Shawn Raymond Ault v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 14 2019, 6:39 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shawn Raymond Ault, March 14, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1898
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff. Flowers, Judge
The Honorable James Snyder,
Commissioner
Trial Court Cause No.
49G20-1603-F5-9317
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1898 | March 14, 2019 Page 1 of 9
[1] Following a bench trial, Shawn Raymond Ault was convicted of Level 5 felony
carrying a handgun without a license. His sole issue on appeal is whether the
circumstantial evidence presented by the State was sufficient to convict him.
[2] We affirm.
Facts & Procedural History
[3] Between 5:00 and 6:00 a.m. on November 18, 2015, Indianapolis resident
Martin Bucio Rojas started the engine of his black 2006 BMW that was parked
on the street in front of his house and left it running while he went back inside
his home to get his phone. Bucio Rojas came out about a minute later to find
that his car had been stolen. He reported the incident to police, his insurer, and
the dealer.
[4] Around 5:00 p.m. that day, Indianapolis Metropolitan Police Officer Lauren
Carmack was dispatched to a location on Belmont Avenue in Indianapolis on a
report that a vehicle matching the BMW’s description had been found. Upon
arrival, Officer Carmack observed the subject BMW parked in a lot, and she
surveilled the unoccupied vehicle from a few houses away. She observed a
white male, wearing a black tank top, black pants, and a hat, walk out of the
residence at 1426 S. Belmont, which adjoined the lot where the BMW was
parked. The man got into the BMW and left, driving northbound on Belmont.
Seconds later, IMPD Officer Cory Drum, who also had been dispatched to the
area, saw the BMW as it turned onto another street. Officer Drum pulled
behind the BMW, and Officer Carmack followed Officer Drum. Both officers
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were in fully marked police cars, but were not using lights or sirens. After
several turns, the officers observed the BMW turn into an alley. Officer
Carmack briefly lost sight of the BMW as it turned, but followed it into the
alley and observed the BMW parked on a cement parking pad. Officers
Carmack and Drum parked their vehicles, exited, and approached the BMW.
As they approached, they saw a white male wearing the same black clothing
and hat, standing within five to ten feet of the car. He looked at them and ran.
[5] Officers Drum and Carmack began chasing the man, later identified as Ault.
As they passed the BMW, they observed that the driver’s side door was open,
and Officer Drum stopped to confirm that no one was inside the vehicle. She
observed a black handgun on the ground, in the grass, between the open car
door and the body of the car. Less than a foot from the gun was a magazine.
The grass was wet from recent rain, but the gun was dry, so Officer Drum
“kn[e]w it hadn’t been there long.” Transcript Vol. 2 at 19. Her recollection at
trial was that the vehicle “was running still” but she could not “say for sure”
that it was. Id. Officer Drum stayed at the vehicle with the gun, which was
eventually collected by an evidence team.
[6] Meanwhile, Officer Carmack continued to chase Ault, but lost sight of him.
One or more individuals who were in the street pointed east, indicating the
direction that the man had gone. During this time, local resident Whitney
Thorne was in the alley smoking a cigarette with two other individuals. Ault,
who Thorne recalled was wearing jeans, a tank top, and a shoe on one foot and
just a sock on the other, approached her and her friends and asked to use a
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phone or for a ride, and they refused. Ault then ran along the side of a house
and jumped a fence. Thorne and her friends lost sight of him, but when she
saw him again, he was wearing only “camo basketball shorts.” Id. at 53, 62.
Thorne went to the side of the house where she had seen Ault run and found his
jeans, shirt, hat, and shoe pushed up against the house. About a minute later,
Thorne and her friends flagged down a passing police officer and told him what
they had seen. Officers set up a perimeter, and Ault was apprehended less than
two blocks from Thorne’s house about four to six minutes after the chase began.
IMPD contacted Bucio Rojas at around 8:00 p.m. that day to advise him that
they had found his car.
[7] On March 10, 2016, the State charged Ault with Level 5 felony carrying a
handgun without a license (Count 1), Level 6 felony auto theft (Count 2), and
Class A misdemeanor resisting law enforcement (Count 3). Prior to trial, the
trial court granted the State’s motion to dismiss Count 3.
[8] At the bench trial, Bucio Rojas testified that he did not own a firearm and to his
knowledge there was no firearm in his BMW before it was stolen. Officer Hittel
testified that, after he apprehended Ault, Ault told him that he was running
away from somebody who was trying to beat him up. Officer Hittel did not see
anyone chasing Ault. IMPD Detective Tod Puletz testified that no latent prints
were observed on the gun, the magazine, or the ammunition. DNA swabs were
taken from those items, but no match was made with Ault’s buccal swabs.
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[9] At the conclusion of the State’s evidence, Ault sought and was granted a
directed verdict on Count 2, auto theft, but the court denied Ault’s motion as to
Count 1, carrying a handgun without a license. Ault’s brother, Charles,
testified for the defense. He stated that, sometime between noon and 4:00 p.m.
on the date in question, he stopped at his home at 1426 S. Belmont, which is
where Officer Carmack had located the BMW later that day. Charles
discovered his girlfriend at home with Ault and another female. Suspecting that
the three were having “a rendezvous,” Charles testified that he angrily grabbed
a knife and threatened to kill Ault, who ran out the front door, across the street,
and through a neighbor’s yard, wearing only shorts or boxers and no shirt. Id.
at 109. After Ault ran away from the house, Charles stayed and argued with his
girlfriend for twenty-five to thirty minutes and then went back to work. He said
that he did not see a black BMW at the house when he came home or left. He
learned later that day that Ault had been arrested.
