author: PYLE, Judge.

text:
    Mark S. WEINBERGER, M.D., et al., Appellant-Defendants, v. Gloria GILL, Appellee-Plaintiff.
    No. 45A05-1203-CT-107.
    Court of Appeals of Indiana.
    Jan. 31, 2013.

      James L. Hough, Ami Anderson Noren, Merrillville, IN, Attorneys for Appellant.
    David J. Cutshaw, Gabriel A. Hawkins, Kelley J. Johnson, Indianapolis, IN, Barry D. Rooth, Holly S.C. Wojcik, Merrillville, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Mark S. Weinberger, (“Weinberger”) M.D.; Mark Weinberger, M.D., P.C.; Merrillville Center for Advanced Surgery, LLC; and Nose and Sinus Center, LLC, (collectively, “the Weinberger Entities”), appeal the jury’s award of damages in the amount of $150,000 to Gloria Gill (“Gill”) following Gill’s medical malpractice action.

We affirm.

ISSUES

1. Whether the trial court erred by denying the Weinberger Entities’ motion for judgment on the evidence.
2. Whether the trial court erred in admitting evidence.

FACTS

In December 2003, forty-seven-year-old Gill sought treatment from Weinberger for migraines and “congestion.” (Tr. 1406). Weinberger ordered a CT scan and informed Gill that polyps in her sinuses were causing her discomfort. Weinberger told Gill that sinus surgery would solve her problems. Three weeks later, on December 27, 2003, Weinberger performed surgery on Gill. The operative report indicated that Weinberger performed nearly every type of procedure within the field of sinus and nose surgery in the single surgery, including the following seven procedures: 1) bilateral total endoscopic ethmoidectomy with stereo-tactic guidance; 2) bilateral endoscopic maxillary antrostomy with stereotactic guidance; 3) bilateral endoscopic sphenoi-dotomy with stereotactic guidance; 4) ra-diofrequency palate reduction; 5) bilateral radiofrequency turbinate reduction; 6) image-guided endoscopic sinus surgery with Stryker navigation system; and 7) septoplasty. Immediately after surgery, Weinberger told Gill’s husband that the surgery was a success but that a second surgery might be necessary.

Following surgery, Gill was in considerable pain and her sinuses bled for several days. During her first post-operative appointment with Weinberger in January 2004, Gill explained that she was feeling worse than she did before the surgery and that she had shooting pains through her face. Weinberger inserted a scope up both sides of Gill’s nose without using numbing spray, which caused Gill a great deal of pain. His medical notes state that it was a “routine postop visit,” and that Gill was “healing well.” (Tr. 1426).

During subsequent visits, Gill continued to complain that she was not feeling any better and that she had sharp pains shooting through her face and cheekbones. Weinberger, however, rarely responded to Gill’s concerns. According to Gill, “Wein-berger didn’t say ... five words to [her] after [her] surgery.” (Tr. 1434). Five months after surgery, with Weinberger failing to address her concerns or even speak to her, Gill decided to stop attending her follow-up appointments. Her last appointment with Weinberger was on April 7, 2004.

During the nine months following the surgery, Gill was unable to ride her motorcycle because the wind “getting up into [her] nose and [her] head” was too painful. (Tr. 1437). She began snoring so loudly that she and her husband could no longer sleep in the same bed or room together. Further, Gill’s congestion, pressure, and headaches were all much worse than before she had surgery.

In September 2004, Gill saw Wein-berger’s face “plastered up on the TV,” and learned that while he was on vacation in the Mediterranean with his family, Weinberger disappeared in the middle of the night. (Tr. 1439). Weinberger never notified his patients that he was leaving his practice or referred them to another doctor. Shortly thereafter, Gill, who was still suffering from congestion, pressure, and drainage, scheduled an appointment with Dr. Dennis Han. The results of a CT scan revealed that the only procedure Wein-berger had performed during Gill’s surgery was drilling two unnecessary holes in her sinuses. The holes resulted in chronic sinusitis caused by recirculation issues. Specifically, Dr. Han explained the recirculation phenomenon as follows:

If you place a surgical opening further back along the natural drainage pathway of the maxillary sinus and the nose, the mucus just falls right back into the si-nus_ So the mucus is normally secreted in the maxillary sinuses, it just keeps on recirculating into the nasal cavity and then falls back in the sinus and you get a mucus buildup and inflammation. And the main symptom for that would be inflammation that might cause initial congestion, but also patients have excessive drainage, post-nasal drip from this condition.

(Tr. 483-84). Dr. Han recommended corrective surgery, which he performed in December 2004.

Shortly thereafter, Gill filed a proposed complaint for medical malpractice against the Weinberger Entities with the Indiana Department of Insurance. Also in December 2009, Weinberger was apprehended in a tent in the Italian Alps. On December 17, 2009, the medical review panel issued a unanimous opinion, finding that the Wein-berger Entities had failed to comply with the appropriate standard of care. On March 12, 2010, Gill filed her Complaint for medical malpractice against the Wein-berger Entities. The Complaint provides in relevant part as follows:

1. At all times relevant hereto, Gloria Gill, was a patient of Weinberger.
2. At all times relevant hereto, Wein-berger was a physician duly licensed to practice medicine under the laws of the State of Indiana.
3. On October 3, 2003, Weinberger undertook the care and treatment of the plaintiff.
4. In caring for and treating the plaintiff, Weinberger failed to comply with the applicable standards of care.
5.As a direct and proximate result of said acts and omissions on the part of Weinberger, the plaintiff suffered severe and permanent physical injuries and disabilities which affect her ability to enjoy life, has suffered and will continue to suffer in the future, great pain, emotional distress and mental trauma, has incurred and will continue to incur in the future, reasonable medical and related expenses, and has lost and will continue to lose wages, profits and income.

(Appellant’s App. 24).

