Deandre Averitte v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 20, 2015
• Docket: 49A02-1412-CR-860
• Status: Published

Opinion

MEMORANDUM DECISION Jul 20 2015, 11:21 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 Michael G. Moore Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Deandre Averitte July 20, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1412-CR-860 v. Appeal from the Marion Superior Court

State of Indiana, The Honorable Clayton A. Graham, Judge, and The Honorable Steven J. Appellee-Plaintiff. Rubick, Magistrate Trial Court Case No. 49G17-1408-F6-40167

Mathias, Judge.

[1] Deandre Averitte (“Averitte”) was convicted in Marion Superior Court of

unauthorized entry of a motor vehicle as a Level 6 felony and theft as a Class A

misdemeanor. Averitte appeals and presents two issues, which we restate as:

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 1 of 12 (1) whether the State presented sufficient evidence to support Averitte’s

conviction of unauthorized entry of a motor vehicle as a Level 6 felony; and (2)

whether the trial court erred in ordering Averitte to pay $140 in restitution

without determining Averitte’s ability to pay.

[2] We reverse in part and remand with instructions.

Facts and Procedural History

[3] At the time relevant to this appeal, Averitte was in a relationship with Jeterica

Penner (“Penner”), who lived in an apartment in Indianapolis. The couple had

one child together—nine-month-old K.A. Averitte did not live with Penner but

did sometimes spend the night at her apartment. Penner also allowed Averitte

to occasionally borrow her car, which she had purchased from a “buy here/pay

here” car dealership.

[4] On the night of August 15, 2014, Penner allowed Averitte to use her car for the

purposes of going to get a haircut and buying some new clothes. Instead,

Averitte used the car to go to a club and drink alcohol to celebrate his birthday.

Averitte did not return the car to Penner until approximately 3:00 a.m. the

following morning. When he returned to Penner’s apartment, Averitte was

drunk and smelled of women’s perfume. This angered Penner, who did not

want Averitte to be around her children. Penner went to her bedroom and lay

in her bed. When Averitte attempted to lie next to her, she got up and went to

the living room and sat on the couch. Averitte followed her there and sat next

to her on the couch. Averitte then became more aggressive, and Penner told

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 2 of 12 him to leave her alone. In response, Averitte telephoned his sister to prove to

Penner that he smelled of perfume because he had been with his sister and

cousins. Unconvinced, Penner locked herself in the bathroom, but Averitte

kicked in the door. Averitte’s sister, who was still on the telephone with her

brother, told Averitte that she would come to Penner’s apartment to pick him

up. Penner told Averitte to leave, but he stated that he was not going anywhere

and pushed Penner.

[5] Eventually, Penner and Averitte went into the kitchen, where Averitte

attempted to grab Penner’s car keys from her. Ultimately, Averitte was able to

pull the car key from Penner’s keychain. Around the same time, Averitte’s sister

and cousin arrived. Apparently siding with Penner, Averitte’s sister took Penner

and the children into the bedroom and locked the door. The sister informed

Averitte that he needed to “calm down” and leave. Tr. p. 23. Ignoring his

sister, Averitte kicked in the bedroom door, took his son, K.A., and left in

Penner’s car. Averitte’s sister told Penner that she saw Averitte drive away with

K.A. on his lap.

[6] K.A. was found at his cousin’s house across the street from Penner’s apartment

the next day. Sometime later, Penner’s car was recovered. However, because

Averitte had taken Penner’s only car key, she had to have a locksmith create a

new key for her, which cost $140. Averitte was soon arrested and admitted to

the police that he had taken the car and his son.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 3 of 12 [7] On August 20, 2014, the State charged Averitte with four counts: Count I,

Level 6 felony neglect of a dependent; Count II, Level 6 felony battery in the

presence of a child; Count III, Level 6 felony domestic battery; and Count IV,

Class A misdemeanor battery resulting in bodily injury. One week later, the

State amended the information to include two additional counts: Count V,

Level 6 felony unauthorized entry of a motor vehicle; and Count VI, Class A

misdemeanor theft. Averitte waived his right to a jury trial, and the trial court

held a bench trial on October 30, 2014. At the close of the State’s case-in-chief,

Averitte moved for an involuntary dismissal of Count I, which the trial court

granted. See Ind. Trial Rule 41(B). At the conclusion of the trial, the court found

Averitte not guilty as to Counts II – IV, but guilty as to Counts V and VI.

