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 C. BORSCHEL                                 GREGORY F. ZOELLER
Fishers, Indiana                                    Attorney General of Indiana

                                                    ANGELA N. SANCHEZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                                  Apr 23 2013, 9:29 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

D.S.,                                               )
                                                    )
        Appellant-Respondent,                       )
                                                    )
               vs.                                  )      No. 49A04-1210-JV-522
                                                    )
STATE OF INDIANA,                                   )
                                                    )
        Appellee-Petitioner.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marilyn A. Moores, Judge
                       The Honorable Geoffrey A. Gaither, Magistrate
                             Cause No. 49D09-1207-JD-1842



                                          April 23, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       D.S. appeals the adjudication finding him a delinquent child for committing what

would be the crime of receiving stolen property1 as a Class D felony if committed by an

adult. On appeal, D.S. raises the following restated issues:

       I.        Whether the juvenile court abused its discretion by permitting the
                 State to reopen its case in chief; and

       II.       Whether the juvenile court committed reversible error by denying
                 his motion for involuntary dismissal under Indiana Trial Rule 41(B).

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       During May 2012, Ty Steigmeyer (“Steigmeyer”) and Leslie Uland (“Uland”)

lived in the 4500 block of Carrollton Avenue in Indianapolis. Around 7:00 p.m. on May

17, 2012, the couple left their two Trek bicycles on their home’s screened-in porch.

When Uland awoke at 7:00 the next morning, she discovered that the porch screen had

been cut and the bicycles were gone. The couple called the Indianapolis Metropolitan

Police Department (“IMPD”), but because the police station was involved in roll call,

officers did not immediately respond.

       Uland and Steigmeyer decided to drive around the neighborhood to look for their

bicycles. In the alley of the 4300 block of Carrollton Avenue, less than two blocks from

their home, they saw Steigmeyer’s bicycle and lock in a backyard.               Steigmeyer

approached the bicycle and confirmed that it was his. The couple left the bicycle and

lock at the scene and drove to a nearby police station to inform the police that they had

found the bicycle.

       1
           See Ind. Code § 35-43-4-2.

                                               2
      Officer Martin Koeller (“Officer Koeller”) of the IMPD was standing outside the

police station near his patrol car; the couple told him their story.     Officer Koeller

responded to their request to investigate, located the residence in question, but did not

find the bicycle. However, Officer Michael Burgess (“Officer Burgess”) of the IMPD,

responding contemporaneously to the original theft call, drove independently to the

location and found a bicycle matching Steigmeyer’s bicycle inside a locked front porch at

the house at 4301 Carrollton Avenue. Officer Burgess also noticed a bicycle lock at the

rear of the residence. Steigmeyer identified the bicycle as his. The bicycle serial number

matched that from Steigmeyer’s original purchase and Steigmeyer’s key opened the

bicycle lock found in the backyard. The police returned the bicycle to Steigmeyer, and

the next day, D.S.’s father came to Steigmeyer’s home to report that the second bicycle

could also be found at his home at 4301 Carrollton Avenue. Uland’s bicycle was also

recovered from that location.

      While at the scene, Officer Koeller spoke to several persons including D.S., his

aunt, and his father. Officer Koeller was also present when D.S. was interviewed by a

detective. During that meeting, D.S. stated that he bought what was later identified as

Steigmeyer’s bicycle from someone on the street in his neighborhood for ten or twenty

dollars. Eventually, D.S. was arrested and the State filed a petition charging him with

committing what would be the crime of receiving stolen property as a Class D felony if

committed by an adult.

      On August 29, 2012, the juvenile court held a denial hearing. Following the

State’s case in chief, D.S. moved for involuntary dismissal pursuant to Indiana Trial Rule

                                            3
41(B) on the basis that the State had produced no evidence that D.S. possessed the

bicycles or “that he knew that [the bicycles] were stolen.” Tr. at 23. The juvenile court

granted the State’s motion to reopen its case to ask some additional questions of Officer

Koeller.   Thereafter, D.S. renewed his motion for involuntary dismissal, which the

juvenile court denied. The juvenile court found the allegation of D.S.’s delinquency to be

true. D.S. now appeals.