At the outset of trial, which began on October 81, 2011, the trial court instructed the jurors regarding the following seven separate and distinct acts of medical malpractice:

In this lawsuit, Gloria Gill, claims that Dr. Mark Weinberger committed the following acts of malpractice and that Dr. Weinberger’s corporations are also responsible for these acts of malpractice:
1. Dr. Weinberger failed to recommend non-surgieal treatment for Mrs. Gill’s symptoms, such as medicines or allergy testing, before recommending and performing sinus surgery on Mrs. Gill.
2. Dr. Weinberger misread Mrs. Gill’s X-rays as showing extensive sinus disease and problems, which Dr. Weinberger used as a basis for negligently recommending surgery even though Mrs. Gill had no disease in her sinuses.
3. Because Dr. Weinberger failed to tell Mrs. Gill what her actual medical problems were and what he was actually going to do during surgery, Dr. Weinberger failed to get Mrs. Gill’s informed consent to do surgery.
4. Because Mrs. Gill did not actually have sinus disease, there was no need to perform surgery on her and Dr. Weinberger performed unnecessary surgery under general anesthesia.
5. Dr. Weinberger failed to perform the surgeries he told Mrs. Gill he was going to do and billed her for these surgeries anyway.
6. Instead of doing a proper surgery to Mrs. Gill’s maxillary sinuses, Dr. Weinberger unnecessarily and improperly drilled two holes in Mrs. Gill’s sinuses where they are not supposed to be.
7. Dr. Weinberger abandoned Mrs. Gill when she needed treatment for complications caused by his surgery and left the country.
8. The Defendants deny that they committed any acts of medical malpractice.

(Tr. 350-51).

During the trial, Gill’s expert witness, Dr. Victor Mokarry, testified that based upon his review of the CT scans of Gill’s sinuses that were taken and read by Wein-berger before Gill’s sinus surgery, Gill did not have sinus disease. Specifically, the scans did not show what Weinberger said that they did, and Gill’s sinus surgery was unnecessary. Dr. Mokarry further testified that Weinberger’s recommendation for surgery based on these scans, his failure to make any effort to recommend treatment other than surgery on the first day he met with Gill, and his recommendation of unnecessary surgery were all violations of the applicable standards of care. Also at trial, Gill testified, without objection, that she felt angry and humiliated when she learned that Weinberger had disappeared in the middle of the night. She felt this way because Weinberger was her doctor, and she had trusted him.

In addition, Janet Gadacz, Weinberger’s former patient liaison, testified by video deposition that in the summer of 2004, Weinberger received thirty to forty packages that included tents, camping equipment, and tarps. She further testified that one day a limousine pulled up and six to eight businessmen that carried briefcases and did not speak English well were taken to a conference room to meet with Weinberger. The limousine driver apparently told Weinberger’s staff that the men possibly had diamonds in their briefcases. Also during that time, several banks called Weinberger to confirm unusual activity on his credit cards as well as large withdrawals from ATM’s. Lastly, Gadacz testified that during this time, medical malpractice lawsuits began arriving at the office. Weinberger seemed very anxious, and, although he was generally a very meticulous clean-cut man, he began walking around the office partially clothed with stubble on his face. Concerned about what was going on in the office, Gadacz gave a two-week notice and resigned her position.

Weinberger’s former wife, Michelle Kramer, testified by video deposition that after Weinberger disappeared in the Mediterranean, she realized that bookkeeping practices had changed in his office and that Weinberger had “planned to leave.” (Tr. 1283). Kramer concluded that Wein-berger had disappeared because the “lawsuits” were threatening him. (Tr. 1290).

In addition, Robert Handler, the receiver appointed to manage Weinberger’s medical practice after he left the country, testified by video deposition that Wein-berger abandoned his practice a few weeks before Handler was appointed to be the receiver. Handler also explained that Weinberger had sent a large package of camping supplies to Paris before he left for the Mediterranean. Handler was able to recover the package from FedEx in Paris before Weinberger picked it up. The package contained hiking gloves, hiking socks, a portable hammock, electric foreign language translators, tent poles, sleeping bags, travel guides, and money hidden in one of the guides. Handler also testified that there was a lot of camping equipment found in Weinberger’s office.

At the close of Gill’s case-in-chief, the Weinberger Entities moved for judgment on the evidence with respect to Wein-berger’s abandonment of Gill, which the trial court denied. The Weinberger Entities renewed their motion after their presentation of evidence. At the close of the evidence, the trial court re-instructed the jury about the seven alleged acts of medical malpractice. A jury awarded Gill damages in the amount of $150,000, and the Weinberger Entities appeal.

DECISION

1. Judgment on the Evidence

The standard of review for a challenge to a ruling on a motion for judgment on the evidence is the same as the standard governing the trial court in making its decision. Newland Resources, LLC v. Branham Corp., 918 N.E.2d 763, 770 (Ind.Ct.App.2009). Judgment on the evidence is proper only where all or some of the issues are not supported by sufficient evidence. Id. The court looks only to the evidence and the reasonable inferences drawn most favorable to the nonmoving party, and the motion should be granted only where there is no substantial evidence supporting an essential issue in the ease. Id.

The Weinberger Entities argue that the trial court erred in denying their motion for judgment on the evidence regarding Gill’s claim of patient abandonment. We addressed this same issue in Weinberger v. Boyer, 956 N.E.2d 1095 (Ind.Ct.App.2011), trans. denied. In that case, Boyer, like Gill, sought treatment from Weinberger for recurring problems with nasal congestion. Thirty minutes after Boyer walked into Weinberger’s office without an appointment and agreed to a CT scan, Wein-berger told Boyer that Boyer had sinus polyps and needed sinus surgery as soon as possible. Boyer had surgery in January 2004. Like Gill, he subsequently had more congestion problems than he did before surgery. After several months of placing rods in Boyer’s nose to allegedly remove scarring, Weinberger suggested a second surgery. However, before the surgery was scheduled, Weinberger disappeared. Boyer, like Gill, filed a medical malpractice action against the Weinberger Entities. A jury subsequently awarded Boyer $800,000.

The Weinberger Entities appealed and argued that the trial court erred in denying its motion for judgment on the evidence regarding Boyer’s claim of patient abandonment. This Court concluded that where only a claim for medical malpractice was made and no separate tort claim for patient abandonment was raised, the Weinberger Entities’ motion for judgment on the evidence was not directed at a critical or essential element of the medical malpractice claim but rather at an underlying issue with respect to the standard of care. We therefore affirmed the trial court’s denial of the Weinberger Entities’ motion.

Here, as in Boyer, Gill made only a claim for medical malpractice and no separate tort claim for patient abandonment was raised. Therefore, as in Boyer, the Weinberger Entities’ motion for judgment on the evidence was not directed at a critical or essential element of the medical malpractice claim but rather at an underlying issue with respect to the standard of care, and the trial court did not err in denying the Weinberger Entities’ motion.

