MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Aug 07 2015, 8:17 am
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
Bernice A. N. Corley                                      Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

James Dewbrew,                                           August 7, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1412-CR-597
        v.                                               Appeal from the Marion County
                                                         Superior Court
State of Indiana,                                        The Honorable Steven Eichholtz,
Appellee-Plaintiff                                       Judge

                                                         Cause No. 49G20-1309-FB-60218



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015    Page 1 of 7
                                             Case Summary
[1]   James Dewbrew (“Dewbrew”) appeals his conviction for Unlawful Possession

      of a Firearm by a Serious Violent Felon, a Class B felony. 1 Dewbrew presents

      the sole issue of whether the State established the corpus delicti, such that

      Dewbrew’s confession was properly admitted into evidence. We affirm.



                              Facts and Procedural History
[2]   On September 7, 2013, Indianapolis Metropolitan Police Department

      (“IMPD”) Officer Steven Spina (“Officer Spina”) responded to a call of shots

      fired at a home on South Collier Street in Marion County. Upon arrival,

      Officer Spina discovered outside the home a .40 caliber bullet casing, a live

      round, a bullet hole in the siding, and a dog with a fresh gunshot wound to its

      mouth. Officer Spina took photographs of the scene and the dog’s mouth. He

      also collected the bullet casing.


[3]   On September 9, 2013, IMPD Detective Russell O’Connor (“Detective

      O’Connor”) was assigned to investigate the shooting. Detective O’Connor

      learned that Dewbrew, his girlfriend Jackie Bundy, his minor daughter, and

      James Capps were at the scene of the incident. After locating Dewbrew in a

      home on South Addison Street, Detective O’Connor obtained a search warrant




      1
        Ind. Code § 35-47-4-5. Due to substantial revisions to the Indiana Code effective July 1, 2014, this offense
      is now a Level 4 felony. In this opinion, we refer to the versions of the statutes in effect at the time of
      Dewbrew’s offense.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015                Page 2 of 7
      for Dewbrew and any firearms on the property. On September 10, 2013, the

      warrant was executed by an IMPD SWAT team and Dewbrew was taken into

      custody. Dewbrew initially declined to speak to police officers without an

      attorney, but later asked to speak to Detective O’Connor regarding the dog that

      was shot.


[4]   After Dewbrew waived his Miranda rights, Detective O’Connor interviewed

      him about the Collier Street incident and “learned from [Dewbrew] that the gun

      was at his father’s house[.]” (Tr. 33.) Detective O’Connor went to Dewbrew’s

      father’s house and retrieved a silver Taurus handgun. Dewbrew was then

      transported to IMPD’s Southwest District headquarters where, in a videotaped

      interview, Dewbrew confessed to possessing a handgun and shooting the dog

      during the Collier Street incident. Dewbrew was placed under arrest. Forensic

      testing subsequently revealed that the casing found on Collier Street was fired

      by the handgun retrieved from Dewbrew’s father’s home.


[5]   On September 16, 2013, Dewbrew was charged with: Unlawful Possession of a

      Firearm by a Serious Violent Felon, a Class B felony (“Count 1”); Criminal

      Recklessness, as a Class C felony 2 (“Count 2”); Pointing a Firearm at Another

      Person, as a Class D felony 3 (“Count 3”); and Attempted Killing of a Domestic

      Animal, as a Class D felony 4 (“Count 4”). On September 26, 2014, the State



      2
          I.C. § 35-42-2-2(c)(3).
      3
          I.C. § 35-47-4-3.
      4
          I.C. §§ 35-46-3-12(d) & 35-41-5-1.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015   Page 3 of 7
      moved to amend the charging information as to Count 1. 5 The State also

      moved to add a fifth count, alleging that Dewbrew was a habitual offender. 6

      The trial court granted the motions on September 29, 2014.


[6]   Dewbrew waived his right to a jury trial. On the State’s motion, the trial court

      dismissed Counts 2 through 4. As to Count 1, Dewbrew stipulated to a prior

      conviction for criminal confinement, a “serious violent felony” under Indiana

      Code section 35-47-4-5. 7 As to the habitual offender count, Dewbrew also

      stipulated to having two prior felony convictions for Theft, as Class D felonies.