[8] At the sentencing hearing, which immediately followed the bench trial,

Averitte’s counsel argued that his conviction for Level 6 felony unauthorized

entry of a motor vehicle could not stand because the trial court had dismissed

the charge of child endangerment, yet the conviction for unauthorized entry

was elevated based on an allegation that Averitte had endangered K.A. The

trial court concluded that Averitte had waived this issue, and proceeded to

sentence Averitte on both counts to concurrent terms of one year, with 185 days

executed and 180 days suspended.

[9] On November 6, 2014, Averitte filed a motion to correct error. In this motion,

Averitte again argued that his conviction for unauthorized entry of a motor

vehicle was elevated to a Level 6 felony because of his use of the vehicle to

further the commission of a crime which the trial court had dismissed;

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 4 of 12 therefore, Averitte claimed that his conviction as a Level 6 felony could not

stand. The trial court denied the motion to correct error on November 20, 2014,

and Averitte now appeals.

I. Sufficiency of the Evidence

[10] Averitte first argues that the evidence was insufficient to support his conviction

for unauthorized entry into a motor vehicle as a Level 6 felony. When

reviewing claims of insufficient evidence, we apply our well-settled standard of

review: we will neither reweigh the evidence nor judge the credibility of the

witnesses; instead, we respect the exclusive province of the trier of fact to weigh

any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We

consider only the probative evidence and reasonable inferences supporting the

verdict, and we will affirm if the probative evidence and reasonable inferences

drawn therefrom could have allowed a reasonable trier of fact to find the

defendant guilty beyond a reasonable doubt. Id.

[11] To convict Averitte of unauthorized entry of a motor vehicle as a Level 6

felony, the State had to prove beyond a reasonable doubt that he:

did enter the motor vehicle of Jeterica Penner, to-wit: 2004 silver Chevrolet Malibu, knowing that he did not have permission of Jeterica Penner to enter said vehicle and Deandre Averitte did not have a contractual interest in said vehicle and the vehicle was used to further the commission of a crime, to-wit: endangering [K.A.], and Deandre Averitte knew or should have known that such was intended.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 5 of 12 Appellant’s App. pp. 28-29 (emphasis added). This generally tracks the

language of the relevant statute, which provides:

(d) A person who: (1) enters a motor vehicle knowing that the person does not have the permission of an owner, a lessee, or an authorized operator of the motor vehicle to enter the motor vehicle; and (2) does not have a contractual interest in the motor vehicle; commits unauthorized entry of a motor vehicle, a Class B misdemeanor. (e) The offense under subsection (d) is: *** (2) a Level 6 felony if a person occupies the motor vehicle while the motor vehicle is used to further the commission of a crime, if the person knew or should have known that a person intended to use the motor vehicle in the commission of a crime.

Ind. Code § 35-43-4-2.7 (2013).

A. Lack of Contractual Interest

[12] Averitte first argues that the evidence was insufficient to establish that he did

not have a contractual interest in the vehicle as required by subsection (d)(2).

Averitte notes that the only evidence regarding this element was Penner’s

testimony that she purchased the vehicle at a “buy here/pay here” lot and that

the dealer retained a key in order to regain possession of the car should Penner

default on her payments. Averitte therefore claims that this means that more

than one person had a contractual interest in the vehicle: Penner and the dealer.