2. Admission of Evidence

The Weinberger Entities next argue that the trial court erred in admitting evidence. Specifically, they contend that the trial court erred in admitting evidence of (1) Weinberger’s preparation for and subsequent flight; and (2) Gill’s humiliation and anger when she learned about Wein-berger’s disappearance. We address each of their contentions in turn.

The standard of review for admissibility of evidence is abuse of discretion. Blocher v. DeBartolo Properties Management Inc., 760 N.E.2d 229, 233 (Ind.Ct.App.2001), trans. denied. The trial court abuses its discretion only when its action is clearly erroneous and against the logic and effect of the facts and circumstances before the court. Id. Even if the trial court errs in its ruling on the admissibility of evidence, this Court will reverse only if the error is inconsistent with substantial justice. Id.

The Weinberger Entities first claim that the trial court erred in admitting evidence of Weinberger’s preparation for and subsequent flight because there was no evidence that Weinberger’s departure was related to any care or treatment rendered to Gill. We also addressed this same issue in Boyer. There, we noted that Boyer introduced evidence of Weinberger’s behavior prior to his flight mainly through the testimony of Gadacz, his patient liaison. Specifically, Gadacz testified that a month before Weinberger disappeared, up to thirty to forty packages came into the office containing camping equipment. She also told the jury that six to eight visitors who did not speak English well met with Weinberger. In addition, she testified that banks were calling the office to inquire about unusual activity in Wein-berger’s accounts. We noted that through Gadacz’s testimony, Boyer established that Weinberger was collecting the necessary cash and materials to flee the country, thereby abandoning Boyer.

We pointed out that we have previously held that a sudden trip can be characterized as flight and, although standing alone does not raise a presumption of guilt, it is competent to show consciousness of guilt. Boyer, 956 N.E.2d at 1114 (citing Gash v. Kohm, 476 N.E.2d 910, 915 (Ind.Ct.App.1985)), trans. denied. We also cited two other cases where we analogized a defendant’s disposition of property to flight and allowed a similar inference of consciousness of guilt. See Harrod v. Bisson, 48 Ind.App. 549, 93 N.E. 1093 (1911) (evidence of physician transferring assets after a malpractice claim was filed against him); Myers v. Moore, 3 Ind.App. 226, 28 N.E. 724 (1891). We therefore concluded that the testimony concerning Wein-berger’s odd behavior preceding his flight was relevant evidence because it established an inference of consciousness of guilt. Boyer, 956 N.E.2d at 1107. We found no error in the admission of this evidence. Id. at 1114.

Here, as in Boyer, Gadacz testified that Weinberger received thirty to forty packages with tents and camping equipment. She further testified about the arrival of the men who did not speak English well and the telephone calls from several banks confirming Weinberger’s unusual activity and large ATM withdrawals. She also testified that medical malpractice lawsuits began arriving at the office, and Wein-berger appeared very anxious. In addition, Weinberger’s wife testified that after Weinberger disappeared, she realized that he had planned to disappear. Lastly, receiver Handler testified that there was a lot of camping equipment found in Wein-berger’s office and that he was able to recover a large FedEx package with more camping equipment that Weinberger sent to Paris. Here, as in Boyer, we conclude that the testimony concerning Wein-berger’s odd behavior and subsequent flight was relevant admissible evidence because it established an inference of consciousness of guilt.

Nevertheless, the Weinberger Entities contend that Boyer is factually distinguishable from this case because Boyer had additional treatment scheduled with Wein-berger when Weinberger left the country. The Weinberger Entities allege that Gill’s relationship with Weinberger ended on her last visit on April 7, 2004, and that any actions on his part after that date are inadmissible. The Weinberger Entities further allege that in order for flight to be evidence of consciousness of guilt, it must be shown that the flight was caused by the incident at issue. According to the Wein-berger Entities, there is no evidence that his flight was “in any way related to the medical treatment [Weinberger] rendered to [Gill].” Appellant’s Br. at 13.

First, to the extent the Weinberger Entities argue that Weinberger no longer owed a duty to Gill because her last office visit was on April 7, 2004, they are mistaken. The Indiana Supreme Court has made clear that a physician’s duty to a patient does not terminate upon the cessation of services if the physician is aware of the need for future care. See Harris v. Raymond, 715 N.E.2d 388 (Ind.1999) (holding that a physician or oral surgeon who implants a medical device in a patient has a duty to warn both current and former patients of safety issues raised by the manufacturer and/or the FDA because in such a case, there is no bright line test for distinguishing between a current patient who perhaps has not seen the provider for quite some time and a former patient who has intentionally severed all ties with the provider). Here, Weinberger was aware that he put two unnecessary holes in Gill’s sinuses and that she needed corrective surgery. Because Weinberger was aware of Gill’s need for future care, his duty to her did not terminate on her last visit to his office in April 2004.

Further, our review of the evidence reveals that Gadacz testified that Wein-berger seemed very anxious when medical malpractice lawsuits began arriving at the office. Specifically, the previously meticulous and clean-cut physician began walking around the office partially clothed with stubble on his face. Weinberger’s wife concluded that Weinberger disappeared because the lawsuits were threatening him. We agree with Gill that it is unlikely that any single lawsuit standing alone was the motivation for Weinberger’s flight. Rather, his motivation was his knowledge that many medical malpractice claims had already been and would continue to be filed. Gill’s claim was one of them. Under these circumstances, Gill, like Boyer, was permitted to use Weinberger’s flight to establish consciousness of guilt. The trial court did not err in admitting the evidence of Weinberger’s flight into evidence.

The Weinberger Entities also allege that the trial court erred in allowing Gill to testify that she felt humiliated and angry when she learned that Weinberger had disappeared in the middle of the night. Specifically, the Weinberger Entities argue that the “trial court committed additional error by allowing Ms. Gill to argue and recover damages for her alleged emotional distress resulting from Dr. Weinberger’s departure from the country because Indiana law precludes such a recovery in the absence of direct physical impact.” Appellant’s Br. p. 17.

The Weinberger Entities have waived appellate review of this issue because they failed to object to Gill’s testimony at trial. See Myers v. State, 887 N.E.2d 170, 184 (Ind.Ct.App.2008), trans. denied, (stating that the failure to make a contemporaneous objection to the admission of evidence at trial results in waiver of the issue on appeal).

