Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              Jan 29 2014, 10:03 am
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:

KAREN M. HEARD                                    GREGORY F. ZOELLER
Evansville, Indiana                               Attorney General of Indiana

                                                  RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RONALD LEMON,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 82A05-1305-CR-221
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Wayne S. Trockman, Judge
                            Cause No. 82D02-1301-FD-41



                                       January 29, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                 STATEMENT OF THE CASE

        Ronald Lemon appeals his conviction for auto theft, as a Class D felony, following

a jury trial.1    Lemon raises the following issue for our review:                  whether the State

presented sufficient evidence to support his conviction. We affirm.

                          FACTS AND PROCEDURAL HISTORY

        In the evening of January 2, 2013, Brock Billman drove his silver Pontiac Grand

Prix, which was missing both of its front two hubcaps, to the Huck’s gas station at the

corner of Lynch Road and Green River Road in Evansville. Upon pulling into the gas

station, Billman exited the vehicle and entered the store to buy some hot sauce. Billman

left the car running with the doors unlocked.

        As soon as he entered the store, Billman turned and “saw [his] car backing out.”

Transcript at 8. Billman saw a white male in the driver’s seat, and he immediately tried

to call 9-1-1 from his cell phone but “[c]ouldn’t get through.” Id. at 9. Billman then

called 9-1-1 using the store’s phone.              The Evansville Police Department received

Billman’s call “at 9:29” p.m. Id. at 34. Billman reported that his vehicle had been stolen,

gave the dispatcher a description of his vehicle, and informed the dispatcher of the

direction he had observed the vehicle travel away from the gas station.




        1
            Lemon also appeals the jury’s verdict that he received stolen property, but the trial court
“merged” that verdict with Lemon’s conviction for auto theft. Appellant’s App. at 7. The State concedes
that this was done to “negate any double jeopardy violation.” Appellee’s Br. at 2. In other words, the
trial court did not enter a judgment of conviction against Lemon with respect to the jury’s verdict that he
received stolen property. See Appellant’s App. at 29. As such, and since we affirm Lemon’s conviction
for auto theft, we will not consider this issue. See R.W. v. State, 975 N.E.2d 407, 413-15 (Ind. Ct. App.
2012), trans. denied.


                                                    2
       Officers Aaron McCormick and David Smith received the report of Billman’s

stolen vehicle “at about 9:30.” Id. at 19. The officers were in the area they expected the

stolen vehicle to travel through based on Billman’s report, and “at 9:33” p.m. the officers

were passed by a vehicle matching the description of Billman’s vehicle. Id. at 20. The

officers initiated a traffic stop and observed Lemon in the driver’s seat of the vehicle.

There were no other occupants.

       Within “five minutes” of Billman’s 9-1-1 call, the Evansville Police Department

called Billman and informed him that officers may have recovered his vehicle. An

officer escorted Billman to the nearby scene of the traffic stop, and Billman identified the

vehicle driven by Lemon as his vehicle. The officers arrested Lemon.

       On January 7, 2013, the State charged Lemon with auto theft, as a Class D felony. 2

Following his trial, the jury found him guilty, and the trial court entered its judgment of

conviction and sentence accordingly. This appeal ensued.

                              DISCUSSION AND DECISION

       Lemon asserts that the State failed to present sufficient evidence to support his

conviction for auto theft, as a Class D felony. When reviewing a claim of sufficiency of

the evidence, we do not reweigh the evidence or judge the credibility of the witnesses.

Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative

evidence supporting the verdict and the reasonable inferences that may be drawn from

that evidence to determine whether a reasonable trier of fact could conclude the


       2
           With the exception of the State’s charge that Lemon received stolen property, which we
addressed in footnote 1, supra, the State’s other charges against Lemon are not at issue on appeal.


                                                3
defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of

probative value to support the conviction, it will not be set aside. Id.

       In order to show that Lemon committed auto theft, as a Class D felony, the State

was required to demonstrate that Lemon “knowingly or intentionally exert[ed]

unauthorized control over the motor vehicle of another person, with intent to deprive the

owner of: (1) the vehicle’s value or use . . . .” Ind. Code § 35-43-4-2.5(b). On appeal,

Lemon asserts that there “was no evidence . . . that clearly indicated who actually took or

exerted unauthorized control over the vehicle.” Appellant’s Br. at 11. Lemon continues:

“The only evidence that links Mr. Lemon to the car is that he was found driving the

vehicle later that night. . . . [He] could have gotten possession of the car from a third

party who actually took or exercised unauthorized control over it.” Id. at 11-12.

       In support of his argument, Lemon relies on this court’s opinions in Gibson v.

State, 533 N.E.2d 187 (Ind. Ct. App. 1989), and Shelby v. State, 875 N.E.2d 381 (Ind. Ct.

App. 2007), trans. denied. In both of those cases, we recognized that, “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 the defendant has had the exclusive possession

of the property during that time.” Id. at 385. “To determine whether property was

recently stolen, we must examine the length of time between the theft and possession as

well as circumstances such as the defendant's familiarity or proximity to the property at

the time of the theft and the character of the goods.” Id. (citing Gibson, 533 N.E.2d at

188-89). In Shelby, we reversed the defendant’s conviction for auto theft when fifteen

days had elapsed between the report of the stolen vehicle and when police found the


                                              4
defendant exercising control over it. Id. at 386. In Gibson, two days had passed between

the report of the stolen vehicle and when the defendant was found in control of it, but we

affirmed the defendant’s conviction for auto theft based on additional circumstances that

demonstrated the defendant’s prior control over the vehicle. 533 N.E.2d at 189-90.

          Shelby and Gibson are not factually analogous to Lemon’s appeal. Here, there

was no “considerable length of time” between Billman’s call to 9-1-1 and the officers’

apprehension of Lemon. Billman called 9-1-1 at 9:29 p.m. and officers initiated their

traffic stop of the stolen vehicle, occupied only by Lemon, four minutes later at 9:33 p.m.

          Our Supreme Court has recently clarified the law that applies here. As the court

stated:

          the mere unexplained possession of recently stolen property standing alone
          does not automatically support a conviction for theft. Rather, such
          possession is to be considered along with the other evidence in a case, such
          as how recent or distant in time was the possession from the moment the
          item was stolen, and what are the circumstances of the possession (say,
          possessing right next door as opposed to many miles away). In essence, the
          fact of possession and all the surrounding evidence about the possession
          must be assessed to determine whether any rational juror could find the
          defendant guilty beyond a reasonable doubt.

Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010). Applying that rule here, the officers

initiated their traffic stop of Lemon in Billman’s vehicle just four minutes after Billman

had reported the vehicle stolen. The officers initiated their traffic stop at a location where

they expected to find the vehicle based on Billman’s description of the direction in which

the vehicle had left the gas station, and that location was near the gas station. And

Lemon matched Billman’s description of the occupant of the vehicle he observed as the

vehicle pulled out of the gas station. In light of all the surrounding evidence about the


                                               5
possession of the vehicle, it is clear that a rational juror could find Lemon guilty beyond a

reasonable doubt. Thus, we affirm Lemon’s conviction.

       Affirmed.

BAKER, J., and CRONE, J., concur.




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