However, this is irrelevant.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 6 of 12 [13] The fact that two other people—Penner and the dealer—may have had a

contractual interest in the vehicle has no bearing on whether Averitte himself

had a contractual interest in the car. In this regard, Penner testified that she

alone purchased the car from the dealer and that Averitte had never paid for the

vehicle. Further, Penner explained that she occasionally gave Averitte

permission to use her car. After Averitte came back to her apartment after a

night celebrating in a club, however, Penner did not give him permission and

instead attempted to prevent him from taking the car. Indeed, Averitte had to

pull the car key from the keychain that was in Penner’s hand. From this, a

reasonable trier of fact could conclude that Averitte did not have a contractual

interest in Penner’s vehicle.

B. Furthering the Commission of Child Endangerment

[14] Averitte also claims that the State failed to prove that he used Penner’s car to

further the commission of the crime of endangering K.A. The State was

required to prove this in order to elevate Averitte’s conviction to a Level 6

felony. See I.C. § 35-43-4-2.7(e)(2).

[15] Penner was also charged with endangering K.A. as a separate offense. The

charge of child endangerment alleged that Averitte: “having the care of [K.A.],

a dependent, did knowingly place said dependent in a situation that endangered

the dependent’s life or health, that is, drove a vehicle with [K.A.] on his lap,

unrestrained in the driver’s seat and/or while under the influence of alcohol.”

Appellant’s App. p. 28. However, the trial court dismissed this charge at the

close of the State’s evidence for lack of evidence. See Tr. p. 60. Averitte Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 7 of 12 therefore argues that his conviction for unauthorized entry of a motor vehicle

cannot be elevated based on the same alleged act of child endangerment for

which the trial court concluded the evidence was insufficient. We are inclined

to agree.

[16] At trial the only evidence regarding how K.A. was secured in the car was the

hearsay statement of Averitte’s sister, who told Penner that Averitte drove off

with K.A. on his lap.1 That statement, however, was stricken from the record

upon objection and motion by the defense. Thus, the prosecution presented no

evidence regarding whether K.A. was in a car seat or in Averitte’s lap as

alleged.

[17] With regard to the allegation that Averitte endangered K.A. by driving with the

child while under the influence of alcohol, the trial court specifically found that

the evidence was insufficient to support this allegation:

there is no evidence in the record [that] the child was not adequately placed in the safety seat. There is no evidence in the record of any impaired driving, or otherwise. There is simply a statement that the child was taken from the residence and was found across the street a few hours later.

Tr. p. 60 (emphasis added). Accordingly, Averitte’s conviction cannot be

elevated to a Level 6 felony for endangering K.A. because no admissible

evidence shows that Averitte drove with K.A. unsecured on his lap and/or

1 The prosecution made no argument that the statement by Averitte’s sister was an excited utterance, a present sense impression, or any other exception to the hearsay rule.See Tr. p. 32.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 8 of 12 while under the influence of alcohol. We therefore reverse Averitte’s conviction

for unauthorized entry of a motor vehicle as a Level 6 felony and remand with

instructions that the trial court vacate the judgment and sentence thereon. The

State did, however, establish that Averitte committed the offense of

unauthorized entry of a motor vehicle as a Class B misdemeanor, and on

remand, we further instruct the trial court to enter a judgment of conviction for

Class B misdemeanor unauthorized entry of a motor vehicle and impose a

sentence thereon.

II. Restitution

[18] Averitte also claims that the trial court erred in ordering him to pay $140 in

restitution to Penner to cover her cost of obtaining a new key for her car. Our

supreme court has explained:

The principal purpose of restitution is to vindicate the rights of society and to impress upon the defendant the magnitude of the loss the crime has caused. Restitution also serves to compensate the offender’s victim. And, when the trial court enters an order of restitution as part of a condition of probation, the court is required to inquire into the defendant’s ability to pay. See Ind. Code § 35-38-2-2.3(a)(5) (“When restitution or reparation is a condition of probation, the court shall fix the amount, which may not exceed an amount the person can or will be able to pay, and shall fix the manner of performance.”). This is so in order to prevent indigent defendants from being imprisoned because of a probation violation based on a defendant’s failure to pay restitution. *** [A] trial court may [also] order restitution as part of a defendant’s sentence wholly apart from probation. And when restitution is Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 9 of 12 ordered as part of an executed sentence, an inquiry into the defendant’s ability to pay is not required. In such a situation, restitution is merely a money judgment, see I.C. § 35-50-5-3(b), and a defendant cannot be imprisoned for non-payment.