                             DISCUSSION AND DECISION

                     I.     Motion to Reopen State’s Case in Chief

       D.S. first contends that the juvenile court abused its discretion when it granted the

State’s motion to reopen its case in chief during the fact-finding hearing. A party should

generally be afforded the opportunity to reopen its case to submit evidence that could

have been part of its case in chief. Saunders v. State, 807 N.E.2d 122, 126 (Ind. Ct. App.

2004). Whether to grant a party’s motion to reopen its case after having rested is a matter

committed to the sound discretion of the trial judge. Id. The factors that weigh in the

exercise of discretion include whether there is prejudice to the opposing party, whether

the party seeking to reopen appears to have rested inadvertently or purposely, the stage of

the proceedings at which the request is made, and whether any real confusion or

inconvenience would result from granting the request.             Id.   Additionally, “[t]he

opportunity for a party to reopen its case includes the chance to cure a claimed

insufficiency of evidence.” Lewis v. State, 406 N.E.2d 1226, 1230 (Ind. Ct. App. 1980)

(citing Eskridge v. State, 258 Ind. 363, 369, 281 N.E.2d 490, 493 (1972)). The rationale

being that “‘a trial is not a game of technicalities, but one in which the facts and truth are

                                              4
sought.’” Ford v. State, 523 N.E.2d 742, 746 (Ind. 1988) (quoting Eskridge, 258 Ind. at

369, 281 N.E.2d at 493).

       Following the State’s case in chief, D.S. moved for involuntary dismissal pursuant

to Indiana Trial Rule 41(B) on the basis that the State had produced no evidence that D.S.

possessed the bicycles or “that he knew that [the bicycles] were stolen.” Tr. at 23. The

State immediately made a motion to reopen its case in chief in order to ask Officer

Koeller, who had recently testified, a few more questions. Id. at 24. The juvenile court

granted the State’s request. The State questioned Officer Koeller about information he

learned during an interview of D.S. Id. at 26. Officer Koeller testified that D.S. stated he

had purchased one bicycle from a black male who approached him on the street, that he

did not know the man’s name; and that he had paid the man ten or twenty dollars for the

bicycle. Id. at 31. Officer Koeller “took that to mean that [D.S.] had possession of [the

bicycle].” Id. D.S. maintains that the juvenile court abused its discretion when it granted

the State’s motion to reopen the case.

       Our decision in Saunders serves as guidance to our analysis. At the close of the

State’s case, Saunders moved for judgment on the evidence based on the State’s failure to

identify Saunders as the person accused. Saunders, 807 N.E.2d at 126. The trial court

denied Saunders’s motion, and then allowed the State to reopen its case so the victim

could identify Saunders. Id. Saunders alleged this was error, as he was prejudiced by the

identification. Id. Our court reasoned as follows:

       In Jones v. State, 269 Ind. 543, 548, 381 N.E.2d 1064, 1067 (1978), no
       abuse of discretion was found when the State was allowed to reopen its
       case to present evidence of the defendant’s age. The State both rested and

                                             5
       moved out of the presence of the jury to reopen its case. Our supreme court
       held “no real confusion or inconvenience [was] occasioned by the
       reopening of the [S]tate’s case.” Similarly, in Lewis v. State, 406 N.E.2d
       1226, 1231 (Ind. Ct. App. 1980), there was no abuse of discretion in
       allowing the State to reopen its case to present identification testimony
       where the State sought to reopen immediately after the close of its case-in-
       chief and where the witness to be presented in reopening was the last
       witness in its case-in-chief. The court reasoned there was therefore no
       undue emphasis on the witness’s reopening testimony. Id. at 1230.

       The identification evidence [the victim] offered after the case was reopened
       was evidence that could have been part of the State’s case-in-chief. Even
       though [the victim] was not the State’s last witness, she had been recalled
       to the stand at least once after her initial direct and cross examination in
       order to answer a juror’s question. As a result, it is not apparent that undue
       emphasis could have been placed on her return to the stand to identify
       Saunders. The trial court’s grant of the State’s motion to reopen its case
       was not an abuse of discretion.

