        MEMORANDUM DECISION

        Pursuant to Ind. Appellate Rule 65(D),                             Nov 10 2015, 9:33 am
        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
        Thomas P. Keller                                        Gregory F. Zoeller
        South Bend, Indiana                                     Attorney General of Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
            COURT OF APPEALS OF INDIANA

        Matthew Mason,                                          November 10, 2015
        Appellant-Defendant,                                    Court of Appeals Case No.
                                                                71A05-1502-CR-71
                v.                                              Appeal from the St. Joseph
                                                                Superior Court
        State of Indiana,                                       The Honorable John M.
        Appellee-Plaintiff                                      Marnocha, Judge
                                                                Trial Court Cause No.
                                                                71D02-1406-FC-116



        Mathias, Judge.


[1]     Following a bench trial, Matthew Mason (“Mason”) was convicted in St.

        Joseph Superior Court of Class C felony carrying a handgun without a license


        Court of Appeals of Indiana | Memorandum Decision 71A05-1502-CR-71 | November 10, 2015    Page 1 of 5
        within 1,000 feet of school property, Class A misdemeanor possession of

        marijuana, and Class B misdemeanor false informing. He was ordered to serve

        an aggregate three-year sentence in the Department of Correction. Mason now

        appeals and argues that the State failed to present sufficient evidence to support

        his conviction of Class C felony carrying a handgun without a license within

        1,000 feet of school property.

[2]     We affirm.

                                       Facts and Procedural History


[3]     On the afternoon of June 3, 2014, South Bend Police Officers Nicholas Pogotis

        (“Officer Pogotis”) and Anthony Dertz (“Officer Dertz) were dispatched

        separately to respond to a complaint regarding men with handguns. When

        Officer Pogotis arrived, he observed three to four males standing near a van,

        one being Mason. Officer Pogotis approached the men from the west side of the

        parking lot on foot, while Officer Dertz pulled up from the east side of the

        parking lot in his squad car. As Officer Pogotis walked toward the group, he

        noticed one of the men, later identified as Mason, crouch down and throw an

        item underneath the van. Officer Pogotis identified the object as a gun with

        white grips from about twelve feet away. He later learned that what appeared to

        be a grip was actually white medical tape.


[4]     Mason was handcuffed and placed into Officer Dertz’s police car. Mason then

        identified himself to the officers as Matthew Spears from Arkansas. After

        securing Mason, the officers retrieved and photographed a bag of marijuana,

        Court of Appeals of Indiana | Memorandum Decision 71A05-1502-CR-71 | November 10, 2015   Page 2 of 5
        CDs, a pack of cigarettes, and the silver handgun that Mason threw under the

        van. Tr. p. 41. When Officer Dertz returned to his vehicle to read Mason his

        Miranda rights, Mason admitted to lying about his name and stated that the

        marijuana belonged to him. Tr. p. 44.

[5]     The State charged Mason with Class C felony carrying a handgun without a

        license within 1,000 feet of school property, Class A misdemeanor possession of

        marijuana, and Class B misdemeanor false informing. At trial, Mason

        stipulated that the location where the officers recovered the handgun was within

        1,000 feet of school property. However, he claimed that the handgun did not

        belong to him. The trial court found Mason guilty of three charges and ordered

        him to serve an aggregate three-year sentence in the Department of Correction.

        Mason now appeals.

                                          Discussion and Decision


[6]     Mason argues that the State failed to present sufficient evidence to support his

        conviction of Class C felony carrying a handgun without a license within 1,000

        feet of school property. “Upon a challenge to the sufficiency of evidence to

        support a conviction, a reviewing court does not reweigh the evidence or judge

        the credibility of witnesses, and respects the [trier of fact’s] exclusive province to

        weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

        We consider only probative evidence and reasonable inferences supporting the

        verdict. Id. We must affirm if the probative evidence and reasonable inferences




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         drawn from the evidence could have allowed a reasonable trier of fact to find

         the defendant guilty beyond a reasonable doubt. Id.


[7]      To convict Mason of carrying a handgun without a license within 1,000 feet of

         school property, the State was required to prove that: “Mason did knowingly

         unlawfully carry a handgun on his person, while he was not in his dwelling, on

         his property, or fixed place of business, without a license and was within one

         thousand feet of a school.” Tr. p. 28. See Ind. Code § 35-47-2-1(a) (2014); Ind.

         Code § 35-47-2-23(c) (2014).


[8]      Carrying a handgun can be shown by either actual or constructive possession.

         Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Actual possession occurs

         when a person has direct physical control over an item. Constructive possession

         occurs when somebody has the intent and capability to maintain dominion and

         control over the item. Id.


[9]      At trial, Officer Pogotis testified that he observed Mason crouch down and

         throw a silver gun underneath the van. The gun was recovered shorty after

         Mason’s arrest, along with a bag of marijuana and other items. Officer Pogotis’s

         testimony supports a reasonable inference that Mason actually possessed the

         gun before abandoning it under the van.

[10]     It was within the discretion of the trial court to weigh the officers’ credibility

         against Mason’s credibility. It is up to the fact-finder to determine the credibility

         of each witness, and here the trial court believed the testimony of Officer



         Court of Appeals of Indiana | Memorandum Decision 71A05-1502-CR-71 | November 10, 2015   Page 4 of 5
         Pogotis and Officer Dertz. We must respect this determination. See McHenry,

         820 N.E.2d at 126.

[11]     For all of these reasons, we conclude that the State presented sufficient evidence

         to support Mason’s conviction. We therefore affirm his conviction for carrying

         a handgun without a license within 1,000 feet of school property.


[12]     Affirmed.


         Baker, J., and Bailey, J., concur.




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