MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Nov 10 2015, 9:33 am
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
Thomas P. Keller Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Mason, November 10, 2015
Appellant-Defendant, Court of Appeals Case No.
71A05-1502-CR-71
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff Marnocha, Judge
Trial Court Cause No.
71D02-1406-FC-116
Mathias, Judge.
[1] Following a bench trial, Matthew Mason (“Mason”) was convicted in St.
Joseph Superior Court of Class C felony carrying a handgun without a license
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within 1,000 feet of school property, Class A misdemeanor possession of
marijuana, and Class B misdemeanor false informing. He was ordered to serve
an aggregate three-year sentence in the Department of Correction. Mason now
appeals and argues that the State failed to present sufficient evidence to support
his conviction of Class C felony carrying a handgun without a license within
1,000 feet of school property.
[2] We affirm.
Facts and Procedural History
[3] On the afternoon of June 3, 2014, South Bend Police Officers Nicholas Pogotis
(“Officer Pogotis”) and Anthony Dertz (“Officer Dertz) were dispatched
separately to respond to a complaint regarding men with handguns. When
Officer Pogotis arrived, he observed three to four males standing near a van,
one being Mason. Officer Pogotis approached the men from the west side of the
parking lot on foot, while Officer Dertz pulled up from the east side of the
parking lot in his squad car. As Officer Pogotis walked toward the group, he
noticed one of the men, later identified as Mason, crouch down and throw an
item underneath the van. Officer Pogotis identified the object as a gun with
white grips from about twelve feet away. He later learned that what appeared to
be a grip was actually white medical tape.
[4] Mason was handcuffed and placed into Officer Dertz’s police car. Mason then
identified himself to the officers as Matthew Spears from Arkansas. After
securing Mason, the officers retrieved and photographed a bag of marijuana,
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CDs, a pack of cigarettes, and the silver handgun that Mason threw under the
van. Tr. p. 41. When Officer Dertz returned to his vehicle to read Mason his
Miranda rights, Mason admitted to lying about his name and stated that the
marijuana belonged to him. Tr. p. 44.
[5] The State charged Mason with Class C felony carrying a handgun without a
license within 1,000 feet of school property, Class A misdemeanor possession of
marijuana, and Class B misdemeanor false informing. At trial, Mason
stipulated that the location where the officers recovered the handgun was within
1,000 feet of school property. However, he claimed that the handgun did not
belong to him. The trial court found Mason guilty of three charges and ordered
him to serve an aggregate three-year sentence in the Department of Correction.
Mason now appeals.
Discussion and Decision
[6] Mason argues that the State failed to present sufficient evidence to support his
conviction of Class C felony carrying a handgun without a license within 1,000
feet of school property. “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 [trier of fact’s] exclusive province to
weigh conflicting evidence.” 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
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drawn from the evidence could have allowed a reasonable trier of fact to find
the defendant guilty beyond a reasonable doubt. Id.
[7] To convict Mason of carrying a handgun without a license within 1,000 feet of
school property, the State was required to prove that: “Mason did knowingly
unlawfully carry a handgun on his person, while he was not in his dwelling, on
his property, or fixed place of business, without a license and was within one
thousand feet of a school.” Tr. p. 28. See Ind. Code § 35-47-2-1(a) (2014); Ind.
Code § 35-47-2-23(c) (2014).
[8] Carrying a handgun can be shown by either actual or constructive possession.
Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Actual possession occurs
when a person has direct physical control over an item. Constructive possession
occurs when somebody has the intent and capability to maintain dominion and
control over the item. Id.
[9] At trial, Officer Pogotis testified that he observed Mason crouch down and
throw a silver gun underneath the van. The gun was recovered shorty after
Mason’s arrest, along with a bag of marijuana and other items. Officer Pogotis’s
testimony supports a reasonable inference that Mason actually possessed the
gun before abandoning it under the van.
[10] It was within the discretion of the trial court to weigh the officers’ credibility
against Mason’s credibility. It is up to the fact-finder to determine the credibility
of each witness, and here the trial court believed the testimony of Officer
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Pogotis and Officer Dertz. We must respect this determination. See McHenry,
820 N.E.2d at 126.
[11] For all of these reasons, we conclude that the State presented sufficient evidence
to support Mason’s conviction. We therefore affirm his conviction for carrying
a handgun without a license within 1,000 feet of school property.
[12] Affirmed.
Baker, J., and Bailey, J., concur.
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