Carl E. McCormack v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 16, 2019
• Docket: 19A-CR-159
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 16 2019, 6:11 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kurt A. Young Curtis T. Hill, Jr. Nashville, Indiana Attorney General of Indiana Josiah J. Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carl E. McCormack, October 16, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-159 v. Appeal from the Brown Circuit Court State of Indiana, The Honorable Judith A. Stewart, Appellee-Plaintiff. Judge Trial Court Cause No. 07C01-1705-F6-290

Mathias, Judge.

[1] Following a jury trial in Brown Circuit Court, Carl E. McCormack

(“McCormack”) was convicted of Level 6 felony receiving stolen auto parts and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 1 of 10 determined to be an habitual offender. McCormack appeals and presents one

argument: whether the evidence is sufficient to support his conviction.

[2] We affirm.

Facts and Procedural History [3] The facts most favorable to the jury’s verdict reveal that in May 2017, Chad

Austin (“Austin”) owned a gold 2005 Ford F350 pickup truck. Austin wanted

to sell the truck, so he parked it at a location where it could be seen from a

nearby road. Brown County Sheriff’s Deputy Detective Brian Shrader

(“Detective Shrader”) often drove by the truck on his way to work. Knowing

that there had been a recent rash of thefts involving larger Ford pickup trucks,

which are more easily stolen due to the design of the door lock, Detective

Shrader was concerned that Austin’s truck would also be stolen.

[4] On May 24, 2017, Detective Shrader drove by where Austin’s truck had been

parked and noticed that it was no longer there. The following morning, one of

Austin’s employees, who had also noticed that the truck gone, asked Austin if

he had sold the truck. Austin stated that he had not, and he telephoned the

police to report the theft. Detective Shrader learned of the report that the truck

had been stolen and began to investigate.

[5] Less than an hour after the vehicle had been reported as stolen, Detective

Shrader and Deputy Austin Schonfield (“Deputy Schonfield”) observed a truck

matching Austin’s at property on Hoover Road in Brown County. Detective

Shrader watched as McCormack and three other individuals walked back and Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 2 of 10 forth from the truck. The deputies called for backup and blocked the road

leaving the property with their vehicles. As the officers approached the truck,

McCormack and his companions “scurried” into the nearby woods. Tr. Vol. 2,

p. 117. Detective Shrader soon located McCormack hiding under a bush. Also

located were Joseph Patrick (“Patrick”), Scott Snyder (“Snyder”), and Tabitha

McPeek (“McPeek”). The police took McCormack and the others into custody.

[6] The police obtained a warrant to search the property, where they located five

trucks, one of which—the one McCormack had been seen near—was Austin’s

stolen Ford F350. The lower portion of the truck had been spray-painted black,

and the plastic covering the keyhole on the door had been punched out. The

keyhole had been altered, and the mirrors, tires, and tailgate had been removed

and replaced with parts from a white 2011 Ford F350 pickup truck found on the

property. This white truck had been reported stolen as well, and its hood,

bumpers, headlights, and doors had been removed, as had some of its interior

components and engine parts. The wheels on the white F350 had been replaced

with the wheels from Austin’s gold F350.

[7] Also found on the property was a Dodge Ram pickup truck that had been

reported as stolen from Kentucky. When it was stolen, the Dodge was painted

green, but it had been spray-painted black when the police recovered it at the

Hoover Road property. Two other vehicles, which had not been reported as

stolen, were also found on the property: a red Ford F150 pickup truck, owned

by Patrick, and a white 1994 Dodge Dakota. McCormack was known to drive a

white Dodge Dakota, and Patrick stated that he had seen McCormack inside

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 3 of 10 the white Dakota when he arrived. Inside the Dakota, the police found the

white F350’s doors, seat, and plastic interior panels. A basket containing cans

of spray paint was found sitting on the top of the Dakota.

[8] In custody, McCormack told the police that he had been working on the gold

F350. Patrick stated that he helped McCormack and the others “dismantle” the

white F350 and Austin’s gold F350 or several hours before the police arrived.

Tr. Vol. 2, pp. 141, 152. McCormack’s roommate, Laura Gillespie, testified

that McCormack drove a white Dodge Dakota. She also stated that both she

and McCormack knew Snyder to be a car thief before the current incident.

McCormack also told the police he knew that Snyder had been known to steal

vehicles. Ex. Vol., State’s Ex. 63 at 2:34–2:38.

