MEMORANDUM DECISION

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

Steven Knecht

Vonderheide & Knecht, P.C.

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Trent Fitzmaurice,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 20, 2015

Court of Appeals Case No.

08A02-1411-CR-782

Appeal from the Carroll Superior 

Court

The Honorable Kurtis Fouts,

Judge

Case No. 08D01-1403-FD-23

Crone, Judge.

Case Summary

[1] Trent Fitzmaurice appeals his convictions for class D felony dealing in a sawedoff 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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