MEMORANDUM DECISION Jul 15 2015, 5:23 am Pursuant to Ind. Appellate Rule 65(D), 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 David M. Payne Gregory F. Zoeller Ryan & Payne Attorney General of Indiana Marion, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daytwon Tyrone Black, July 15, 2015
Appellant-Defendant, Court of Appeals Case No. 27A04-1411-CR-514 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Warren Haas, Judge Appellee-Plaintiff Case No. 27D03-1408-CM-118
Crone, Judge.
Case Summary [1] Daytwon Tyrone Black appeals his conviction for class A misdemeanor theft.
The dispositive issue presented for our review is whether the State presented
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 1 of 7 sufficient evidence to support his conviction. Finding the evidence sufficient, we
affirm.
Facts and Procedural History [2] In August of 2014, Jason Lines owned an orange and silver VIP moped, which
he stored on his front porch on the 2900 block of South Nebraska Street in
Marion. The moped had duct tape on the seat, a “Village Scooter” sticker on it,
and a heart drawn with marker by the handle bars. There was a light switch
under the dash in place of a key ignition, and the moped was equipped with a
hard-shell luggage carrier. Lines went to bed one night at around 11:00 and
noted that his moped was still parked on his porch. Lines’s neighbor also
observed the moped on Lines’s porch that night at around midnight. Lines
awoke at around 7:30 the following morning and discovered that his moped
had been stolen from his porch.
[3] At around the same time that morning, Detective Kent Wilson received an
anonymous tip that Black was in the backyard of his residence working on a
possibly stolen moped. Detective Wilson sent an officer to investigate. Officer
Benjamin McKnight arrived at Black’s house and noticed that he was in the
backyard working on a moped. Officer McKnight informed Black why he was
there. Black told Officer McKnight that an acquaintance had dropped off the
moped for him to work on. Officer McKnight observed the moped and noted
that it was orange and silver with blue painter’s tape going up the side and
covering the VIP logo. He further observed that a heart had been drawn near
the handle bars and that the ignition key socket was removed and replaced by a Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 2 of 7 light switch. The seat was missing, but was later found alongside railroad tracks
directly behind Black’s home. The seat had duct tape on it. Officer McKnight
ran the VIN number and learned that the moped had not been reported as
stolen.
[4] Detective Wilson arrived at Black’s house and met with him and Officer
McKnight in the backyard. Detective Wilson observed the orange and silver
moped with parts stripped off of it. He noticed that the ignition was punched
out and was replaced with a toggle switch, and that the seat and a hard-shell
luggage carrier had been removed. The “Village Scooter” sticker had been
removed and was lying on the ground, along with a luggage rack lock.
Detective Wilson requested that Black go to the police department to be
interviewed, and Black agreed. The moped was towed and impounded.
[5] After the moped was towed, Officer McKnight received a tip that a moped had
been stolen from the 2900 block of South Nebraska Street and that Black had
been observed pushing a moped down an alley to his house. Officer McKnight
drove to that block to conduct an investigation. Lines approached Officer
McKnight and reported that his moped had been stolen. Lines described his
moped as an orange and silver VIP that had a light switch to turn on the
ignition, duct tape on the seat, and a heart design drawn near the handle bars.
Officer McKnight notified Detective Wilson of Lines’s report.
[6] Meanwhile, Black gave a statement to Detective Wilson and claimed that a
friend named Dustin Gannis had dropped off the moped at his house between
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 3 of 7 7:00 and 8:00 the previous night. Black could not provide any contact
information for Dustin Gannis other than that he lived on 30th Street. Black
explained that he did not have Gannis’s phone number because Gannis would
just stop by if he needed any work done. Approximately fifteen minutes into the
interview, Detective Wilson was informed that the moped had been confirmed
stolen. Detective Wilson made efforts to locate Dustin Gannis via social media,
interdepartment databases, and neighborhood interviews, but had no success
locating him or establishing that he even exists.
[7] The State charged Black with class A misdemeanor theft. Following a bench
trial, the court found Black guilty as charged. This appeal ensued.
Discussion and Decision [8] To sustain a conviction for class A misdemeanor theft, the State was required to
prove beyond a reasonable doubt that Black knowingly or intentionally exerted
unauthorized control over Lines’s moped, with the intent to deprive Lines of
any part of its value or use. Ind. Code § 35-43-4-2. Black concedes that the State
proved three elements beyond a reasonable doubt: (1) that he, Daytwon Black;
(2) exerted unauthorized control; (3) over Lines’s moped. The contested issues,
which Black argues the State failed to prove beyond a reasonable doubt, are that
he acted (1) knowingly or intentionally; and (2) with the intent to deprive Lines
of any part of the moped’s value or use.
