Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016 Page 1 of 8

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

Michael R. Fisher

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

Desmond Aaron,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 18, 2016

Court of Appeals Case No.

49A05-1511-CR-2003

Appeal from the Marion Superior 

Court

The Honorable Peggy R. Hart, 

Commissioner

The Honorable Shatrese M. 

Flowers, Judge

Trial Court Cause No.

49G20-1502-F4-5316

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016 Page 2 of 8

[1] Following a jury trial, Desmond Aaron (“Aaron”) was convicted in Marion 

Superior Court of Level 4 felony unlawful possession of a firearm by a serious 

violent felon (“SVF”), Level 6 felony possession of cocaine, Level 6 felony 

possession of a narcotic drug, Class B misdemeanor possession of marijuana, 

and was adjudicated a habitual offender. Aaron was ordered to serve an 

aggregate twenty-year sentence. Aaron appeals and argues that the State failed 

to present sufficient evidence to support his Level 4 felony unlawful possession 

of a firearm by a SVF conviction. 

[2] We affirm.

Facts and Procedural History

[3] In 2014, Milburn Austin (“Austin”) made an agreement to pay Aaron for a 

drug debt incurred by Ladana (“Baby D”), Austin’s female companion and a 

prostitute. Over the course of several months, Austin paid Aaron over $2,000. 

However, in late 2014, Austin discovered that Baby D was accruing new debt 

with Aaron that Austin did not agree to pay. Austin told Aaron that he refused 

to make any further payments. Aaron was upset with Austin’s refusal to pay 

and began threatening Austin.

[4] Around 1:00 a.m. on January 30, 2015, one of Austin’s friends, who was inside 

his apartment, notified him that someone was beating on the side of the 

apartment. Austin returned home to find that his friend had already left but 

heard more beating on the side of the apartment. Austin heard a voice that he 

recognized as Aaron’s say, “I know you all in there. Let me in. . . You playing 
Court of Appeals of Indiana | Memorandum Decision 49A05-1511-CR-2003 | July 18, 2016 Page 3 of 8

games.” Tr. pp. 162-64. Austin then peeked out of the curtain, and four shots 

were fired toward the apartment window. One bullet lightly struck Austin in the 

stomach. Austin then looked out of his upstairs window and saw Aaron 

returning to his car with what looked like a gun. Later that same morning, 

Aaron sent Austin several text messages, which stated: “Give me a call old 

man,” “I’m glad you think it’s a game,” and “U got 2 days to get me my change 

sir.” Tr. p. 175; State’s Ex. Vol., Ex. 11-13.

[5] Ten days later, on February 9, 2015, Austin reported the shooting to the police. 

Austin claimed that he did not report the incident because he was afraid that it 

would delay his scheduled hernia surgery. Austin also testified that he was 

waiting to calculate his next move with Aaron. Tr. pp. 210-11. After Austin 

reported the shooting, he was taken to the hospital for examination, and officers 

investigated Austin’s apartment. The police discovered holes accompanied by 

broken glass in Austin’s window, along with holes in a blanket covering the 

window, a hole in an interior door, and a shell on the floor. A shell casing was 

later found outside of Austin’s apartment.

[6] Two days later, on February 11, 2015, officers obtained a warrant, searched 

Aaron’s residence on Watson Road, and seized his cell phone. Officers 

explained to Aaron that his cell phone was included on the warrant. He 

indicated that his phone was in his pocket. An officer then reached in Aaron’s 

pocket to collect the phone and found three baggies filled with what appeared to 

be drugs. A later test revealed that the bags contained .38 grams of marijuana, 

2.2 grams of cocaine, and .72 grams of heroin. Tr. p. 313. The officers also 
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found several rounds of live ammunition, a magazine for a semi-automatic 

pistol, and a Ruger revolver case after searching Aaron’s residence. However, 

no firearms were discovered. 

[7] A search of Aaron’s cell phone recovered two videos that cell phone examiner 

Detective Grant Melton (“Detective Melton”) explained were created on 

February 9, 2015, at 8:26 p.m. and 8:49 p.m. based on the file names. The first

video depicted Aaron holding what appeared to be a gun and singing a song 

about crime and guns. In the second video, Aaron did not appear but sang the 

same song and displayed what appeared to be three guns in the bathroom.

[8] Phone record expert Detective Benjamin Bierce (“Detective Bierce”) also 

confirmed that based on Aaron’s cell phone provider’s records, around 1:00 

a.m. on January 30, 2015, Aaron made phone calls that were not consistent 

with him being at his home on Watson Road, but close to Austin’s apartment. 

In addition, Aaron received several phone calls around 8:00 p.m. on February 

9, 2015, that were routed through a tower consistent with Aaron being at 

Austin’s home. 

