained possession of recently

       stolen property to establish McCormack’s knowledge that the vehicles were

       stolen, including: McCormack’s knowledge that Snyder was known as a car

       thief; the manner in which the vehicles were being dismantled; the fact that the

       locks on the trucks had been tampered with; the manner in which the vehicles

       were being repainted to alter their appearance; and the flight of those involved

       when the police arrived. Even McCormack stated that, when the police arrived

       and he attempted to hide, he knew he should have listened to his “better

       instincts” and not have been there given Snyder’s reputation. Ex. Vol., State’s

       Ex. 63 at 7:00–7:13.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019   Page 9 of 10
[21]   From this evidence, the jury could reasonably conclude that McCormack

       knowingly received, retained, or disposed of any part of a motor vehicle that

       had been the subject of theft. See J.B. v. State, 748 N.E.2d 914, 918 (Ind. Ct.

       App. 2001) (holding that there was sufficient evidence to support juvenile’s

       delinquency adjudication for act that would have been auto theft if committed

       by an adult where defendant was found riding stolen motor scooter shortly after

       it was stolen, the scooter’s license plate was missing, the lock and ignition had

       been broken, and when confronted, the juvenile attempted to flee).


                                                 Conclusion

[22]   The State presented sufficient evidence to establish that McCormack knowingly

       received, retained, or disposed of any part of motor vehicle that had been the

       subject of theft and that McCormack knew that the vehicles had been stolen.

       Accordingly, we affirm McCormack’s conviction for Level 6 felony receiving

       stolen auto parts.


[23]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019   Page 10 of 10
