Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                      May 14 2014, 8:01 am
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:

MARK SMALL                                      GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                MICHELLE E. BUMGARNER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KENNETH B. HUTSLAR,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 38A02-1310-CR-877
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                        APPEAL FROM THE JAY SUPERIOR COURT
                           The Honorable Max C. Ludy, Jr., Judge
                              Cause No. 38D01-1303-CM-59



                                       May 14, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Kenneth B. Hutslar worked as a trustee while incarcerated at

the Jay County Jail. After Hutslar told law enforcement officials that he found a cell

phone in the laundry room, an investigation commenced because prisoners are prohibited

from having cell phones at the jail.

          The jail officers found the phone as Hutslar described, and it was determined that

Hutslar’s last four social security digits unlocked the code to the phone. The officers

found text message exchanges between Hutslar and his girlfriend, Paula Champ, and one

of the numbers on the cell phone appeared several times on the inmate call log from

Hutslar’s cell block. Champ visited Hutslar many times at the jail, and a detective who

listened to a recorded conversation between Hutslar and Champ learned that Champ left

the phone in a jail trash can where a jail trustee could retrieve it.

          In light of these circumstances, we conclude that the evidence was sufficient to

support Hutslar’s conviction for Possession of a Cellular telephone or Device while

Incarcerated,1 a class A misdemeanor. Thus, we affirm the judgment of the trial court.

                                            FACTS

          Hutslar was an inmate at the Jay County Jail in January 2013. At the time, Hutslar

was a jail “trustee,” an inmate who assists jail staff with chores including cleaning,

laundry, and kitchen duties. Trustees have access to various locations in the jail and are

not supervised while they are performing their duties.




1
    Ind. Code § 35-44.1-3-8.
                                               2
       On January 7, 2013, a situation arose at the jail that involved contraband, namely

marijuana and paraphernalia that had been found in the jail’s linen room. Correctional

Officer Eugene Schilling searched the linen area for those items. That same day, Hutslar

approached him and asked whether they had “found the cell phone.” Tr. p. 137. Officer

Schilling responded that he did not know anything about a cell phone. In response,

Hutslar told Officer Schilling that he wanted to talk with one of the chief deputies about

his credit time hearing. Chief Deputy Bicknell was already gone for the day, so Officer

Schilling escorted Hutslar to Sheriff Newton’s office.

       Officer Schilling stayed in the office while Hutslar spoke with Sheriff Newton.

Hutslar informed Sheriff Newton that he wanted to discuss his credit time hearing and

that he would tell him exactly where the cell phone was located. Hutslar then informed

Sheriff Newton that the cell phone was in the kitchen, underneath a stack of milk cups.

Officer Schilling searched the area and found the phone precisely where Hutslar stated

that the phone would be. Officer Schilling retrieved the cell phone and brought it to the

Sheriff’s office.

       Detective Patrick Wells of the Jay County Sheriff’s Office was directed to

investigate how the cell phone had reached a secure area of the jail. The phone had a

lock code, so he began by attempting to unlock it. Other investigators were in the office

with Detective Wells and discussed the fact that individuals often use the last four digits

of their social security number as a four-digit PIN on their cell phones. Using a list of the



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last four digits of each jail trustee’s social security number, Detective Wells was able to

unlock the telephone with the last four digits of Hutslar’s social security number.

       When the phone was unlocked, Detective Wells reviewed the text messages and

contact numbers. He cross-referenced the numbers on the phone with calls from the

“legitimate” inmate call log. Tr. p. 168. One of the numbers on the cell phone appeared

several times on the inmate call log from Hutslar’s cell block.

       Detective Wells listened to recordings of the calls to the number and determined

that it was Hutslar’s voice that he heard on the recording and an unidentified female

voice. Detective Wells subsequently checked Hutslar’s visitation log and determined that

most of Hutslar’s visits from females were from his girlfriend, Paula Champ.

       Detective Wells decided to interview Champ to determine if she had been the

source of the cell phone. He subsequently determined that the frequently occurring

number on the cell phone belonged to Champ and that at least one of the text messages

told Champ that he loved her. Detective Wells also learned that Champ had smuggled

the cell phone into the jail by leaving it in a restroom trash can in one of the public areas,

where one of the trustees could retrieve it.      Detective Wells reviewed recordings of

visits between Hutslar and Champ and observed them discussing the cell phone in a

“lightly veiled code,” including Champ’s verification of the phone’s lock code for

Hutslar. Id. at 172.