[9] When reviewing the sufficiency of the evidence to support a conviction, we
examine only the probative evidence and reasonable inferences that support the
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 4 of 7 verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We do not assess
witness credibility or reweigh evidence. Id. Rather, we consider only the
evidence most favorable to the verdict and will affirm the conviction unless no
reasonable factfinder could find the elements of the crime proven beyond a
reasonable doubt. Id. A conviction may be based solely on circumstantial
evidence, which “need not overcome every reasonable hypothesis of
innocence.” Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995).
[10] “A person engages in conduct knowingly if, when he engages in the conduct, he
is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A
person engages in conduct intentionally if, when he engages in the conduct, it is
his conscious objective to do so.” Ind. Code § 35-41-2-2(a). Intent is ‘“a mental
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MEMORANDUM DECISION Jul 15 2015, 5:23 am Pursuant to Ind. Appellate Rule 65(D), 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 David M. Payne Gregory F. Zoeller Ryan & Payne Attorney General of Indiana Marion, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Daytwon Tyrone Black, July 15, 2015
Appellant-Defendant, Court of Appeals Case No. 27A04-1411-CR-514 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Warren Haas, Judge Appellee-Plaintiff Case No. 27D03-1408-CM-118
Crone, Judge.
Case Summary [1] Daytwon Tyrone Black appeals his conviction for class A misdemeanor theft.
The dispositive issue presented for our review is whether the State presented
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 1 of 7 sufficient evidence to support his conviction. Finding the evidence sufficient, we
affirm.
Facts and Procedural History [2] In August of 2014, Jason Lines owned an orange and silver VIP moped, which
he stored on his front porch on the 2900 block of South Nebraska Street in
Marion. The moped had duct tape on the seat, a “Village Scooter” sticker on it,
and a heart drawn with marker by the handle bars. There was a light switch
under the dash in place of a key ignition, and the moped was equipped with a
hard-shell luggage carrier. Lines went to bed one night at around 11:00 and
noted that his moped was still parked on his porch. Lines’s neighbor also
observed the moped on Lines’s porch that night at around midnight. Lines
awoke at around 7:30 the following morning and discovered that his moped
had been stolen from his porch.
[3] At around the same time that morning, Detective Kent Wilson received an
anonymous tip that Black was in the backyard of his residence working on a
possibly stolen moped. Detective Wilson sent an officer to investigate. Officer
Benjamin McKnight arrived at Black’s house and noticed that he was in the
backyard working on a moped. Officer McKnight informed Black why he was
there. Black told Officer McKnight that an acquaintance had dropped off the
moped for him to work on. Officer McKnight observed the moped and noted
that it was orange and silver with blue painter’s tape going up the side and
covering the VIP logo. He further observed that a heart had been drawn near
the handle bars and that the ignition key socket was removed and replaced by a Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 2 of 7 light switch. The seat was missing, but was later found alongside railroad tracks
directly behind Black’s home. The seat had duct tape on it. Officer McKnight
ran the VIN number and learned that the moped had not been reported as
stolen.
[4] Detective Wilson arrived at Black’s house and met with him and Officer
McKnight in the backyard. Detective Wilson observed the orange and silver
moped with parts stripped off of it. He noticed that the ignition was punched
out and was replaced with a toggle switch, and that the seat and a hard-shell
luggage carrier had been removed. The “Village Scooter” sticker had been
removed and was lying on the ground, along with a luggage rack lock.
Detective Wilson requested that Black go to the police department to be
interviewed, and Black agreed. The moped was towed and impounded.
[5] After the moped was towed, Officer McKnight received a tip that a moped had
been stolen from the 2900 block of South Nebraska Street and that Black had
been observed pushing a moped down an alley to his house. Officer McKnight
drove to that block to conduct an investigation. Lines approached Officer
McKnight and reported that his moped had been stolen. Lines described his
moped as an orange and silver VIP that had a light switch to turn on the
ignition, duct tape on the seat, and a heart design drawn near the handle bars.
Officer McKnight notified Detective Wilson of Lines’s report.