[9] On May 17, 2017, the State charged McCormack with one count of Level 6

felony receiving stolen auto parts. The State later amended the information to

allege that McCormack was an habitual offender. A three-day jury trial

commenced on December 14, 2018, at the conclusion of which the jury found

McCormack guilty as charged. The jury also found McCormack to be an

habitual offender. The trial court sentenced McCormack on December 19,

2018, to two and one-half years, enhanced by two years based on the habitual

offender finding. McCormack now appeals.

Discussion and Decision [10] McCormack argues that the State failed to present evidence sufficient to support

his conviction for Level 6 felony receiving stolen auto parts. When reviewing a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 4 of 10 claim that the evidence is insufficient to support a conviction, we neither

reweigh the evidence nor judge the credibility of the witnesses. Harrison v. State,

32 N.E.3d 240, 247 (Ind. Ct. App. 2015) (citing McHenry v. State, 820 N.E.2d

124, 126 (Ind. 2005)), trans. denied. Instead, we respect the exclusive province of

the jury to weigh any conflicting evidence. Id. We therefore consider only the

probative evidence supporting the verdict and any reasonable inferences which

may be drawn from this evidence. Id. We will affirm if the probative evidence

and reasonable inferences drawn therefrom could have allowed a reasonable

jury to find the defendant guilty beyond a reasonable doubt. Id.

[11] To convict McCormack of Level 6 felony receiving stolen auto parts, the State

was required to prove that he: “knowingly or intentionally receive[d],

retaine[d], or dispose[d] of a motor vehicle or any part of a motor vehicle of

another person that has been the subject of theft . . . .” Ind. Code § 35-43-4-

2.5(c) (2017);1 Appellant’s App. p. 24.

[12] McCormack attacks the sufficiency of the evidence supporting his conviction on

several grounds. First, he claims that there was no evidence that he was ever

seen in possession of stolen parts. Emphasizing the evidence that does not favor

his conviction, McCormack claims that Detective Shrader did not see him

holding anything or doing anything to the trucks but merely saw him repeatedly

walk away from the truck and return. This argument overlooks the evidence

1 This statute was repealed effective July 1, 2018, and the theft/receiving stolen property statute was amended to include provisions for motor vehicles and motor vehicle parts. See P.L.176-2018, §§ 6, 7.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 5 of 10 that demonstrated that McCormack was seen “dismantling” a “four door, long

bed white truck.” Tr. Vol. 2, pp. 134, 141, 152. Although McCormack argues

that there is no evidence to establish that this white truck was the stolen white

F350, the State’s submitted evidence that the white F350 was the only four-door

white truck on the property. See Ex. Vol., State’s Exs. 41–49 (photographs of

two-door white Dodge Dakota); State’s Exs. 19–37 (photographs of four-door

white Ford F350). From this, the jury could reasonably conclude that

McCormack was in possession of parts from the stolen white F350 when he

dismantled this vehicle.

[13] Moreover, the white F350’s doors, seat, and plastic interior panels were all

located in the bed of the Dodge Dakota that McCormack had been driving, and

a basket containing cans of spray paint was found on the hood of that truck.

McCormack claims that there was no evidence regarding who owned the white

Dodge Dakota. Regardless of who held legal title to the white Dakota, the State

presented evidence showing that McCormack was driving the vehicle that day.

McCormack was seen driving a white Dakota the day before he was arrested,

and Patrick saw him sitting in the white Dakota when he arrived.

[14] McCormack also contends that there was no proof that the white Ford F350

from which he was seen taking the parts was stolen. To the contrary,

Lieutenant Michael Moore (“Lt. Moore”) of the Brown County Sheriff’s

Department testified that the white Ford F350 and had been stolen from the

Columbus area. Tr. Vol. 2, p. 118. And Deputy Joshua Stargell (“Deputy

Stargell”) testified that he ran the VIN number on the white F350 through the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 6 of 10 Indiana Data and Communication System database and confirmed that the

white F350 was stolen. Id. at 63–64. McCormack argues on appeal that this

evidence is not trustworthy because it was hearsay. However, McCormack

made no objection to this testimony at trial. It is well settled that “‘[o]therwise

inadmissible hearsay evidence may be considered for substantive purposes and

is sufficient to establish a material fact at issue when the hearsay evidence is

admitted without a timely objection at trial.’” Humphrey v. State, 73 N.E.3d 677,

684 (Ind. 2017) (quoting Banks v. State, 567 N.E.2d 1126, 1129 (Ind. 1991)).

Thus, whether or not Lt. Moore’s or Deputy Stargell’s testimony constituted

hearsay, it was admitted without objection and could be considered for

substantive purposes, i.e. to establish that the white F350 was stolen.

