Trent Fitzmaurice v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Jul 20 2015, 8:49 am
Pursuant to Ind. Appellate Rule 65(D), 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
Steven Knecht Gregory F. Zoeller
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Trent Fitzmaurice, July 20, 2015
Appellant-Defendant, Court of Appeals Case No.
08A02-1411-CR-782
v. Appeal from the Carroll Superior
Court
State of Indiana, The Honorable Kurtis Fouts,
Judge
Appellee-Plaintiff
Case No. 08D01-1403-FD-23
Crone, Judge.
Case Summary
[1] Trent Fitzmaurice appeals his convictions for class D felony dealing in a sawed-
off shotgun and class D felony theft. The dispositive issue presented for our
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review is whether the State presented sufficient evidence to support his
convictions. Finding the evidence sufficient, we affirm.
Facts and Procedural History
[2] Mary Giddens and her son Brock each owned a pickup truck which they parked
outside their home in Carroll County. One night in March 2014, Brock drove
his truck home between 9:00 and 10:00 and parked it near their driveway. The
following day, Brock returned home from school at about 3:30 p.m. and noticed
that the hood of his truck was slightly raised. He went over to the truck and
found that the battery was missing. Brock called his mother and asked if she
had taken the battery. She had not. A few hours later, Brock went to remove the
battery from his mother’s truck to put into his and discovered that the battery
was missing from her truck as well. At that point, both Brock and Mary called
the police to report the theft.
[3] Deputy Sheriffs Mitchell Catron and Spencer Kingery arrived, and Brock
reported that at around 5:30 that evening, his friend Colton arrived at the house
to pick him up. Upon Colton’s arrival, Brock noticed a white pickup truck that
he had never seen before driving slowly past their house. He watched the truck
drive to and park at an abandoned house about a half mile down the road.
Later, Brock saw a man sitting in a field near his home on a dirt bike. The man
was watching him and Colton as they pulled off in Colton’s vehicle. Once they
spotted the man, Colton slowed down so that they could get a better look. The
man on the dirt bike took off toward the abandoned house. When Brock
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returned home, he could see a mud trail from the field going to the abandoned
house.
[4] Deputy Kingery also noticed the mud trail coming from the west side of the
field and continuing to the abandoned house. Deputy Catron approached the
abandoned house and noticed a light on upstairs, as well as a white pickup
truck and green dirt bike with fresh mud on it that matched the description
Brock gave. The front door had a “No Trespassing” sign on it and a busted
lock. Deputy Catron knocked, and Fitzmaurice answered the door without a
coat or shoes. Another man named Michael Dye was also inside the house but
did not come to the door with Fitzmaurice. Deputy Catron explained why he
was there, and Fitzmaurice admitted that he was riding the dirt bike but denied
stealing the batteries. Deputy Catron asked to come inside to look for the
batteries, but Fitzmaurice refused. Fitzmaurice told the deputies that a man
named Angel owned the house, so he could not let them in without Angel’s
permission. He did not know Angel’s last name or phone number. Fitzmaurice
said that he was hired by Angel and was staying in the upstairs bedroom while
he fixed up the house. Police dispatch discovered that the owner of the house
was Angel Herrera, LLC.
[5] Fitzmaurice began to shiver when he was standing in the doorway and asked if
he could get his coat from upstairs. Deputy Kingery asked if he could follow
him for officer safety, and Fitzmaurice refused because “there [were] a couple
pipes up there that were used to smoke spice.” Tr. at 90. Deputy Kingery had
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Fitzmaurice and Dye step outside. He handcuffed them and told him that he
would be requesting a search warrant.
[6] When the search warrant was executed in the upstairs bedroom where
Fitzmaurice was staying, two batteries matching the description of the ones
stolen from the Giddenses were found. The batteries were wired to a lamp that
was lighting the room. A burnt pen tube used to ingest illegal substances was
found on top of one of the batteries. Additionally, a black hooded sweatshirt
was found on top of a duffle bag, and underneath the duffle bag was a sawed-off
twelve-gauge shotgun. Inside the sweatshirt pocket was a glass pipe used to
ingest illegal substances with apparent residue on it. Two rifles were also found
in the upstairs bedroom. The two rifles, which Fitzmaurice admitted belonged
to him, were lying right next to the duffle bag.
[7] The State charged Fitzmaurice with class D felony dealing in a sawed-off
shotgun, class D felony theft, and class A misdemeanor possession of
paraphernalia. The jury found him guilty as charged. This appeal ensued.
Discussion and Decision
Section 1 — The evidence is sufficient to sustain Fitzmaurice’s
class D felony dealing in a sawed-off shotgun conviction.
[8] Fitzmaurice challenges the sufficiency of the evidence supporting his felony
convictions. When reviewing the sufficiency of the evidence to support a
conviction, we examine only the probative evidence and reasonable inferences
that support the verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014).
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Whether the evidence is direct or circumstantial, we will not reweigh it or assess
the credibility of witnesses. Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995).
Rather, we consider only the evidence most favorable to the verdict and will
affirm the conviction unless no reasonable factfinder could find the elements of
the crime proven beyond a reasonable doubt. Morgan, 22 N.E.3d at 573.