[6] Meanwhile, Black gave a statement to Detective Wilson and claimed that a
friend named Dustin Gannis had dropped off the moped at his house between
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 3 of 7 7:00 and 8:00 the previous night. Black could not provide any contact
information for Dustin Gannis other than that he lived on 30th Street. Black
explained that he did not have Gannis’s phone number because Gannis would
just stop by if he needed any work done. Approximately fifteen minutes into the
interview, Detective Wilson was informed that the moped had been confirmed
stolen. Detective Wilson made efforts to locate Dustin Gannis via social media,
interdepartment databases, and neighborhood interviews, but had no success
locating him or establishing that he even exists.
[7] The State charged Black with class A misdemeanor theft. Following a bench
trial, the court found Black guilty as charged. This appeal ensued.
Discussion and Decision [8] To sustain a conviction for class A misdemeanor theft, the State was required to
prove beyond a reasonable doubt that Black knowingly or intentionally exerted
unauthorized control over Lines’s moped, with the intent to deprive Lines of
any part of its value or use. Ind. Code § 35-43-4-2. Black concedes that the State
proved three elements beyond a reasonable doubt: (1) that he, Daytwon Black;
(2) exerted unauthorized control; (3) over Lines’s moped. The contested issues,
which Black argues the State failed to prove beyond a reasonable doubt, are that
he acted (1) knowingly or intentionally; and (2) with the intent to deprive Lines
of any part of the moped’s value or use.
[9] When reviewing the sufficiency of the evidence to support a conviction, we
examine only the probative evidence and reasonable inferences that support the
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 4 of 7 verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We do not assess
witness credibility or reweigh evidence. Id. Rather, we consider only the
evidence most favorable to the verdict and will affirm the conviction unless no
reasonable factfinder could find the elements of the crime proven beyond a
reasonable doubt. Id. A conviction may be based solely on circumstantial
evidence, which “need not overcome every reasonable hypothesis of
innocence.” Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995).
[10] “A person engages in conduct knowingly if, when he engages in the conduct, he
is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A
person engages in conduct intentionally if, when he engages in the conduct, it is
his conscious objective to do so.” Ind. Code § 35-41-2-2(a). Intent is ‘“a mental
function, and without a confession, it must be determined from a consideration
of the conduct and the natural consequences of the conduct giving rise to the
charge that the defendant committed theft.”’ Long v. State, 867 N.E.2d 606, 614
(Ind. Ct. App. 2007). Therefore, “intent may be proven by circumstantial
evidence,” and it “may be inferred from a defendant’s conduct and the natural
and usual sequence to which such conduct logically and reasonably points.”
Duren v. State, 720 N.E.2d 1198, 1202 (Ind. Ct. App. 1999), trans. denied (2000).
[11] “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” regarding the
“circumstances of the possession.” Holloway v. State, 983 N.E.2d 1175, 1179
(Ind. Ct. App. 2013). “The fact of possession and all the surrounding evidence
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 5 of 7 about the possession must be assessed to determine whether any rational trier of
fact could find the defendant guilty beyond a reasonable doubt.” Id. Both Lines
and his neighbor confirmed that the moped was parked on Lines’s porch as late
as 11:00 p.m. to midnight. An anonymous tip revealed that Black was pushing
the moped down an alley toward his house that night, and he was
disassembling the moped in his backyard hours later. Black alleged that a man
named Dustin Gannis brought the moped to his house between 7:00 and 8:00
that evening, but police, after much effort, were unable to confirm that this man
even exists. Black had no phone number, address, or any other contact
information for this man other than that he lived somewhere on 30th Street. It
was reasonable for the trier of fact to infer from this evidence that Black lied
when he explained how and when he came into possession of the moped.
Black’s argument to the contrary is merely an invitation to reweigh evidence
and judge witness credibility, which we may not do. Thus, the trier of fact could
reasonably determine from these circumstances that Black knowingly or
intentionally exerted unauthorized control over Lines’s property.
[12] The same evidence that proves that Black acted knowingly or intentionally also
supports the conclusion that he acted with the intent to deprive Lines of the use
or value of the moped. The evidence would support the conclusion that Black
took Lines’s moped from Lines’s porch sometime in the middle of the night,
without Lines’s permission, and transported it to his backyard where he began
disassembling it. Parts were scattered around the yard, and the seat was
discarded along nearby railroad tracks. Breaking down or otherwise altering a
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 6 of 7 vehicle makes it more difficult to trace and identify. Thus, the trier of fact could
reasonably determine that Black intended to deprive Lines of the use or value of
his moped. Consequently, we affirm Black’s conviction.
[13] Affirmed.
Brown, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A04-1411-CR-514 | July 15, 2015 Page 7 of 7