Affirmed.

ROBB, C.J., and MAY, J., concur.

      . In a single sentence at the end of their argument, the Weinberger Entities claim that the flight evidence "should have been excluded under Rule 403 of the Indiana Rules of Evidence as well.” Appellant’s Br. at 17. Because the Weinberger Entities deem these allegations only worthy of a single sentence and have not favored us with a cogent argument supported by legal authority and references to the record, their claims are waived for our review. See Boyer, 956 N.E.2d at 1108, n. 2 (citing Ind. Appellate Rule 46(A)(8)).


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    Darrol FOX, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1206-CR-475.
    Court of Appeals of Indiana.
    Jan. 31, 2013.
    Ordered Published March 1, 2013.

      John Razumich, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Darrol Fox brings this interlocutory appeal from the trial court’s denial of his motion to suppress evidence. Fox raises two issues for our review, which we restate as the following issue: whether he has standing under either the Fourth Amendment to the United States Constitution or Article I, Section 11 of the Indiana Constitution to challenge the State’s warrantless entry into a hotel room in which Fox was an unregistered guest. We affirm.

FACTS AND PROCEDURAL HISTORY

At about 11:00 p.m. on November 5, 2011, Detective John Howard and other officers of the Indianapolis Metropolitan Police Department went to the America’s Best Inn on North High School Road to check the hotel’s registry against a list of wanted suspects. The clerk at the hotel’s front desk provided Detective Howard with a guest list, and he identified Cody Lange as a match with his suspect list. According to the guest list, Lange was registered to room 220.

Detective Howard received a key for room 220 from the desk clerk, and he and the other officers entered the room. Upon entering, the officers saw that the room had been occupied but was currently vacant. The officers were then approached by James Giles, a maintenance worker for the hotel. Giles informed the officers that “in [r]oom 212 there was a person sleeping on the bed and that they were [sic] not registered in the room and not supposed to be there.” Transcript at 19. Giles suggested that the person in room 212 “could be the person [the officers] were looking for, and that that person was not supposed to be ... in that room.” Id. at 20. Detective Howard confirmed that the guest registry did not show anyone registered in room 212.

Giles then told the officers that he could let them into room 212 with his key, and the officers followed Giles to room 212. At the threshold to the room, Detective Howard observed that “the door jamb was broken as if it was kicked in or had been kicked in previously.” Id. at 21. Giles then let the officers into the room. Inside, they found a black male asleep on the bed.

The officers woke the man and asked him who he was. The man refused to talk to the officers, and they handcuffed him and “look[ed] around the room to see if anybody else was in the room ... [and] to locate any identification that we could find to help us figure out who this person was.” Id. at 24. The officers observed items near the dresser, and the man stated, “None of this is mine, none of this is mine.” Id. at 23. The officers then found photo identification identifying the man as Fox. In a drawer of the nightstand directly beside the bed, the officers found a set of digital scales that had a white powder on them.

During the course of the officers’ search of the room, Fox told the officers that the manager had let him into the room. Detective Howard went to the front desk to ask the manager if that was true, and the manager confirmed that he had let -Fox into the room and “didn’t tell any of his staff that he had let him in.” Id. at 27. The manager offered no further specifics on his permission for Fox to be in room 212, although Fox later acknowledged that he had not paid for a room, that he had told the manager he only needed the room “for the day,” that he had been in the room since 8:00 a.m., and that the manager was doing him a “favor.” Id. at 7-10.

On November 14, the State charged Fox with dealing in cocaine, as a Class A felony; possession of cocaine, as a Class B felony; possession of a narcotic, as a Class B felony; possession of a controlled substance, as a Class B felony; maintaining a common nuisance, as a Class D felony; and possession of marijuana, as a Class A misdemeanor. On April 3, 2012, Fox filed a motion to suppress the evidence seized from room 212. The court held an eviden-tiary hearing on Fox’s motion and, thereafter, it denied his motion to suppress the evidence. The court then certified its order for interlocutory appeal, which we accepted.

DISCUSSION AND DECISION

Fox appeals the trial court’s denial of his motion to suppress. Where a party appeals the denial of its motion to suppress evidence, it appeals from a negative judgment and must show that the ruling on the motion was contrary to law. State v. Keller, 845 N.E.2d 154, 160 (Ind.Ct.App.2006). We reverse only where the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that reached by the trial court. Id. Moreover, our standard of review for the denial of a motion to suppress evidence is similar to other sufficiency issues. Ammons v. State, 770 N.E.2d 927, 930 (Ind.Ct.App.2002), trans. denied. We determine whether substantial evidence of probative value exists to support the trial court’s denial of the motion. Id. We will not reweigh the evidence, and we consider only the evidence most favorable to the trial court’s ruling along with any uncon-troverted evidence to the contrary. Smith v. State, 780 N.E.2d 1214, 1216 (Ind.Ct.App.2003), trans. denied.

We agree with the State’s contention that the evidence most favorable to the trial court’s ruling demonstrates that Fox lacks standing to challenge the State’s search of the hotel room under either the Fourth Amendment to the United States Constitution or Article I, Section 11 of the Indiana Constitution. It is well established that a defendant must have a legitimate expectation of privacy in the premises that is the subject of the search before he can challenge the search as unconstitutional. Arcuri v. State, 775 N.E.2d 1095, 1100 (Ind.Ct.App.2002), trans. denied. “An expectation of privacy gives rise to Fourth Amendment protection where the defendant had an actual or subjective expectation of privacy and the claimed expectation is one which society recognizes.” Krise v. State, 746 N.E.2d 957, 969 (Ind.2001). Likewise, “to challenge evidence as the result of an unreasonable search or seizure under Article I, Section 11, a defendant must establish ownership, control, possession, or interest in either the premises searched or the property seized.” Peterson v. State, 674 N.E.2d 528, 534 (Ind.1996). When the constitutionality of a search is challenged, defendant has the burden of demonstrating a legitimate expectation of privacy in the premises searched. Arcuri, 775 N.E.2d at 1100.

As the United States Supreme Court has held, “an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.” Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). Further, a person’s hotel room is a “home” for Fourth Amendment purposes. Ceroni v. State, 559 N.E.2d 372, 373 (Ind.Ct.App.1990), trans. denied.