       During one of the visits, Hutslar and Champ discussed a cell phone that Champ

had purportedly acquired for her son. Hutslar asked Champ for the phone’s security

                                              4
code, and she replied that Hutslar already knew the code because it was Hutslar’s social

security number. Hutslar repeated the number to Champ, whereupon Champ confirmed

that it was the proper number that could be used to “unlock” the phone. Id. at 173.

          On March 5, 2013, Hutslar was charged with possession of a cellular telephone or

device while incarcerated, a class A misdemeanor. Following a jury trial on September

25, 2013, Hutslar was found guilty as charged and sentenced to nine months of

incarceration.2 Hutslar now appeals.

                                   DISCUSSION AND DECISION

          Hutslar challenges the sufficiency of the evidence, claiming that his conviction

must be reversed because he was never found in actual possession of the phone.

Moreover, Hutslar argues that he “was not close enough to the cell phone [to support] a

finding of constructive possession.” Appellant’s App. p. 5. As a result, Hutslar argues

that his conviction must be reversed.

          In reviewing challenges to the sufficiency of the evidence, we do not reweigh the

evidence or assess the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126

(Ind. 2005). Rather, we view the evidence most favorable to the verdict. Id. Evidence is

sufficient if an inference may reasonably be drawn from it to support the verdict.

Townsend v. State, 934 N.E.2d 118, 126 (Ind. Ct. App. 2010).

          A defendant’s conviction can be sustained by proof of either actual or constructive

possession. Armour v. State, 762 N.E.2d 208, 216 (Ind. Ct. App. 2002). An item can be

2
    Champ ultimately pleaded guilty to the offense of Trafficking with an Inmate. Tr. p. 162-63.
                                                      5
possessed jointly by the defendant and another without any showing that the defendant

had actual physical control thereof. Hundley v. State, 951 N.E.2d 575, 580 (Ind. Ct. App.

2011), trans. denied.

       To prove constructive possession in this case, the State is only required to show

that Hutslar had knowledge of the cell phone’s presence as well as the intent and

capability to maintain dominion and control over it. State v. Emry, 753 N.E.2d 19, 22

(Ind. Ct. App. 2001). This factor may be established by circumstantial evidence. Id. Put

another way, the evidence establishing Hutslar’s constructive possession of the cell phone

will be sufficient to support his conviction if an inference may reasonably be drawn from

that evidence to support the verdict. Id.

       As discussed above, the evidence established that Hutslar knew that the phone was

located in the laundry room, even before the jail staff knew that a hidden phone even

existed at the jail. While working as a jail trustee, Hutslar had access to the kitchen

where the cell phone was hidden. The lock code on the phone corresponded with the last

four digits of Hutslar’s social security number, Champ took the phone into the jail, and

most of Hutslar’s text messages were to her, including an expression of love. Hutslar and

Champ were also heard during a recorded visit discussing the cell phone and its lock code

in a lightly veiled code. Id. at 162-63, 168, 170-71.

       Finally, even though Hutslar contends that the phone could also have been

possessed by other inmates, the State was only required to prove that Hutslar possessed

the phone, whether or not his possession was exercised with another person or persons.

                                             6
Indeed, it is possible for multiple individuals to possess the same item. In short, the

conviction of one defendant for possessing an item does not preclude a finding that

another defendant possessed the same item. Godar v. State, 643 N.E.2d 12, 14 (Ind. Ct.

App. 1994). In this case, Hutslar had knowledge of the cell phone’s presence and had the

capability to maintain dominion and control over it. Hutslar informed the jail personnel

of the phone’s exact location and discussed the lock code with Champ who brought the

cell phone to the jail. In our view, these circumstances sufficiently proved that Hutslar

was in constructive possession of the cell phone.

      In short, Hutslar’s arguments to the contrary are merely invitations for us to

reweigh the evidence and reevaluate the credibility of the witnesses, which we will not

do. Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011). Thus, we decline to set aside

Hutslar’s conviction.

      The judgment of the trial court is affirmed.

BARNES, J., and CRONE, J., concur.




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