[7]   A bench trial was held on October 15, 2014. On October 17, 2014, Dewbrew

      was found guilty of Unlawful Possession of a Firearm by a Serious Violent

      Felon. The court also adjudicated him a habitual offender. On November 3,

      2014, Dewbrew was sentenced to twenty years in the Indiana Department of

      Correction, enhanced by five years for being a habitual offender. In this belated

      appeal, Dewbrew challenges only his conviction for Unlawful Possession of a

      Firearm by a Serious Violent Felon.



                                    Discussion and Decision



      5
       The State sought to amend the offense date from “on or about September 7, 2013” to “on or about
      September 7, 2013 to September 10, 2013.” (App. 72.)
      6
          I.C. § 35-50-2-8.
      7
          I.C. § 35-47-4-5(b)(7).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015          Page 4 of 7
[8]   Although Dewbrew frames his argument as one challenging the sufficiency of

      the evidence to support his conviction, the substance of his argument is that his

      confession to Unlawful Possession of a Firearm should not have been admitted

      because the State failed to establish the corpus delicti, that is, the body of the

      crime.


[9]   To establish the corpus delicti, the State must present evidence – independent of

      the defendant’s statement – that shows a criminal act actually occurred. Hurt v.

      State, 570 N.E.2d 16, 20 (Ind. 1991). As our supreme court has explained:

               The corpus delicti rule arose from judicial hesitancy to accept without
               adequate corroboration a defendant’s out-of-court confession of
               criminal activity. The primary function of the rule is to reduce the risk
               of convicting a defendant based on his confession for a crime that did
               not occur.
      Willoughby v. State, 552 N.E.2d 462, 466 (Ind. 1990) (citations omitted).

      Independent evidence of the crime need not be shown beyond a reasonable

      doubt nor demonstrate prima facie proof as to each element of the charged

      offense, but must support an inference that the crime was committed. Id. at

      467. Circumstantial evidence alone may establish the corpus delicti. Evans v.

      State, 460 N.E.2d 500, 502 (Ind. 1984). The order in which evidence is

      introduced is not vital; thus, it is not error to admit a confession if the

      supporting evidence is introduced after the confession’s admission. Hurt, 570

      N.E.2d at 20. If the totality of the evidence presented at trial establishes the

      crime charged in the information or indictment was committed, a defendant’s

      extrajudicial statements are admissible. Evans, 460 N.E.2d at 502.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015   Page 5 of 7
[10]   Under Indiana Code section 35-47-4-5(c), a serious violent felon who

       knowingly or intentionally possesses a firearm commits unlawful possession of

       a firearm by a serious violent felon, a Class B felony. The State charged that

       “Dewbrew, being a serious violent felon, that is: having been convicted of

       criminal confinement . . . on November 15, 2011, did on or about September 7,

       2013 to September 10, 2013, knowingly or intentionally possess a firearm, that

       is: a handgun[.]” (App. 73.) Because Dewbrew stipulated to a prior conviction

       for a serious violent felony, the only issue for trial was whether he knowingly or

       intentionally possessed a firearm within the alleged timeframe. In his

       videotaped interview, Dewbrew confessed to possessing a handgun and

       shooting a dog during the Collier Street incident on September 7, 2013.


[11]   At trial, the State introduced evidence that on September 7, 2013, in response to

       a call of shots fired at a home on Collier Street, Officer Spina collected evidence

       from the home including a .40 caliber bullet casing and photographs of a live

       round on the ground, bullet hole in the home, and fresh gunshot wound to a

       dog’s mouth. This evidence permits the inference that someone possessed a

       gun on Collier Street on or about September 7, 2013. There was therefore

       sufficient independent evidence that possession of a firearm occurred to support

       the admission of Dewbrew’s confession.



                                               Conclusion



       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015   Page 6 of 7
[12]   The State presented sufficient independent evidence of the crime to support

       Dewbrew’s confession to Unlawful Possession of a Firearm by a Serious

       Violent Felon.


[13]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-597 | August 7, 2015   Page 7 of 7
