MEMORANDUM DECISION
                                                               Feb 12 2015, 7:03 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
Donald E.C. Leicht                                       Gregory F. Zoeller
Kokomo, Indiana                                          Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey W. Smith,                                        February 12, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1402-CR-95
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable Brant J. Parry, Judge
                                                         Cause No. 34D02-1209-FD-243
Appellee-Plaintiff




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1402-CR-95| February 12, 2015   Page 1 of 5
                                          Statement of the Case
[1]   Jeffrey Smith (“Smith”) appeals his conviction, after a jury trial, for failure to

      register as a sex or violent offender, a Class D felony.1 He argues that

      insufficient evidence supports his conviction, alleging that the State did not

      prove that he had failed to register. Concluding that the State presented

      sufficient evidence, we affirm Smith’s conviction.


[2]   We affirm.


                                                         Issue
[3]            Whether sufficient evidence supports Smith’s conviction.


                                                        Facts
[4]   On May 28, 2002, in Miami County, Smith pled guilty to criminal confinement

      as a Class C felony and as a Class D felony. He also pled guilty to battery as a

      Class D felony. The trial court sentenced Smith to twelve (12) years in the

      Department of Correction and ordered him to register as a violent offender

      upon his release because of the Class C felony criminal confinement conviction.


[5]   On September 19, 2012, the State charged Smith with failure to register as a sex

      or violent offender. The trial court conducted a two-day jury trial on October




      1
       Ind. Code § 11-8-8-17(a)(1)(2012). We note that, effective July 1, 2014, a new version of this statute was
      enacted and that Class D felony failure to register as a sex or violent offender is now a Level 6 felony.
      Because Smith committed his crimes in 2012, we will apply the statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 34A02-1402-CR-95| February 12, 2015              Page 2 of 5
      29-30, 2013. The State presented its evidence through the testimony of

      Lieutenant Kurt Georges (“Lt. Georges”) of the Howard County Sheriff’s

      Department. However, a majority of his testimony was inaudible and thus was

      not included in the transcript. The jury found Smith guilty as charged. Smith

      now appeals.


                                                  Decision
[6]   Smith argues that insufficient evidence supports his conviction for failure to

      register as a sex or violent offender. He argues that there is “no evidence in the

      Transcript that he failed to register.” (Smith’s Br. 6).

[7]           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. 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. To preserve this structure, when appellate courts are
              confronted with conflicting evidence, they must consider it most
              favorably to the trial court’s ruling. Appellate courts affirm the
              conviction unless no reasonable fact-finder could find the elements of
              the crime proven beyond a reasonable doubt. It is therefore not
              necessary that the evidence overcome every reasonable hypothesis of
              innocence. The evidence is sufficient if an inference may reasonably
              be drawn from it to support the verdict.


[8]   Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

      and citations omitted).


[9]   To convict Smith as charged, the State was required to show that Smith, being a

      sex or violent offender, knowingly or intentionally failed to register when he

      was required to register. IND. CODE § 11-8-8-17(a)(1).
      Court of Appeals of Indiana | Memorandum Decision 34A02-1402-CR-95| February 12, 2015   Page 3 of 5
[10]   Smith appears to argue that the record on appeal lacks sufficient evidence to

       sustain his conviction because portions of the transcript showing the offer and

       admission of State’s Exhibits two and three are missing. However, the

       transcript does show that the trial court published the exhibits to the jury. We

       presume that trial courts know and follow the law. Thurman v. State, 793

       N.E.2d 318, 321 (Ind. Ct. App. 2003). Hence, we presume that the trial court

       would not have published exhibits to the jury if the State did not properly offer

       them into evidence. In addition, if there were any errors with the admission of

       Exhibits two and three, it was Smith’s responsibility to provide a sufficient

       record supporting his claim of error. See Miller v. State, 753 N.E.2d 1284, 1287

       (Ind. 2001); see also Ind. Appellate Rule 31 (detailing the procedures for

       supplementing missing portions of the transcript). Smith did neither.

       Therefore, we turn our attention to the exhibits to complete our review.


[11]   Smith’s only claim is that the evidence does not show that he failed to register.

       State’s Exhibit two contains a copy of a letter sent to Smith in September 2012

       informing him that his registration had lapsed in August 2012. State’s Exhibit

       three is a voicemail that Smith left for Lieutenant Georges acknowledging

       receipt of the letter, stating that he was not going to register, that the deputies

       would have to come and find him, and that he planned to sue the sheriff if they

       arrested him. This evidence is sufficient to support the jury’s conclusion that




       Court of Appeals of Indiana | Memorandum Decision 34A02-1402-CR-95| February 12, 2015   Page 4 of 5
       Smith failed to register when required. We affirm Smith’s conviction for failure

       to register as a sex or violent offender. 2


[12]   Affirmed.


       Najam, J., and Bailey, J., concur.




       2
         Smith also advances two additional arguments. First he claims that the “Miami Superior Court I clearly
       made errors in its June 18, 2002 sentencing of Smith under 52D07-0104-CF-00043.” (Smith’s Br. 4). Smith
       did not appeal his conviction from Miami County. We will not consider this argument now because if an
       issue was known and not raised on direct appeal, it is waived. Ben-Yisrayl v. State, 729 N.E.2d 102, 110 (Ind.
       2000).
       Second, Smith claims that his “obligation to register was limited to I.C. [§] 5-2-12-4, and it was terminated
       when I.C. [§] 5-2-12-4 terminated.” (Smith’s Br. 5). In support of this assertion, he cites Hevner v. State, 919
       N.E.2d 109 (Ind. 2010) for the proposition that the legislature repealed INDIANA CODE § 5-2-12-4. Smith
       omitted part of the sentence he cites. The full sentence reads, “[w]hile Hevner was awaiting trial in 2006, the
       Legislature repealed Ind. Code § 5-2-12-4 and recodified the statute at Ind. Code § 11-8-8-4.5.” Id. at 111.
       (emphasis added). Moreover, Smith’s argument is equivalent to alleging that the charging information was
       defective. If he wanted to raise such an argument, it was his responsibility to file a motion to dismiss under
       INDIANA CODE § 35-34-1-4 no later than twenty days after the omnibus date, and failure to do so results in
       waiver on appeal unless fundamental error occurred. Sharp v. State, 16 N.E.3d 470, 477-78 (Ind. Ct. App.
       2014). Smith did not file a motion to dismiss, and he does not allege fundamental error. Accordingly, this
       argument is also waived.

       Court of Appeals of Indiana | Memorandum Decision 34A02-1402-CR-95| February 12, 2015                Page 5 of 5