Here, the undisputed evidence shows that Fox was an invitee of the hotel manager at the time of the officers’ war-rantless entry into room 212. Although Fox construes the manager’s invitation as equivalent to being a registered, overnight guest, his own testimony belies his claim on appeal. At the motion to suppress hearing, Fox acknowledged that he had not paid for a room, that he had told the manager he only needed the room “for the day,” that he had occupied the room that morning, and that the manager was doing him a “favor.” Transcript at 7-10.

Fox has not met his burden of demonstrating that the trial court’s interpretation of those facts is contrary to law. See Arcuri, 775 N.E.2d at 1100. To the contrary, Fox’s own testimony, when viewed in the light most favorable to the trial court’s judgment, shows that Fox was merely present in the hotel room with the consent of the hotel manager and that Fox was not an overnight guest in room 212. Accordingly, he does not have standing under the Fourth Amendment to challenge the officers’ warrantless entry into the room. Likewise, he does not have standing under Article I, Section 11. Thus, we affirm the trial court’s denial of Fox’s motion to suppress.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.

      . In his statement of the facts, Fox asserts, without citation to the record, that "the detectives did not notice any signs of a disturbance that would lead them to believe that the room had been broken into at that time.” Appellant’s Br. at 3. This statement is contradicted by Detective Howard’s testimony.

      . In his Reply Brief, Fox states that the trial court did not address the issue of standing in its order. Fox is incorrect. The trial court’s order was premised on the distinction between registered hotel guests, who have reasonable expectations of privacy in their rented rooms, and persons who are merely present with the consent of the registered guest. See Transcript at 55. That distinction is the crux of the standing issue.

      . Fox's argument on appeal is focused only on his purported interests in the hotel room. He does not suggest any interest in the property seized. Accordingly, we do not consider that potential issue.


author: SHEPARD, Senior Judge.

text:
    Connie S. LANDERS, Appellant-Defendant, v. WABASH CENTER, INC., Appellee-Plaintiff.
    No. 79A04-1204-CT-191.
    Court of Appeals of Indiana.
    Feb. 4, 2013.

      Matthew R. Laydon, Gambs Mucker & Bauman, Lafayette, IN, Attorney for Appellant.
    William P. Kealey, Lia M. Hanson, Stuart & Branigin LLP, Lafayette, IN, Attorneys for Appellee.
   OPINION

SHEPARD, Senior Judge.

Stephen McAninch stole over $4 million from his employer, Wabash Center, Inc., during and after his marriage to Connie Landers. After Wabash discovered the theft, it determined that Landers had received a portion of these ill-gotten gains and sued her for return of its money. The trial court entered judgment for Wabash.

Landers says the court’s decision must be reversed because Wabash’s claim is barred by the statute of limitation and because there is insufficient evidence to support the judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

Landers and McAninch married in 1984. Landers had a son by a previous marriage, and Landers and McAninch had a son together. They built a house in 1994. When Landers and McAninch divorced in 1998, Landers received the home in the divorce settlement and still owns it. Pursuant to the terms of the divorce decree, McAninch paid Landers spousal maintenance through 2004 and child support through 2006.

Wabash is a not-for-profit agency in Lafayette that provides education to children with developmental disabilities and independent living, employment, and community involvement assistance to adults. Wabash hired McAninch in 1986, and he managed Wabash’s finances under various titles until his death in 2009. During that time, McAninch developed and directed Wabash’s financial management practices.

Unfortunately, he also created an elaborate procedure to divert Wabash’s funds for his personal use. McAninch created a fictitious business called S & S Enterprises. From 1991 through 2009, he gave Wabash’s controller fake invoices from S & S for services that were never rendered. Wabash had a policy requiring the approval of its board’s finance committee for expenditures over $7500. McAninch, who was responsible for preparing minutes from the committee’s meetings, created false minutes showing approval of expenditures to S & S and submitted the false minutes to the controller along with the invoices. When the controller issued checks to S & S, McAninch deposited them in a bank account held in S & S’s name and then withdrew the money. During his marriage with Landers, some of the funds were deposited in their joint bank account.

The scheme began to unravel in October 2009 when Wabash’s outside auditor requested confirmation that S & S had actually performed certain building renovations for which Wabash had paid. On October 80, 2009, McAninch committed suicide. Wabash subsequently hired a forensic accountant, whose investigation revealed that Landers had received some of Wabash’s stolen funds.

On April 29, 2011, Wabash sued Landers claiming unjust enrichment and other wrongs. After a bench trial, the court found in favor of Wabash and issued findings of fact and conclusions of law. It directed Landers to pay Wabash $836,685 for her share of the stolen funds, plus four years of prejudgment interest of $200,804, for a total of $1,037,489. The court granted Wabash an equitable lien on Landers’ home. This appeal followed.

ISSUES

Landers’ claims on appeal are as follows:

I. Whether Wabash’s lawsuit is barred by the statute of limitation, and
II. Whether the trial court’s judgment is supported by sufficient evidence.

DISCUSSION AND DECISION

When the trial court enters findings of fact and conclusions of law, we apply a two-tiered standard of review. Troutwine Estates Dev. Co. v. Comsub Design & Eng’g, Inc., 854 N.E.2d 890, 896 (Ind.Ct.App.2006), trans. denied. We first address whether the evidence supports the findings, and then whether the findings support the judgment. The trial court’s findings and conclusions will be set aside only if they are clearly erroneous. We do not reweigh the evidence or reassess witness credibility, but consider only the evidence favorable to the judgment. Id. Where a pure question of law is involved, our standard of review is de novo. Id.

I. Statute of Limitation

Landers says she proved that Wabash commenced its suit beyond the statute of limitation. She further says Wabash did not act with reasonable diligence to discover McAninch’s theft because his illicit activities could have been discovered years earlier.

Under Indiana’s discovery rule, a cause of action accrues, and the statute of limitation begins to run, when a claimant knows or in the exercise of ordinary diligence should have known of the injury. Pflanz v. Foster, 888 N.E.2d 756 (Ind.2008). The party pleading a statute of limitation bears the burden of proving the suit was commenced beyond the statutory time allowed. Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274 (Ind.2009). Once the party makes a prima facie case, the burden shifts to the other party to prove such facts as will prevent the running of the statute. Arnold v. Dirrim, 398 N.E.2d 426 (Ind.Ct.App.1979). Nevertheless, the ultimate burden of persuasion remains on the party asserting the bar. Id. Determining when a cause of action accrues is generally a question of law. Cooper Indus., 899 N.E.2d at 1280. However, where, as here, application of a statute of limitation rests on questions of fact, it is an issue for the finder of fact to decide. Id. at 1279.