Pearson v. State, 883 N.E.2d 770, 772-73 (Ind. 2008) (some citations omitted).

[19] In the present case, it is not entirely clear whether the trial court’s restitution

order was a condition of probation or a money judgment entered as a separate

part of Averitte’s sentence. The trial court’s oral sentencing statement provided

that:

[Averitte] will be placed on probation for one hundred eighty (180) days, subject to the standard terms and conditions of the Marion County probation department. He is ordered to pay restitution to Jeterica Penner in the amount of one hundred forty ($140) dollars, that amount being the cost incurred by the victim for recovering the vehicle, the key for the vehicle. He will be assessed court costs in the amount of one hundred sixty eight ($168) dollars. There will be a thirty two ($32) dollar fine. I'll place him on a sliding scale for all probation user fees.

Tr. p. 82. Neither the sentencing order nor the abstract of judgment mention the

restitution order. The chronological case summary (“CCS”) contains an entry

providing in relevant part:

Fee Totals: Adult Probation 100.00 User Fee Program Criminal Case 32.00 Fines Criminal Court 168.00 Costs and Fees

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 10 of 12 Judgment Restitution 140.00 Fee Totals $ 440.00 Comment ( ) Confinement to Commence 10/30/2014 County Jail Term: 365 Days Jail Credit: 71 Days Suspended: 180 Days Condition – Adult: 1. Probation Sliding scale for probation fees. Defendant to pay restitution to AV in amount of 140.00 as first priority.

Appellant’s App. p. 10 (emphasis added). Thus, the CCS lists the restitution as

a “judgment.” This would seem to indicate that the restitution order was a

separate money judgment. However, under the heading of “conditions” is a

mention of probation and that Averitte was to pay restitution as “first priority.”

Id. This could be read as a requirement that Averitte pay restitution as a

condition of his probation.

[20] We are therefore unable to determine whether the restitution was intended to be

a condition of probation or a separate money judgment.2 Upon remand, we

instruct the trial court to clarify whether the restitution order is a condition of

probation. If it is, then the trial court must inquire as to Averitte’s ability to pay.

See Pearson, 883 N.E.2d at 772. If the restitution is simply a money judgment,

2 The State, assuming that the restitution order was a condition of probation, argues that sufficient evidence is in the record to support a finding that Averitte could pay $140 in restitution. This may well be. However, the trial court did not inquire into Averitte’s ability to pay, nor did it make a finding that he did have the ability to pay. This court is not a fact-finding court, and Averitte’s ability to pay restitution must be determined in the first instance by the trial court, if the court intended the payment of restitution to be a condition of Averitte’s probation.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 11 of 12 then the trial court has no need to inquire as to Averitte’s ability to pay. See id.

at 772-73.

Conclusion

[21] We reverse Averitte’s conviction for unauthorized entry of a motor vehicle as a

Level 6 felony and remand with instructions that the trial court vacate the

judgment and sentence on this conviction and instead enter a judgment of

conviction for Class B misdemeanor unauthorized entry of a motor vehicle and

impose a sentence thereon. We are unable to determine whether the trial court’s

restitution order is a condition of Averitte’s probation or a separate money

judgment. On remand, the trial court is instructed to clarify whether the

restitution order is a condition of probation and, if so, determine whether

Averitte is able to pay this relatively small amount of restitution.

[22] Reversed in part and remanded for proceedings consistent with this opinion.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-860 | July 20, 2015 Page 12 of 12