[10] Pursuant to a stipulation, evidence was admitted that Ault had a prior
conviction of Class D felony theft. The trial court rejected the defense theory
that Ault’s being at and running from Charles’s home sometime on the
afternoon in question provided an alibi, and it found Ault guilty of Level 5
felony carrying a handgun without a license. Ault now appeals.
Discussion & Decision
[11] Ault claims the evidence is insufficient. When reviewing a claim of insufficient
evidence, the appellate court will neither reweigh the evidence nor judge the
credibility of the witnesses. Ericksen v. State, 68 N.E.3d 597, 600 (Ind. Ct. App.
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2017), trans. denied. We consider only the probative evidence and reasonable
inferences supporting the verdict. Id. We affirm “if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a reasonable
trier of fact to find the defendant guilty beyond a reasonable doubt.” Id. Where
the evidence of guilt is circumstantial, “‘the question for the reviewing court is
whether reasonable minds could reach the inferences drawn by the jury; if so,
there is sufficient evidence.’” Jones v. State, 924 N.E.2d 672, 674 (Ind. Ct. App.
2010) (quoting Whitney v. State, 726 N.E.2d 823, 825 (Ind. Ct. App. 2000)). We
need not determine if the evidence is capable of overcoming every reasonable
hypothesis of innocence. Cole v. State, 69 N.E.3d 552, 556 (Ind. Ct. App. 2017),
trans. denied.
[12] To convict Ault of carrying a handgun without a license, the State was required
to prove beyond a reasonable doubt that he carried a handgun in any vehicle or
on or about his body without a license. 1 Ind. Code § 35-47-2-1(a). The offense
is a Level 5 felony if the person has been convicted of a felony within fifteen
years before the date of the offense. I.C. § 35-47-2-1(e)(2)(B). To satisfy the
elements of the offense, the State must prove the defendant had either actual or
constructive possession of the handgun. Deshazier v. State, 877 N.E.2d 200, 204
(Ind. Ct. App. 2007), trans. denied. “Actual possession occurs when a defendant
has direct physical control over an item, whereas constructive possession occurs
1
Proof that the defendant did not possess a valid license is not an element of the offense, but rather is a
defense for which the defendant bears the burden of proof. Deshazier v. State, 877 N.E.2d 200, 205 n.4 (Ind.
Ct. App. 2007), trans. denied.
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when a person has the intent and capability to maintain dominion and control
over the item.” Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct. App. 2011).
[13] To fulfill the intent element of constructive possession, the State must
demonstrate the defendant’s knowledge of the presence of the firearm. Id. at
784. In cases where the accused has exclusive possession of the premises on
which contraband is found, an inference is permitted that he or she knew of the
presence of contraband and was capable of controlling it. Id.; see also Causey v.
State, 808 N.E.2d 139, 143 (Ind. Ct. App. 2004) (knowledge may be inferred
from exclusive dominion and control over the premises containing the firearm).
Where the control is non-exclusive, knowledge may be inferred from evidence
of additional circumstances pointing to the defendant’s knowledge of the
presence of the firearm. Causey, 808 N.E.2d at 143. These additional
circumstances may include: (1) incriminating statements by the defendant; (2)
attempted flight or furtive gestures; (3) proximity of the firearm to the
defendant; (4) location of the firearm within the defendant’s plain view; and (5)
the mingling of a firearm with other items owned by the defendant. Deshazier,
877 N.E.2d at 206. To fulfill the capability requirement of constructive
possession, the State must demonstrate that the defendant had the ability to
reduce the firearm to his personal possession. K.F. v. State, 961 N.E.2d 501, 510
(Ind. Ct. App. 2012), trans. denied; Griffin, 945 N.E.2d at 783.
[14] Ault argues that where, as here, no one saw him in possession of the handgun
and no fingerprint or DNA match was found, the State did not establish that he
had direct physical control over the handgun and thus did not prove actual
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possession. The State maintains that it presented sufficient evidence from
which a reasonable inference could be drawn that Ault had actual possession of
the gun. We find no need to resolve this actual possession dispute, however,
because even assuming that Ault is correct, we find that the State presented
sufficient evidence that Ault constructively possessed the handgun. That is,
although Ault claims that the State showed only “Ault’s mere presence at a
location where the gun was found” and that the State’s evidence to demonstrate
Ault’s knowledge of the presence of the gun was “entirely absent,” we disagree.
Appellant’s Brief at 12, 15.
[15] Here, Officer Carmack observed Ault enter the stolen BMW and drive away.
He was the only occupant. Officers Carmack and Drum followed Ault, and he
made a few quick turns, parked the BMW, and quickly abandoned it, with the
driver’s door open and possibly the engine running. Ault ran when he saw the
officers. As the officers began to chase him, Officer Drum saw the handgun
and magazine, laying in the wet leaves and grass right outside the car, in the
area between the opened door and the car. The handgun was dry indicating to
Officer Drum that it had not been there long. No other vehicles were parked by
the BMW and police did not see any other persons near the car. Bucio Rojas
did not have a gun and had no reason to believe a gun was in the BMW when it
was stolen. Ault shed most of his clothes and continued running until he was
apprehended minutes later. Although Ault made no incriminating statements,
he certainly attempted flight, and the gun was found in plain view and in
proximity to where he had quickly exited the stolen BMW. This is sufficient
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evidence from which the trier of fact could reasonably have inferred that Ault
was in possession of the handgun. See e.g., Wallace v. State, 722 N.E.2d 910, 913
(Ind. Ct. App. 2000) (State presented sufficient evidence to support carrying
handgun without license conviction where defendant was passenger in car from
which shots were fired and police saw defendant passing something to a back
seat passenger who then threw objects, later determined to be four firearms, out
of car window).
[16] Judgment affirmed.
Najam, J. and Pyle, J., concur.
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