The parties agree that Wabash had six years from the date of injury, or the discovery of the injury in the exercise of ordinary diligence, to file suit against Lan-ders. Ind.Code § 34-11-2-7 (1998). Some or all of McAninch’s fraudulent transactions that resulted in funds being transferred to Landers did occur outside the six-year statute of limitation. Nevertheless, the trial court concluded that Wabash acted with ordinary diligence in managing its finances and in determining the whereabouts of its funds once it became aware of McAninch’s scheme.

There is sufficient evidence to support the trial court’s conclusion. As noted above, McAninch implemented an elaborate procedure to divert Wabash’s funds. This included false invoices and false minutes, kept in a locked drawer in his office, and a bank account in a fictitious company’s name. As the director of Wabash’s business office, he directed the people whose jobs it was to implement Wabash’s financial management procedures and process S & S’s fraudulent requests for payment.

As McAninch’s scheme progressed, Wabash’s finance committee met regularly to review financial reports and to approve financial statements that were provided to the full board of directors. McAninch was responsible for providing reports to the committee and preparing the committee minutes and financial statements for submission to the board of directors, and there was no apparent reason to question McAninch’s reports or suspect that he had created false minutes.

In addition, at Wabash’s direction McAninch had created the financial manual that governed Wabash’s accounting procedures. The board of directors and executive director regularly reviewed and updated the manual over the course of McAninch’s employment. There appears little contest that these procedures were appropriate. The contest is whether Wabash should have discovered they were not being followed.

Finally, Wabash hired an outside auditor to review Wabash’s books each year and submit a report to the Indiana State Board of Accounts. The auditor reviewed Wabash’s financial policies and procedures and examined Wabash’s documents to determine whether policies and procedures were being followed. Jeffrey Darling, Wabash’s executive director from 1990 through 2010, limited his interaction with the auditor because he felt it would be inappropriate for him to appear to direct her work, and the auditor concurred with his approach. Consequently, McAninch was the auditor’s main point of contact, and year after year McAninch supplied the auditor with false minutes and fake invoices from S & S, among the other financial documents the auditor reviewed. The auditor filed annual reports with the State Board of Accounts, and the Board never questioned the reports or launched its own investigation.

After McAninch committed suicide, Darling asked the auditor whether Wabash should obtain an outside analysis of Wabash’s financial management procedures. The auditor told Darling “[Wabash] really didn’t need to waste [its] money, that [its] internal control processes were strong relative to what she had seen in other organizations similar to [Wabash] and that if someone was going to steal money from you they would find a way.” Tr. p. 110.

This evidence of McAninch’s elaborate scheme and Wabash’s consistent monitoring of its financial procedures adequately supports the trial court’s conclusion that Wabash acted with ordinary diligence in managing its finances and could not have reasonably been expected to discover McAnineh’s theft prior to his suicide. Within a few months after McAninch’s suicide in October 2009, the forensic accounting firm hired to determine the scope of the theft and determine what McAninch did with the money submitted a report that concluded, “[F]unds were used by McAninch to pay for personal purchases, pay personal debt, purchase a new home, and provide funds to family members including ... Connie Landers.” Appellant’s App. p. 239. Wabash filed suit against Landers in 2011, well within six years of the date Wabash discovered McAninch’s theft and transfer of funds to Landers.

We find no clear error in the trial court’s conclusion that the statute of limitation did not bar Wabash’s suit.

II. Unjust Enrichment

To prevail on a claim of unjust enrichment, a plaintiff must establish that a measurable benefit has been conferred on the defendant under circumstances in which the defendant’s retention of the benefit without payment would be unjust. Encore Hotels of Columbus, LLC v. Preferred Fire Prot., 765 N.E.2d 658 (Ind.Ct.App.2002). Principles of equity prohibit unjust enrichment in cases where a party accepts the unrequested benefits provided by another despite having the opportunity to decline those benefits. Olsson v. Moore, 590 N.E.2d 160 (Ind.Ct.App.1992), trans. denied.

Here, the trial court determined that Wabash was entitled “to a constructive trust and/or an equitable lien” in the amount of $836,685 plus prejudgment interest, which represented funds stolen by McAninch from Wabash during the marriage and payments McAninch gave Lan-ders pursuant to their divorce agreement. Appellant’s App. p. 33. Landers argues that there is insufficient evidence to support the trial court’s conclusion that she received funds that McAninch had stolen from Wabash. Specifically, she says there is no evidence that she benefitted from the stolen funds during the marriage. Furthermore, she says McAninch could have used lawfully-earned money to cover all of his payments and transfers to her pursuant to the divorce decree, and Wabash failed to prove that he paid her with stolen money.

During the marriage, Landers and McAninch jointly managed their checking account. Landers acknowledged seeing checks McAninch received for “moonlighting income.” Tr. p. 66. Those checks were deposited in their joint account. During Landers and McAninch’s divorce negotiations, she estimated his income at “approximately $150,000.00 per year,” thereby indicating she was well aware that he had provided the family with money above and beyond his Wabash salary. Thus, there is evidence to support the trial court’s conclusion that Landers benefitted from funds McAninch had stolen from Wabash during the marriage. See Paul v. I.S.I. Servs., 726 N.E.2d 318, 322 (Ind.Ct.App.2000) (sufficient evidence of unjust enrichment of a spouse where the spouse’s husband deposited embezzled funds in their joint brokerage account and the funds were used for house and car payments).

Turning to the divorce and Landers’ claim that McAninch could have paid her with lawfully-obtained funds, we find guidance in Hicks v. State, 635 N.E.2d 1151 (Ind.Ct.App.1994), tram, denied. Joseph Hicks robbed three banks, and the State determined that some of the funds were deposited in bank accounts Joseph held jointly with his wife Jane. Other funds were found in a file cabinet in the marital home. The State sought to recover those funds, and Jane argued that the money in the bank accounts did not come from the robberies. The court cited a long-standing rule that where ill-gotten gains are commingled with other funds and the thief draws upon the commingled funds, the thief is presumed to draw out his own money first, and the remainder belongs to the source of the ill-gotten gains. Id. at 1156 (quoting Winstandley v. Second Nat. Bank of Louisville, 13 Ind.App. 544, 41 N.E. 956, 957-58 (1895)). Consequently, the court concluded that Joseph’s withdrawals from the accounts after the robberies but before the State’s lawsuit involved the Hicks’ own funds, and what was left in the bank accounts came from the stolen funds.