[15] McCormack also argues that his flight from the scene when the police arrived

cannot be considered as evidence of his guilt. In Willis v. State, 27 N.E.3d 1065,

1067 (Ind. 2015), our supreme court wrote:

[T]his Court has held “[t]he fact that a defendant flees or does not flee does not indicate either guilt or innocence of itself. . . .” Dill v. State, 741 N.E.2d 1230, 1232–33 (Ind. 2001) (finding trial court error in giving the jury a flight instruction). We elaborated, “it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses.” Id. at 1233 (quoting Alberty v. United States, 162 U.S. 499, 511 (1896)) (alteration omitted). Thus, something more than running from the scene is necessary in order to infer Willis’ guilt.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 7 of 10 Id. at 1067 (emphasis added). In Willis, the only evidence connecting the

defendant to the crime of criminal trespass was his flight from the police near

the scene of the trespass. See id. at 1067–68. Thus, his flight from the scene was

insufficient to support his conviction. Id. at 1068.

[16] Less than a month later, our supreme court reaffirmed the general rule that

“‘[e]vidence of flight may be considered as circumstantial evidence of

consciousness of guilt.” Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015)

(quoting Brown v. State, 563 N.E.2d 103, 107 (Ind.1990)). “Additionally,

‘[e]vidence of an attempt to avoid arrest [also] tends to show guilt.’” Id.

(quoting Wilson v. State, 455 N.E.2d 1120, 1123 (Ind. 1983)).

[17] Thus, while something more than fleeing from the scene by itself is necessary to

infer guilt, such flight may be considered as circumstantial evidence of

consciousness of guilt, which, combined with other circumstantial evidence,

may be sufficient to support a conviction. And in the present case, there was

much more than mere flight from the scene.

[18] McCormack was aware that Snyder had a reputation as a car thief. McCormack

was seen with Snyder dismantling the stolen white F350 and working with the

stolen gold F350. Parts from the white F350 were found in the truck

McCormack had been driving. Parts from the white F350 had been put onto the

gold F350, and the gold F350 had been spray-painted in an obvious attempt to

alter its appearance. Spray paint was found on top of the truck McCormack was

driving. The locks on trucks had been tampered with, and the gold F350’s

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 8 of 10 ignition was broken such that it could be started with a screwdriver. This, plus

McCormack’s attempt to hide when the police arrived, is evidence of

McCormick’s consciousness of guilt.

[19] McCormack also argues that there was insufficient evidence regarding his

knowledge that the vehicles, and thus their parts, were stolen. With regard to

the knowledge required for a conviction for receiving stolen property, our

supreme court has explained that “‘[k]nowledge that the property is stolen may

be established by circumstantial evidence; however, knowledge of the stolen

character of the property may not be inferred solely from the unexplained

possession of recently stolen property.’” Fortson v. State, 919 N.E.2d 1136, 1143

(Ind. 2010) (quoting Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct. App. 2005)).

[20] Here, there was much more than the mere unexplained possession of recently

stolen property to establish McCormack’s knowledge that the vehicles were

stolen, including: McCormack’s knowledge that Snyder was known as a car

thief; the manner in which the vehicles were being dismantled; the fact that the

locks on the trucks had been tampered with; the manner in which the vehicles

were being repainted to alter their appearance; and the flight of those involved

when the police arrived. Even McCormack stated that, when the police arrived

and he attempted to hide, he knew he should have listened to his “better

instincts” and not have been there given Snyder’s reputation. Ex. Vol., State’s

Ex. 63 at 7:00–7:13.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 9 of 10 [21] From this evidence, the jury could reasonably conclude that McCormack

knowingly received, retained, or disposed of any part of a motor vehicle that

had been the subject of theft. See J.B. v. State, 748 N.E.2d 914, 918 (Ind. Ct.

App. 2001) (holding that there was sufficient evidence to support juvenile’s

delinquency adjudication for act that would have been auto theft if committed

by an adult where defendant was found riding stolen motor scooter shortly after

it was stolen, the scooter’s license plate was missing, the lock and ignition had

been broken, and when confronted, the juvenile attempted to flee).

Conclusion

[22] The State presented sufficient evidence to establish that McCormack knowingly

received, retained, or disposed of any part of motor vehicle that had been the

subject of theft and that McCormack knew that the vehicles had been stolen.

Accordingly, we affirm McCormack’s conviction for Level 6 felony receiving

stolen auto parts.

[23] Affirmed.

Robb, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-159 | October 16, 2019 Page 10 of 10