Id.

       The State made a request to reopen the case just minutes after the State rested, and

the evidence presented when the case was reopened could have been admitted during the

State’s case in chief. Here, D.S. was not prejudiced by the additional evidence because

D.S. had the right to both cross-examine Officer Koeller and offer evidence in his own

defense.   See Gorman v. State, 463 N.E.2d 254, 257 (Ind. 1984) (no prejudice in

reopening case where witness was known to defense and defense given opportunity to

cross-examine witness and call additional witnesses in his behalf). Furthermore, because

the fact-finding hearing was before the bench, there was no real confusion or

inconvenience. A fact-finding hearing, like a trial, is not a game of technicalities, but one

in which the facts and truth are sought. Ford, 523 N.E.2d at 746. The juvenile court did

not abuse its discretion in allowing the State to reopen its case in chief.


                                              6
               II.       Voluntary Dismissal Pursuant to Trial Rule 41(B)

      D.S. next contends that the juvenile court committed reversible error by failing to

grant his motion for involuntary dismissal pursuant to Trial Rule 41(B) where the

evidence was insufficient to show beyond a reasonable doubt that D.S. knew that the

bicycles were stolen.

      Involuntary dismissal: Effect thereof. After the plaintiff or party with the
      burden of proof upon an issue, in an action tried by the court without a jury,
      has completed the presentation of his evidence thereon, the opposing party,
      without waiving his right to offer evidence in the event the motion is not
      granted, may move for a dismissal on the ground that upon the weight of
      the evidence and the law there has been shown no right to relief. The court
      as trier of the facts may then determine them and render judgment against
      the plaintiff or may decline to render any judgment until the close of all the
      evidence. . . .

Ind. Trial Rule 41(B).

      Our review of the juvenile court’s Trial Rule 41(B) decision is well-established:

             The grant or denial of a motion to dismiss made under Trial
             Rule 41(B) is reviewed under the clearly erroneous standard.
             Taflinger Farm v. Uhl, 815 N.E.2d 1015, 1017 (Ind. Ct. App.
             2004). In reviewing a motion for involuntary dismissal, this
             court will not reweigh the evidence or judge the credibility of
             the witnesses. Id. We will reverse the trial court only if the
             evidence is not conflicting and points unerringly to a
             conclusion different from the one reached by the lower court.
             Chemical Waste Mgmt. of Ind., L.L.C. v. City of New Haven,
             755 N.E.2d 624, 635 (Ind. Ct. App. 2001).

      Thornton–Tomasetti Eng’rs v. Indianapolis–Marion County Pub. Library,
      851 N.E.2d 1269, 1277 (Ind. Ct. App. 2006)). In a criminal action, “[t]he
      defendant’s [Trial Rule 41(B)] motion is essentially a test of the sufficiency
      of the State’s evidence.” Workman v. State, 716 N.E.2d 445, 448 (Ind.
      1999). Notably, our review of the denial of the motion for involuntary
      dismissal is limited to the State’s evidence presented during its case-in-
      chief. See Harco, Inc. v. Plainfield Interstate Family Dining Assocs., 758
      N.E.2d 931, 938 (Ind. Ct. App. 2001); see also Stephenson v. Frazier, 425

                                             7
       N.E.2d 73, 74 (Ind. 1981) (“Our review of the denial of the motion for
       involuntary dismissal . . . is limited to an examination of the evidence most
       favorable to [the State] which was presented prior to the filing of the
       motion.”) (quoting F.D. Borkholder Co. v. Sandock, 274 Ind. 612, 413
       N.E.2d 567, 570 n.2 (1980)), superseded on other grounds, Ind. Trial Rule
       41(B) (as amended Nov. 4, 1981).

Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009) (quoting Williams v. State, 892

N.E.2d 666, 670-671 (Ind. Ct. App. 2008) (alterations in original), trans. denied).