In this case, when the parties separated in 1998, McAninch “started buying lots of personal toys for himself.” Tr. p. 39. He spent “nearly $40,000” on a boat and accessories. Appellee’s App. p. 3. He also bought a new vehicle, a “Suburban.” Tr. p. 37.

Subsequently, the parties negotiated a divorce agreement through which Landers retained the house, which was valued at the time of trial at $391,000, and a vehicle. In addition, McAninch agreed to pay Lan-ders $20,000, to be followed by monthly payments of $3250 for sixty months (intended in part to pay the mortgage and in part to support Landers). McAninch further agreed to transfer $30,000 of his pension to Landers. He also took total responsibility for their son’s college expenses and “assumed [Landers’] responsibility for twenty percent” of his stepson’s college costs. Id. at 61. McAninch further agreed to pay child support for their son in a monthly amount well above what the Indiana Child Support Guidelines would require for McAninch’s reported income from Wabash. Finally, McAninch agreed to pay any of Landers’ educational expenses for seeking a master’s degree and a doctoral degree.

McAninch’s salary from Wabash in 1998 was $71,713, and it is difficult to conclude that he could have afforded to pay Lan-ders $20,000 at the time the divorce agreement was approved, plus begin monthly child support and spousal maintenance payments, using only his legitimate Wabash income. Similarly, McAninch’s subsequent spousal maintenance and child support obligations were quite large in comparison with his legitimate income from Wabash.

Based upon this evidence, the rule set forth in Hicks applies, and the trial court appropriately determined that the funds McAninch paid to Landers pursuant to the divorce decree, including equity in the home, were stolen from Wabash because McAninch had already spent his own legitimately-earned money on a boat, a vehicle, and other expenditures. Landers’ argument that McAninch paid her from a legitimate source of income is a request to reweigh the evidence.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

KIRSCH, J., and BRADFORD, J., concur.

      . This conclusion obviates the need to address a different point raised by Wabash — whether the statute of limitation ran as to Landers only when there was reason to know she possessed assets stolen from Wabash.

      . As with the issue mentioned in footnote 1, our conclusion concerning the trial court's finding about discovery with reasonable diligence likewise makes it unnecessary to determine whether the statute of limitation was tolled by Landers’ own fraudulent concealment. During the marriage, Landers knew McAninch was bringing in additional income through "moonlighting.” Tr. p. 66. During divorce negotiations in 1998, Landers told McAninch, "I am ... giving you advance warning of what to come, if you refuse to settle this my way.... You will be totally destroyed if this community finds out what you have been up to.” Appellee’s App. p. 4. She further stated that if the divorce was not resolved on her terms, "I will be completely truthful to family, friends, your employer, the court and the community with any and all information that I currently have concerning your personal integrity. I hope you realize you have a lot at stake and potentially have a lot more to lose.” Id. at 6. McAninch told Landers, "If we can’t make [the settlement] work between the two of us, we will all lose out in the end. We both have a lot to lose.” Id. at 1. He also stated, “If ... you carry out your vengeance, everyone loses in the end.” Id. at 2. The trial court characterized Lan-ders’ subsequent receipt of virtually the entire marital estate in the divorce settlement as "hush money." Appellant's App. p. 30.


author: BROWN, Judge.

text:
    Lamont HOLLOWAY, Appellant-Defendant, v. STATE Of Indiana, Appellee-Plaintiff.
    No. 49A02-1207-CR-548.
    Court of Appeals of Indiana.
    Feb. 27, 2013.

      Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michelle Bumgarner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Lamont Holloway appeals his convictions for burglary as a class B felony and theft as a class D felony. Holloway raises one issue, which we restate as whether the evidence was sufficient to support his convictions for burglary and theft. We affirm.

The relevant facts follow. Holloway lived in Marion County in a townhome which was adjacent to Valerie Suggs’s townhome. The front doors of the two townhomes were “within a couple feet of each other” and shared a common wall. Transcript at 7. At approximately 2:00 p.m. on October 26, 2011, Suggs left home to travel to a clinic where she worked and locked the doors and turned out all of the lights as she left. At approximately 4:30 p.m., Suggs’s daughter returned to the townhome after school, noticed that the television and a gaming system were missing, that a light was on in the home, and that a window in the back was broken, .and called Suggs at work. Suggs instructed her daughter to leave the home immediately, left work to travel home, and while traveling called the police and maintenance personnel so that someone would be with her daughter until she arrived home.

After arriving home, Suggs observed that a security bar to her patio door had been bent, that the kitchen window had been broken and there was glass on the floor, that her bedroom “had been completely ransacked,” and that a number of items were missing including a 42-inch television, a gaming system, a laptop, and a couch slipcover. Id. at 15. At some point, Suggs also discovered that a red baggie containing earrings and a necklace which she had left on a headboard in her bedroom was missing. Suggs later discovered other items missing, including a set of her car keys and a key to her shed, several electronic items, an iPad, some money, a watch which belonged to her daughter, and other mementos.

Suggs provided police with the serial numbers for several of the missing items, including the television and gaming system. Indianapolis Metropolitan Police Detective Jerry Salluom investigated the burglary and theft and, using the serial numbers of the television and gaming system which had been taken from Suggs’s home, was able to determine that the items had been sold to a pawn shop by Holloway at 4:41 p.m. on the day the items were taken. Detective Jerry Sal-luom arrested Holloway.

On November 10, 2011, the State charged Holloway with burglary as a class B felony and theft as a class D felony. In January 2012, the State alleged that Holloway was an habitual offender. At Holloway’s bench trial, Suggs testified regarding her observations on October 26, 2011, including that she would see Holloway “[frequently,” that “pretty much anytime I walked out of my home ... I had the very high chance of seeing him,” and that she had seen Holloway at about 1:00 p.m. on the day of October 26, 2011. Id. at 8. The State presented the testimony of the owner of the pawn shop where Holloway sold the television and gaming system, who testified regarding the business’s procedures to collect information regarding any seller of property and the merchandise purchased, and the State introduced the pawn tickets for the television and gaming system purchased from Holloway. Also, Detective Salluom indicated that the drive from the townhomes to the pawn shop was approximately fifteen minutes.

