Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 21 2012, 9:05 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
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estoppel, or the law of the case. court of appeals and
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JODY BREWSTER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1109-CR-450
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Reuben Hill, Judge
Cause No. 49F18-1008-FD-59633
March 21, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Jody Brewster appeals from his conviction for Class D
felony Theft,1 contending that the State failed to produce sufficient evidence to sustain his
conviction. We affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 10:30 to 11:00 a.m. on July 31, 2010, Lisa Alvey was awakened
by a noisy pickup truck parked in the driveway of her neighbor Andrew Deckard’s house.
Deckard’s house had burned two weeks previously and the ruins were protected by a
small bright orange plastic fence, a six-foot chain-link fence with a gate outside of that,
and “keep out” signs conspicuously posted. The chain-link fence had been opened and
the orange fence torn to provide a pathway for the truck. Deckard soon arrived from his
nearby rental property, having been told by another neighbor about the truck. Deckard
observed Brewster and Michael Clauss loading scrap metal from the ruins of his house
and garage into the back of the truck. Deckard had not given either Brewster or Clauss
permission to take anything from his house. When Deckard confronted the pair and
accused them of stealing, Brewster said nothing.
On August 3, 2010, the State charged Brewster with Class D felony theft. On July
21, 2011, a jury found Brewster guilty as charged. On August 9, 2011, the trial court
sentenced Brewster to 545 days of incarceration with 541 days suspended to probation.
DISCUSSION AND DECISION
Whether the State Produced Sufficient Evidence to
Sustain Brewster’s Theft Conviction
1
Ind. Code § 35-43-4-2(a) (2010).
2
Our standard of review for challenges to the sufficiency of the evidence supporting
a criminal conviction is well-settled:
In reviewing a sufficiency of the evidence claim, the Court neither
reweighs the evidence nor assesses the credibility of the witnesses. We
look to the evidence most favorable to the verdict and reasonable inferences
drawn therefrom. We will affirm the conviction if there is probative
evidence from which a reasonable jury could have found Defendant guilty
beyond a reasonable doubt.
Vitek v. State, 750 N.E.2d 346, 352 (Ind. 2001) (citations omitted).
In order to convict Brewster of Class D felony theft, the State was required to
prove that he “knowingly or intentionally exert[ed] unauthorized control over property of
another person, with intent to deprive the other person of any part of its value or use[.]”
Ind. Code § 35-43-4-2(a). The Indiana Supreme Court has recently held that
the mere unexplained possession of recently stolen property standing alone
does not automatically support a conviction for theft. 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 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).
Brewster does not deny that he was in possession of recently stolen goods, but
contends that the State produced insufficient evidence to establish his intent. In short,
Brewster contends that he was Clauss’s “patsy.”2 Appellant’s Br. p. 5. We conclude,
however, that there is sufficient evidence to support an inference that Brewster had the
2
“Patsy” may be defined as “a person on whom blame is foisted” or “FALL GUY[.]”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1657 (Phillip Babcock Gove et al. eds., G.&C.
Merriam Company 1964).
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requisite intent for theft. Deckard’s property was protected by two fences and
conspicuous signage, and one of the fences had to be damaged to gain access. The jury
was free to infer from such protective measures that Brewster was on notice that he and
Clauss were not allowed on the premises. The evidence of Brewster’s possession of
recently stolen goods, along with the circumstances surrounding that possession, is
sufficient to sustain his theft conviction.
The judgment of the trial court is affirmed.
VAIDIK, J., and CRONE, J., concur.
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