       The statute defining the crime of receiving stolen property provides: “A person

who knowingly or intentionally receives, retains, or disposes of the property of another

person that has been the subject of theft commits receiving stolen property, a Class D

felony.” Ind. Code § 35-43-4-2(b). “In addition to proving the explicit elements of the

crime, the State must also prove beyond a reasonable doubt that the person knew that the

property was stolen.” S.G. v. State, 956 N.E.2d 668, 681 (Ind. Ct. App. 2011) (citing

Fortson v. State, 919 N.E.2d 1136, 1139 (Ind. 2010)), trans. denied; see Ind. Code § 35-

41-2-2(d) (“Unless the statute defining the offense provides otherwise, if a kind of

culpability is required for commission of an offense, it is required with respect to every

material element of the prohibited conduct.”). “The test of knowledge is not whether a

reasonable person would have known that the property had been the subject of theft, but

whether, from the circumstances surrounding the possession, the defendant himself knew

that it had been the subject of theft.” Id. “‘[K]nowledge that property is stolen may be

inferred from the circumstances surrounding the possession.’” Id. (quoting Fortson, 919

N.E.2d at 1139).




                                             8
       D.S. is correct that “the mere unexplained possession of recently stolen property

standing alone does not automatically support a conviction for theft.” Fortson, 919

N.E.2d at 1143. “Rather, 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).” Id. “In essence, the fact of

possession and all the surrounding evidence about the possession must be assessed to

determine whether any rational juror could find the defendant guilty beyond a reasonable

doubt.” Id.

       During the fact-finding hearing, the State presented evidence that Steigmeyer and

Uland’s bicycles were stolen between 7:00 p.m. on May 17, 2012 and 7:00 a.m. on May

18, 2012. Tr. at 20. The bicycles were stolen from the 4500 block of Carrollton Avenue.

Id. at 2-3. Less than twelve hours after the bicycles were stolen, Steigmeyer saw a

bicycle, later confirmed to be his, in the backyard of a house in the 4300 block of

Carrollton Avenue (“the home”). Id. at 12, 20. The bike was found less than two blocks

from Steigmeyer’s house. Steigmeyer left the bicycle in the yard and informed the

police. Id. at 17. When Officer Koeller went to the home, the bicycle was gone. Id.

Upon further investigation, Officer Burgess found that the bicycle had been moved and

was now inside an enclosed and locked front porch of the home. Id. at 13. Police spoke

with a woman at the home who turned out to be the aunt of D.S. Id. at 18. The next day,

a man, identified in court as D.S.’s father, knocked on the victims’ door to report that the

other bicycle was also at the home. Id. at 21-22. Uland testified that D.S.’s father had no

                                             9
reason to know Steigmeyer’s address.       Id. at 22.   Steigmeyer and Uland recovered

Uland’s bicycle from the home—the same place where Steigmeyer’s bicycle had been

found. Id. at 21. When the case was reopened, and prior to D.S.’s renewed motion for

involuntary dismissal, the State introduced evidence that D.S. admitted he purchased

Steigmeyer’s bicycle for ten or twenty dollars, from a man he did not know, and who

randomly approached D.S. on the street and asked him if he wanted to buy the bicycle.

Id. at 31, 32.

       D.S. was not charged with having stolen the property; instead, he was charged

with receiving stolen property.        The State presented the following evidence:

Steigmeyer’s and Uland’s bicycles were stolen from Steigmeyer’s house; D.S. bought

Steigmeyer’s bicycle the same night it was stolen at a location close to Steigmeyer’s

house; D.S. bought the bicycle from a man on the street that he did not know and for a

relatively low price; and the bicycle, while initially outside, was placed in the locked

porch of D.S.’s home soon after Steigmeyer discovered it. This evidence was sufficient

to support the juvenile court’s conclusion that D.S. received property that he knew had

been stolen. Accordingly, the juvenile court did not commit reversible error when it

failed to grant his motion for involuntary dismissal pursuant to Trial Rule 41(B).

       Affirmed.

VAIDIK, J., and PYLE, J., concur.




                                            10
