MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           Oct 26 2015, 9:07 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
Paul J. Podlejski                                        Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Curtis Daugherty,                                        October 26, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1502-CR-121
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela G. Warner
Appellee-Plaintiff.                                      Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1309-FD-1832



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-121 | October 26, 2015   Page 1 of 6
                                          Statement of the Case
[1]   Curtis Daugherty appeals his conviction for receiving stolen property, as a Class

      D felony, following a jury trial. Daugherty raises two issues for our review,

      which we consolidate and restate as whether the State presented sufficient

      evidence to support his conviction.1 We affirm.


                                    Facts and Procedural History
[2]   On August 21, 2013, Robert Trotter, the manager of a Napa Auto Parts store in

      Anderson, left work at 6:00 p.m. and noticed nothing unusual. However, when

      he returned the next morning at 8:00 a.m., he noticed it was “awful[ly] warm”

      inside the store. Tr. at 202. Trotter inspected the store’s air conditioning unit

      and noticed that several metal pieces had been removed, apparently with a

      “hacksaw” or a similar tool, which prevented the air conditioning unit from

      functioning. Id. at 303. Trotter contacted John Carey, the owner of the

      building, to report the matter.


[3]   Carey “immediately went over to Phillips Iron and Metal [(‘Phillips’)],” a metal

      recycling plant four blocks from the store, “because the exact same scenario had

      happened before.” Id. at 228. At Phillips, Carey spoke with James Zickefoose.

      Zickefoose informed Carey that someone had indeed sold the missing metal




      1
        Daugherty styles one of his issues as whether the State presented sufficient evidence to support his
      conviction and styles his second issue as whether the trial court erred when it denied his motion for a directed
      verdict. Though styled as two issues, Daugherty’s arguments, and our resolution of them, are substantively
      identical.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-121 | October 26, 2015              Page 2 of 6
      pieces there earlier that morning. Zickefoose recognized the pieces from photos

      Carey had presented based on the angle of the cut. Zickefoose remembered the

      man who had sold the metal pieces to Phillips. Along with some physical

      descriptions, Zickefoose remembered his name was “Curt,” that he was driving

      a Chevrolet Blazer with “Just Married” written on the back window and sides,

      and that he was interested in buying some aluminum rims from Phillips. When

      Zickefoose later spoke to investigating officers, he informed them that Curt

      suggested he would be back to buy the rims. The officers told Zickefoose to call

      them if he returned.


[4]   Meanwhile, Carey took the stolen metal pieces back to his building. When he

      and Trotter compared the cuts on the pieces to the air conditioning unit, they

      found that the pieces “perfectly fit” the unit. Id. at 210.


[5]   Two days later, Daugherty, who lived in “close proximity” to the store and

      Phillips, went to Phillips to purchase the rims. Id. at 325. Zickefoose

      recognized him as the same person who had sold the stolen metal pieces two

      days prior, and Daugherty arrived at Phillips in the same Blazer with the same

      “Just Married” writing on it. See id. at 306. Zickefoose contacted officers with

      the Anderson Police Department, who arrived and arrested Daugherty.


[6]   The State charged Daugherty with receiving stolen property, as a Class D

      felony. Following the close of the State’s case-in-chief at the ensuing jury trial,

      Daugherty moved for a directed verdict, which the trial court denied.

      Daugherty, his wife, and his step-daughter then testified in his defense. The


      Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-121 | October 26, 2015   Page 3 of 6
      jury found him guilty, and the trial court entered its judgment of conviction and

      sentence accordingly. This appeal ensued.


                                     Discussion and Decision
[7]   Daugherty asserts that the State failed to present sufficient evidence to support

      his conviction for receiving stolen property, 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

      judgment and the reasonable inferences that may be drawn from that evidence

      to determine whether a reasonable trier of fact could conclude the 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.


[8]   To convict Daugherty of receiving stolen property, as a Class D felony, the

      State was required to show that Daugherty knowingly or intentionally

      “receive[d], retain[ed], or dispose[d] of the property of another person that

      ha[d] been the subject of theft.” Ind. Code § 35-43-4-2(b) (2012). As our

      supreme court has explained:


              the mere unexplained possession of recently stolen property
              standing alone does not automatically support a conviction for
              [receiving stolen property]. 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
      Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-121 | October 26, 2015   Page 4 of 6
              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) (emphasis added); see also

      Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct. App. 2005) (“Possession of

      recently stolen property when joined with . . . an unusual manner of acquisition

      may be sufficient evidence of knowledge that the property was stolen.”).


[9]   Here, Daugherty asserts that the State’s evidence demonstrated only that he had

      possession of the stolen metal pieces. Daugherty is incorrect. The State’s

      evidence demonstrated that Daugherty’s possession of the stolen items was

      close in time to the moment they were stolen: the items were stolen from the

      store sometime between 6:00 p.m. on August 21, 2013, and 8:00 a.m. on

      August 22, 2013, and Zickefoose witnessed Daugherty in possession of the

      items that same morning when Daugherty sold them to Phillips. Also,

      Daugherty was in close physical proximity to both the store and Phillips during

      the time in question, and he lived “not far” from both locations. Tr. at 325.

      Phillips was only four blocks from the Napa store. Moreover, we agree with

      the State that the manner in which the metal pieces had been removed from the

      store’s air conditioning unit—with a hacksaw or similar tool—“carried

      indications of damage and unusual acquisition.” Appellee’s Br. at 5. In sum,

      the State presented sufficient evidence from which a reasonable fact-finder

      could conclude that Daugherty knowingly received, retained, or disposed of the

      property of another that had been the subject of theft. Accordingly, we affirm

      his conviction.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-121 | October 26, 2015   Page 5 of 6
[10]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1502-CR-121 | October 26, 2015   Page 6 of 6
