Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                           FILED
                                                             Oct 02 2012, 9:20 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

STANLEY L. CAMPBELL                                 GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    MONIKA PREKOPA TALBOT
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

HERBERT PREASHA,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 02A05-1204-CR-173
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D06-1109-FD-1206



                                         October 2, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Herbert Preasha appeals following his guilty plea to and

conviction for Class D felony receiving stolen auto parts.1 Specifically, Preasha contends

that the trial court erred in denying his motion to have certain items that were seized at the

time of his arrest returned to him. We reverse and remand to the trial court with instructions.

                           FACTS AND PROCEDURAL HISTORY

       The stipulated factual basis entered during the February 3, 2012 guilty plea hearing

provides that on September 2, 2011, Preasha was arrested while in possession of a 2001

Harley Davidson motorcycle which he knew was stolen.

       On September 9, 2011, the State charged Preasha with one count of Class D felony

receiving stolen auto parts, one count of Class D felony receiving stolen property, and Class

A misdemeanor carrying a handgun without a license. On February 2, 2012, the trial court

conducted a guilty plea hearing during which Preasha agreed to plead guilty to Class D

felony receiving stolen auto parts in exchange for the State agreeing to dismiss the remaining

charges. The plea agreement also stipulated that Preasha would receive a one-year suspended

sentence with one year of probation. The trial court conducted a sentencing hearing on

March 12, 2012, during which it accepted the plea agreement and sentenced Preasha in

accordance with its terms.

       Immediately following the sentencing hearing, the trial court conducted a hearing to

determine whether certain items that were seized at the time of Preasha’s arrest should be

returned to Preasha. The record reflects that multiple items were confiscated from Preasha at


       1
           Ind. Code § 35-43-4-2 (2011).
                                              2
the time of his arrest and that all but two of these items, a leather vest with the “Wheels of

Soul” motorcycle club insignia on the back and a bulletproof vest, were subsequently

returned to Preasha’s wife. In requesting that the vests be returned to him, Preasha testified

that the vests were his personal property and that he had acquired the vests through legal

means.

       The State did not present any evidence that the vests had been stolen and an

investigating detective stated only that he could not definitely say that the vests belonged to

Preasha because Preasha was riding a stolen motorcycle at the time of his arrest and the vests

were found in bags attached to the motorcycle. The detective acknowledged, however, that

the bags in which the vests were found were returned to Preasha’s wife as Preasha’s property

and were not considered stolen property. In denying Preasha’s request that the vests be

returned to him, the trial court found that it was not against the law for Preasha to possess

either vest but that Preasha had failed to prove by a preponderance of the evidence that he

was the rightful owner of the vests. This appeal follows.

                             DISCUSSION AND DECISION

       Preasha contends that the trial court erred in denying his request to return the vests

that were seized at the time of his arrest to him.

       As a matter of both constitutional and statutory law, [a defendant] is entitled to
       the return of any property seized from his possession in the absence of a
       showing that it is stolen. A party from whom materials are seized in the course
       of a criminal investigation retains a protectible property interest in the seized
       materials. United States v. Hubbard (D.C. Cir. 1980), 650 F.2d 293. Even if
       the seizure of property in this case were entirely lawful under the Fourth
       Amendment, “it is fundamental to the integrity of the criminal justice process
       that property involved in the proceeding, against which no Government claim
                                               3
       lies, be returned promptly to its rightful owner.” Id. at 303, quoting United
       States v. Wilson (D.C. Cir. 1976), 540 F.2d 1100, 1103. The court, once its
       need for the property has terminated, has both the jurisdiction and the duty to
       return seized property. Id.

Conn v. State, 496 N.E.2d 604, 608 (Ind. Ct. App. 1986). Specifically, the disposition of

property seized as a result of an arrest is governed by Indiana Code section 35-33-5-5 (2011),

which provides in relevant part:

       (c) Following the final disposition of the cause at trial level or any other final
       disposition the following shall be done:
              (1) Property which may be lawfully possessed shall be returned to its
              rightful owner, if known.

(Emphasis added).

       Upon appeal from the trial court’s denial of a motion for return of property, we
       are reviewing a case tried to a court without a jury, and therefore we will not
       reverse unless the decision is clearly erroneous and cannot be sustained upon
       any legal theory supported by the evidence. State v. Poxon, 514 N.E.2d 652,
       654 (Ind. Ct. App. 1987), trans. denied.

Merlington v. State, 839 N.E.2d 260, 262 (Ind. Ct. App. 2005).

       In cases concerning the return of property that was seized from a defendant at the time

of his arrest, this court has held that a defendant’s possession of the property at the time of

his arrest raises a presumption that the defendant was the rightful owner of the property. See

id. at 263; Poxon, 514 N.E.2d at 654. Furthermore, in Sinn v. State, 693 N.E.2d 78, 81 (Ind.

Ct. App. 1998), we concluded that testimony from a defendant that he was the owner of

property seized at the time of his arrest raises a presumption that the defendant is the lawful

owner of the property, and in absence of a showing that the property was stolen, the

defendant is entitled to the return of the property. Id.

                                               4
       In the instant matter, Preasha testified that he purchased both vests through legal

means and that both vests belonged to him. The State did not present any contradictory

evidence that would suggest that the vests were stolen property. Instead, the State relied on

an investigating detective’s testimony in which the detective stated that he could not say

definitively that the vests belonged to Preasha because at the time of Preasha’s arrest, Presha

was riding a stolen motorcycle and the vests were seized from bags that were attached to the

stolen motorcycle. The detective acknowledged, however, that the bags and all other items

that were in the bags at the time of Preasha’s arrest had previously been returned to Preasha’s

wife and were not considered stolen property.

       In light of the trial court’s determination that it was lawful for Preasha to possess both

vests, Preasha’s testimony that he was the rightful owner of the vests, and the State’s failure

to present evidence suggesting that the vests were stolen, we conclude that Preasha

demonstrated by a preponderance of the evidence that he is entitled to the return of the vests

which were seized from his possession. See id.; see also Merlington, 839 N.E.2d at 263

(providing that because there was nothing in the record to suggest that possession of the

property was unlawful or that the defendant was not the rightful owner, Indiana Code section

35-33-5-5(c)(1) mandates that the property be returned to defendant); Poxon, 514 N.E.2d at

654 (providing that because nothing in the record indicated that the defendant was not the

rightful owner of the property or that he had obtained the property illegally, the trial court

properly returned the property to the defendant); Conn, 496 N.E.2d at 609 (providing that

property that can be possessed lawfully should be returned to its rightful owner). The trial

                                               5
court’s failure to return the vests to Preasha was clearly erroneous. As such, we reverse the

decision of the trial court and remand to the trial court with instructions to return the vests to

Preasha.

       The judgment of the trial court is reversed and remanded with instructions.

ROBB, C.J., and BAKER, J., concur.




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