[9] On February 13, 2015, the State charged Aaron with Level 4 felony unlawful 

possession of a firearm by a SVF, Level 5 felony battery by means of a deadly 

weapon, Level 5 felony criminal recklessness, Level 6 felony possession of 

cocaine, Level 6 felony possession of a narcotic drug, Class A misdemeanor 
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possession of marijuana1, and alleged Aaron to be a habitual offender. A jury 

trial was held on October 13-14, 2015. Aaron was convicted of Level 4 felony 

unlawful possession of a firearm by a SVF, Level 6 felony possession of 

cocaine, Level 6 felony possession of a narcotic drug, Class B misdemeanor 

possession of marijuana, and was adjudicated a habitual offender. At the 

October 30, 2015 sentencing hearing, the trial court ordered Aaron to serve an 

aggregate twenty-year sentence. Aaron now appeals his Level 4 felony unlawful 

possession of a firearm by a SVF conviction.

Discussion and Decision

[10] Aaron argues that his conviction was not supported by sufficient evidence. 

“Upon a challenge to the sufficiency of evidence to support a conviction, a 

reviewing court does not reweigh the evidence or judge the credibility of 

witnesses, and respects the jury’s exclusive province to weigh conflicting 

evidence. Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct. App. 2007) 

(quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). We consider only 

probative evidence and reasonable inferences supporting the verdict. Id. We 

must 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.

 

1 The State enhanced this charge to Class A misdemeanor because Aaron had a previous conviction for 

possession of marijuana, but Aaron ultimately was only convicted of Class B misdemeanor. 
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[11] The State was required to prove beyond a reasonable doubt that Aaron:

[was] a serious violent felon who knowing or intentionally 

possesse[d] a firearm. 

Ind. Code § 35-47-4-5(c). A firearm is defined by Indiana code section 35-47-1-5 

as:

any weapon: (1) that is (A) capable of expelling; or (B) designed 

to expel; or (2) that may readily be converted to expel; a 

projectile by means of an explosion. 

[12] Aaron disputes that he possessed a firearm as defined by Indiana Code section 

35-47-4-5(c). He contends that no firearm was recovered when officers executed 

the search warrant and that the only evidence the State presented to show 

possession was two videos involving what appears to be firearms found on his 

cell phone.

[13] At trial, Austin testified that early in the morning of January 30, 2015, Aaron 

came to Austin’s apartment and fired several shots through the window. Austin 

identified Aaron by his voice that he had heard on numerous prior occasions 

and saw Aaron when he peaked out of the window before the shots were fired. 

One of the bullets grazed Austin’s stomach, causing a small wound and a 

subsequent scar that he showed to the jury. Austin also explained that Aaron 

was threatening him because he owed Aaron money for a drug debt incurred by 

a female companion and prostitute that Austin had agreed to pay.
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[14] The State also presented testimony from cellular phone records expert Detective 

Bierce, who indicated that based on the data obtained from Aaron’s cellular 

service provider, Aaron’s cell phone was near Austin’s home during the 

morning of the January 30, 2015 shooting. Around 1:00 a.m., Aaron made 

several phone calls that were consistent with him not being at home, but in an 

area close to Austin’s apartment. 

[15] Further, after Austin reported the shooting, officers observed holes in Austin’s 

window, holes in a blanket covering the window, a hole in an interior door, and 

a discharged bullet on the ground. Officers also found a shell casing outside of 

Austin’s apartment. Police then obtained a search warrant of Aaron’s residence 

and discovered several rounds of live ammunition, a magazine for a semiautomatic pistol, and a Ruger revolver case. Firearms Identification Forensic 

Scientist Michael Cooper (“Cooper”) testified that the gun that Aaron was 

holding in the video was a revolver and consistent with a gun that uses the 

ammunition found at Austin’s apartment. 

[16] Officers also seized Aaron’s cell phone pursuant to the search warrant and 

found a video of Aaron singing a song about guns and crime with what appears 

to be a revolver and another video of Aaron not pictured but singing with what 

appears to be several guns in the bathroom. Detective Melton testified that the 

videos were both created on the evening of February 9, 2015, as evidenced by 

the file names on the phone. 
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[17] The jury has the discretion to weigh the credibility of the witnesses and consider 

all of the evidence presented at trial. Further, a jury may rely on its collective 

common sense and knowledge acquired through everyday experiences when 

determining whether an element of a crime exists. Halsema v. State, 823 N.E.2d 

668, 673 (Ind. 2005). Here, the jury had an opportunity to review the videos 

several times and draw conclusions regarding the nature of the firearms and

whether Aaron possessed and/or used one or more of those displayed, based on 

their common sense and knowledge. This was a proper deliberative process, 

and we must respect the jury’s discretion to believe what it chose to believe. See

McHenry, 820 N.E.2d at 126.

[18] For all of these reasons, we conclude that the State presented sufficient evidence 

to support Aaron’s Level 4 felony unlawful possession of a firearm by a SVF.

[19] Affirmed. 

Vaidik, C.J., and Barnes, J., concur.