Anthony T. Wilburn, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Anthony Wilburn appeals the trial court's denial of his motion to compel the immediate return of his property. Finding no error, we affirm.

Facts and Procedural History

[2] Wilburn was charged with several criminal offenses in May 2017. A jury trial was held in February 2018, and Wilburn was found guilty as charged. The trial court entered judgment of conviction on all but one of the offenses and sentenced Wilburn. He appealed his convictions to this Court, arguing that the trial court had abused its discretion in the admission of evidence. A panel of this Court agreed, determined that retrial would not offend double jeopardy principles, and reversed and remanded Wilburn's case for a new trial. Wilburn v. State, No. 18A-CR-894 (Ind. Ct. App. Nov. 2, 2018) (mem.).

[3] In March 2024, the State dismissed its case against Wilburn with prejudice. The following March, Wilburn moved the trial court for return of his property that he alleged had been seized from him when he was arrested in this case. The trial court granted his motion and ordered that Wilburn's property be released. Wilburn subsequently moved to compel release of the property. The trial court denied Wilburn's motion to compel, and this appeal ensued.

Discussion and Decision

[4] Wilburn argues that the trial court erred by denying his motion to compel the release of his alleged property that was seized when he was originally arrested in this case. Upon review of the denial of a motion for return of property, we will affirm unless the decision is clearly erroneous and cannot be sustained on any legal theory supported by the evidence. Warren v. State, 120 N.E.3d 285, 288 (Ind. Ct. App. 2019).

[5] The return of property following the final disposition of a criminal cause is governed by Indiana Code section 35-33-5-5, which provides in relevant part: “Property which may be lawfully possessed shall be returned to its rightful owner, if known. If ownership is unknown, a reasonable attempt shall be made by the law enforcement agency holding the property to ascertain ownership of the property.” Thus, property will be returned when the claimant shows that (1) he is the rightful owner and (2) he may lawfully possess the property. A person seeking the return of property seized by the state must demonstrate his claim by a preponderance of the evidence. Warren, 120 N.E.3d at 288.

[6] The parties do not seem to dispute that Wilburn is the rightful owner of the items, as the State did not object to the release of the items, and the trial court granted the motion. But in denying Wilburn's motion to compel, the trial court determined, essentially, that the items are property that may not be lawfully possessed by Wilburn. The items Wilburn listed in his original motion are an iPhone, a pair of Michael Jordan basketball shoes, a leather belt, a Michael Jordan shirt, gold earrings, a Rolex watch, two gold chains, and two gold pendants. Appellant's App. Vol. II, p. 31 (Motion for Return of Property).

[7] Wilburn seems to concede that he is unable to lawfully possess the items at this time. He admits that he is in the DOC and that the DOC has regulations prohibiting the possession of certain property by inmates. Appellant's Br. pp. 7, 5-6. Indeed, as the State points out for example, Indiana Code section 35-44.1-3-8 makes it unlawful to possess a cell phone in a penal facility. See Appellee's Br. p. 9.

[8] Further, in denying Wilburn's motion to compel the return of his property, the trial court specifically found that Wilburn “cannot retrieve his property as he [is] in the custody of the Indiana Department of Correction[ ].” Appellant's App. Vol. II, p. 30 (Appealed Order). Wilburn responds by citing a DOC administrative policy and procedure that provides that when a prisoner has prohibited property, he may identify an individual or charitable organization to whom the items may be shipped at the prisoner's expense. Appellant's Br. p. 6.

[9] Wilburn cites to a DOC policy concerning property possessed by a prisoner while in the DOC, but Wilburn possessed the property at issue when he was arrested and placed in a county jail, not the DOC. However, even if we assume similar options are available at the county level for the return of an inmate's property, Wilburn neither suggested an alternative measure nor designated an individual or charitable organization to whom his property could be released. See, e.g., Warren, 120 N.E.3d at 287 (noting that trial court directed State to release property to defendant or his agent); Williams v. State, 952 N.E.2d 317, 319 (Ind. Ct. App. 2011) (concluding that trial court erred by denying defendant's motion to release gun to counsel based on its finding that defendant could not possess gun at time of disposition; defendant requested gun be returned to his counsel not to him and defendant's inability to lawfully possess gun, without more, did not prevent return of gun to counsel).

Conclusion

[10] Based on the foregoing, we conclude that Wilburn did not meet his burden of demonstrating by a preponderance of the evidence that he may lawfully possess these items, as he is incarcerated in the DOC. Moreover, he did not request an alternative arrangement for the release of his property or designate an individual to act as his agent and receive the property. Accordingly, we affirm the trial court's denial of Wilburn's motion to compel the return of his property.

[11] Affirmed.

Baker, Senior Judge.

Altice, J., and Scheele, J., concur.