[9] To sustain a conviction for class D felony dealing in a sawed-off shotgun, the
State was required to prove beyond a reasonable doubt that Fitzmaurice
possessed a sawed-off shotgun. Ind. Code § 35-47-5-4.1(a)(6). 1 Fitzmaurice
concedes that he was present in the house but argues that the State failed to
prove that he possessed the sawed-off shotgun. A person actually possesses
contraband when he has direct physical control over it. Gray v. State, 957
N.E.2d 171, 174 (Ind. 2011). “When the State cannot show actual possession,
a conviction for possessing contraband may rest instead on proof of
constructive possession.” Id. Since Fitzmaurice was not in actual possession of
the shotgun, the State was required to prove constructive possession.
[10] To prove constructive possession, the State had to show that Fitzmaurice had
both (1) the intent and (2) the capability to maintain dominion and control over
the sawed-off shotgun. Iddings v. State, 772 N.E.2d 1006, 1015 (Ind. Ct. App.
2002).
To prove the intent element, the State must demonstrate the
defendant’s knowledge of the presence of the contraband, which may
1
The legislature has repealed this statute effective July 1, 2015.
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be inferred from either the exclusive dominion and control over the
premises containing the contraband or, if the control is non-exclusive,
evidence of additional circumstances pointing to the defendant’s
knowledge of the presence of the contraband.
Id.
Additional circumstances have been shown by various means, including
incriminating statements made by the defendant, proximity of the contraband
to the defendant, location of the contraband within the defendant’s plain view,
and the mingling of the contraband with other items owned by the defendant.
Gee v. State, 810 N.E.2d 338, 341 (Ind. 2004). The capability requirement is met
when the State shows that the defendant was able to reduce the contraband to
his personal possession. Id. The nature of the place where the contraband is
found may be such that it would defy logic and human experience to believe
that adults with a possessory interest in the premises were unaware of the
presence of the contraband. Carnes v. State, 480 N.E.2d 581, 587 (Ind. Ct. App.
1985).
[11] Regarding the intent prong, Fitzmaurice admitted that he was staying in the
only upstairs bedroom and that there were illegal drug pipes in that room. It
could be inferred that if he knew that the drug pipes were present inside the
bedroom, he knew that the shotgun was also inside the bedroom. See id.
(considering bedroom occupancy a factor in determining whether defendant
had knowledge of contraband found in that bedroom), trans. denied. He also
testified that he was the only one with permission to stay at the house, and that
when he arrived, he went upstairs to the bedroom and set down his change of
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clothes. It could reasonably be inferred that the duffle bag and sweatshirt that
were comingled with the sawed-off shotgun were the change of clothes that
Fitzmaurice referenced. Based on the foregoing, we conclude that the State
introduced sufficient evidence of circumstances pointing to Fitzmaurice’s
knowledge of the presence of the sawed-off shotgun and his intent to maintain
dominion and control over it.
[12] Regarding capability, Fitzmaurice admitted that he was staying in the upstairs
bedroom, his belongings were there, and his truck and bike were located on the
premises. It would defy logic and human experience to believe that Fitzmaurice
was not able to reduce the shotgun to his personal possession. The shotgun was
inside the room where he was staying and comingled with his belongings where
he could easily access it and maintain dominion and control over it. Based on
the foregoing, a reasonable factfinder could find beyond a reasonable doubt that
Fitzmaurice constructively possessed the shotgun. Therefore, we affirm his
conviction for class D felony dealing in a sawed-off shotgun.
Section 2 — The evidence is sufficient to sustain Fitzmaurice’s
class D felony theft conviction.
[13] To sustain a conviction for class D felony theft, the State was required to prove
beyond a reasonable doubt that Fitzmaurice knowingly or intentionally exerted
unauthorized control over the Giddenses’ batteries, with the intent to deprive
them of any part of their value or use. Ind. Code § 35-43-4-2(a). Fitzmaurice
argues that the State failed to prove his guilt beyond a reasonable doubt.
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[14] A conviction may be based solely on circumstantial evidence, and on appeal
that evidence “need not overcome every reasonable hypothesis of innocence.”
Moore, 652 N.E.2d at 55. While the mere unexplained possession of recently
stolen property standing alone does not automatically support a conviction for
theft, such possession is to be considered along with the other evidence
regarding the circumstances of the possession. Holloway v. State, 983 N.E.2d
1175, 1179 (Ind. Ct. App. 2013). Such evidence may include whether the
property was possessed right next door as opposed to many miles away, and
how recent in time was the possession from the moment the item was stolen. Id.
“The fact of possession and all the surrounding evidence about the possession
must be assessed to determine whether any rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” Id.
[15] Fitzmaurice was staying in the bedroom of an abandoned residence half a mile
from where the batteries were stolen. The batteries were discovered inside that
bedroom within eighteen hours of their being stolen. With no electricity, the
batteries were the only source of light in the house. Such facts logically and
reasonably point to his guilt when viewed in the totality of the circumstances.
Fitzmaurice’s argument is merely a request to reweigh the evidence and credit
his own viewpoint, which the jury obviously did not. Appellate courts do not
reweigh the evidence or assess witness credibility. Therefore, we affirm
Fitzmaurice’s conviction for class D felony theft.
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[16] Affirmed.
Brown, J., and Pyle, J., concur.
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