The court found Holloway guilty of burglary and theft as charged and found Holloway to be an habitual offender. The court sentenced Holloway to ten years for the burglary conviction, one and one-half years for the theft conviction to run concurrently with the sentence for the burglary conviction, and enhanced the sentence for the burglary conviction by ten years based upon the habitual offender finding for an aggregate sentence of twenty years in the Department of Correction.

The issue is whether the evidence is sufficient to sustain Holloway’s convictions for burglary and theft. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.2000)). It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be drawn from it to support the conviction. Id.

Identification testimony need not necessarily be unequivocal to sustain a conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind.Ct.App.1996). Elements of offenses and identity may be established entirely by circumstantial evidence and the logical inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind.1990). As with other sufficiency matters, we will not weigh the evidence or resolve questions of credibility when determining whether the identification evidence is sufficient to sustain a conviction. Id. Rather, we examine the evidence and the reasonable inferences therefrom that support the conviction. Id.

Holloway maintains that the evidence is insufficient to support his convictions for burglary and theft. The offense of burglary as a class B felony is governed by Ind.Code § 35-43-2-1, which provides in part that “[a] person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is ... a Class B felony if ... the building or structure is a ... dwelling....” Thus, to convict Holloway of burglary as a class B felony, the State needed to prove that he broke and entered a dwelling with intent to commit a felony in it. The offense of theft as a class D felony is governed by Ind.Code § 35 — 43—4— 2, which provides in part that “[a] person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.” Thus, to convict Holloway of theft as a class D felony, the State needed to prove that he knowingly or intentionally exerted unauthorized control over Suggs’s . property with intent to deprive her of any part of the property’s value or use.

Holloway specifically argues that the State presented insufficient evidence to prove beyond a reasonable doubt that he participated in the burglary itself. He asserts that there was no fingerprint evidence, no DNA evidence, no photographs or surveillance video implicating or identifying him as the person who had broken into Suggs’s home, and that no witnesses saw him entering or leaving Suggs’s home. He argues that the State did not allege that he was guilty of receiving stolen property and that the trial court did not convict him on that theory. Holloway also cites to Fortson v. State, 919 N.E.2d 1136 (Ind.2010), for the proposition that the fact that he was in possession of the recently stolen television and gaming console did not permit a conclusion that he took them, that those facts should have been considered along with the other evidence in the case, that the only other evidence was that he sold those items at a pawn shop that day and lived next door to Suggs, and that these facts do not show beyond a reasonable doubt that he was the thief. Holloway further asserts that pawning an item on the same day it was stolen, while suspicious, does not allow an automatic inference that the individual pawning it was the person who broke into a home and stole it and that his convictions must be vacated.

The State maintains that the evidence was sufficient to sustain Holloway’s convictions and that Holloway’s claim on appeal is merely an invitation for this court to reweigh the evidence. The State argues that Suggs’s home was unattended for a very small window of time, that the front doors of Suggs’s and Holloway’s homes were mere feet from each other, that Holloway was typically home when Suggs would come and go from her home and, as her immediate neighbor, he would have special knowledge of when Suggs’s home was unoccupied and when Suggs’s daughter would return from school. The State argues that Holloway pawned the items within a maximum two and one-half hours of the burglary, and that given the possession of the stolen property and Holloway’s relationship to and special knowledge of Suggs’s home, the trial court could and did reasonably infer that Holloway committed the burglary and theft.

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 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).” Donovan v. State, 937 N.E.2d 1223, 1226 (Ind.Ct.App.2010) (citing Fortson, 919 N.E.2d at 1143), trans. denied. 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.; see also Girdler v. State, 932 N.E.2d 769, 773 (Ind.Ct.App.2010) (noting that possession of recently stolen property is to be considered along with the other evidence in a case and the circumstances of the possession). The trier of fact must assess all of the evidence instead of focusing upon one piece of evidence, such as possession of recently stolen property. Donovan, 937 N.E.2d at 1226.

In this case, as Suggs’s immediate neighbor who was at home a short time before Suggs left for work, Holloway was in a position to know when Suggs’s town-home was unoccupied and had the opportunity to commit the burglary and theft. The evidence shows that Holloway lived in a townhome directly adjacent to Suggs’s townhome and that the townhomes shared a common wall. Further, Suggs testified that she saw Holloway frequently and had seen him at about 1:00 p.m. on the day of October 26, 2011. In addition, the evidence shows that Suggs left her townhome for work at approximately 2:00 p.m. and that her daughter returned to the home from school at 4:30 p.m. to discover the broken kitchen window and that property was missing. In addition, the evidence reveals that Holloway possessed and pawned the property taken from Suggs’s home a very short time after the items had been taken from the home. Specifically, the evidence shows that Holloway sold the television and gaming system to the pawn shop at 4:41 p.m. on the day the items were taken and that the drive from the townhomes to the pawn shop was approximately fifteen minutes. A reasonable inference from the evidence is that Holloway was the person who entered Suggs’s home and took the property. While the trial court could have made different inferences from the evidence, we cannot say that the inferences made by the court here were unreasonable.

Based upon the evidence, a rational fact-finder could have found that Holloway broke and entered Suggs’s townhome with intent to commit a felony in it and that he exercised unauthorized control over the property with the intent to deprive its owner of its value or use. Thus, we conclude that evidence of probative value exists from which the court as the trier of fact could have found Holloway guilty beyond a reasonable doubt of burglary as a class B felony and theft as a class D felony. See Donovan, 937 N.E.2d at 1226-1227 (holding that the evidence was sufficient to sustain the defendant’s conviction for auto theft); Brink v. State, 837 N.E.2d 192, 198 (Ind.Ct.App.2005) (holding that the inferences made by the trier of fact were not unreasonable and affirming the defendant’s convictions for burglary and theft), trans. denied.

For the foregoing reasons, we affirm Holloway’s convictions for burglary as a class B felony and theft as a class D felony.

Affirmed.

BAILEY, J., and VAIDIK, J., concur.

      . Ind.Code § 35-43-2-1 (2004).

      . Ind.Code § 35-43-4-2 (Supp.2009).