                                                                      FILED
                                                                 Nov 04 2016, 8:29 am

OPINION                                                               CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Corey L. Scott                                            Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mickel Thacker,                                           November 4, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1510-CR-1563
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Annie Christ-
Appellee-Plaintiff.                                       Garcia, Judge
                                                          Trial Court Cause No.
                                                          49G24-1504-F6-13631



May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1510-CR-1563 | November 4, 2016               Page 1 of 7
[1]   Mickel Thacker challenges the sufficiency of evidence supporting his conviction

      of Level 6 felony auto theft 1 and Class A misdemeanor resisting law

      enforcement. 2 We affirm.



                                Facts and Procedural History
[2]   On April 9, 2015, Kelly Poyck reported her silver 2002 Chevrolet Prism stolen.

      On April 15, 2015, Jeanne Kistler, an acquaintance of Poyck, saw the vehicle in

      a bank parking lot and called 9-1-1. Kistler reported two African-American

      males were in the front seat of the vehicle. Indianapolis Metropolitan Police

      Department (“IMPD”) officers were dispatched regarding a possible stolen

      vehicle. IMPD Officer Aaron Helton responded and spotted a vehicle

      matching the description of the stolen vehicle with two African-American males

      sitting in the front seat.


[3]   Officer Helton approached the vehicle with his emergency lights on and briefly

      activated his siren. The occupants were exiting the vehicle as Officer Helton

      approached it. Officer Helton drew his weapon and loudly ordered them to

      stop. One of the occupants ran from the scene. The other occupant, Thacker,

      walked toward the bank. Officer Helton initially pursued Thacker’s

      companion, but when he was approximately thirty feet from Thacker, Officer




      1
          Ind. Code § 35-43-4-2.5(b)(1) (2014).
      2
          Ind. Code § 35-44.1-3-1(a)(3) (2014).


      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1563 | November 4, 2016   Page 2 of 7
      Helton spotted Thacker near the bank entrance. At that point, Thacker

      complied with Officer Helton’s command to stop. Officer Helton arrested

      Thacker.


[4]   The State charged Thacker with Level 6 felony auto theft and Class A

      misdemeanor resisting law enforcement. After a bench trial, the court found

      Thacker guilty of both charges.



                                 Discussion and Decision
[5]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference may reasonably be drawn from it to support the verdict. Id. at

      147.




      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1563 | November 4, 2016   Page 3 of 7
                                                   Auto Theft

[6]   To prove Level 6 felony auto theft, the State must prove Thacker “knowingly or

      intentionally exert[ed] unauthorized control over the motor vehicle of another

      person, with intent to deprive the owner of [] the vehicle’s value or use.” Ind.

      Code § 35-43-4-2.5(b)(1) (2014). The unexplained possession of stolen property

      may be sufficient to support a conviction of theft, Hughes v. State, 446 N.E.2d

      1017, 1020 (Ind. Ct. App. 1983), but the inference is permitted only where the

      property was “recently stolen.” Gibson v. State, 533 N.E.2d 187, 188-89 (Ind.

      Ct. App. 1989). If a defendant is found to be in possession of stolen property

      that was not recently stolen and if exclusive possession is not proven, “this

      court may also consider additional evidence tending to support the defendant’s

      conviction.” Shelby v. State, 875 N.E.2d 381, 385 (Ind. Ct. App. 2007), trans.

      denied. For example, in Gibson, we determined that unexplained possession of a

      car two days after it was stolen was insufficient to sustain a conviction for auto

      theft but affirmed the conviction due to Gibson’s possession of a screwdriver

      used to start the car. 533 N.E.2d at 190.


[7]   Poyck testified her vehicle was stolen, and Officer Helton saw Thacker in the

      driver’s seat of Poyck’s vehicle. This evidence permits a reasonable inference

      Thacker was in possession of Poyck’s stolen vehicle. See Trotter v. State, 838

      N.E.2d 553, 557 (Ind. Ct. App. 2005) (defendant’s arrest while driving the

      stolen vehicle permits inference of possession).


[8]   Thacker notes the six-day delay between the date Poyck’s car was stolen and

      when he was found in possession of it. We agree with Thacker that his
      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1563 | November 4, 2016   Page 4 of 7
       possession of Poyck’s vehicle six days after it was stolen is not enough to prove

       auto theft, see Gibson, 533 N.E.2d at 189, and the State was required to present

       additional evidence “to support an inference that Thacker had knowledge that

       the car had been stolen.” (Appellant’s Br. at 9.)


[9]    Poyck testified the only damage to the car prior to it being stolen was a dent in

       the back. (Tr. at 11; Ex. 1.) After the theft, however, the passenger window of

       the car had been “busted out,” the passenger side door was damaged, and the

       gas cap was “ripped off.” (Tr. at 11.) The State introduced evidence of what

       appeared to be pry marks around the seal of the front passenger window. (Ex.

       6.) Poyck assumed the gas cap was ripped off because “[the thieves] couldn’t

       find the lever.” (Tr. at 11.) Thacker asserts this damage did not amount to

       “obvious signs of theft,” (Appellant’s Br. at 9); however, Thacker and his

       companion also attempted to flee when police arrived. The damage together

       with the flight permitted the factfinder to infer Thacker knew he was exerting

       unauthorized control over someone else’s vehicle. See Williamson v. State, 436

       N.E.2d 90, 94 (Ind. 1982) (evidence of flight “tend[s] to show guilt or

       knowledge of guilt”).


                                         Resisting Law Enforcement

[10]   To prove Class A misdemeanor resisting law enforcement, the State must prove

       Thacker “knowingly or intentionally [] fle[d] from a law enforcement officer

       after the officer ha[d], by visible or audible means, including operation of the

       law enforcement officer’s siren or emergency lights, identified himself or herself

       and ordered the person to stop.” Ind. Code § 35-44.1-3-1(a)(3) (2014). Thacker
       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1563 | November 4, 2016   Page 5 of 7
       claims he did not actually flee from Officer Helton as he did not hear Officer

       Helton tell him to stop. Thacker’s claim is a request to reweigh the evidence,

       which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court will not

       reweigh the evidence on appeal).


[11]   Officer Helton, in his marked police car with the emergency lights activated and

       “a couple whelps” of his siren, approached Thacker as Thacker and his

       acquaintance were exiting Poyck’s vehicle. (Tr. at 32.) Officer Helton “jumped

       out of [his] vehicle with [his] gun drawn.” (Id. at 33.) When he was “15 to 20

       feet away,” Officer Helton told Thacker and his acquaintance to stop. (Id. at

       40.) Officer Helton demonstrated in court how loud he yelled “Stop police

       [sic],” (id. at 49), at the two men exiting the stolen vehicle. This was sufficient

       evidence from which the factfinder could conclude Thacker knowingly fled

       from Officer Helton after Officer Helton ordered Thacker to stop. See Fowler v.

       State, 878 N.E.2d 889, 895 (Ind. Ct. App. 2008) (resisting law enforcement

       conviction upheld when visible and audible orders to not flee were ignored by

       defendant).



                                                Conclusion
[12]   As the evidence was sufficient to prove Thacker knowingly or intentionally

       exerted unauthorized control over a stolen vehicle and resisted law

       enforcement, we affirm.


[13]   Affirmed.


       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1563 | November 4, 2016   Page 6 of 7
Kirsch, J., and Crone, J., concur.




Court of Appeals of Indiana | Opinion 49A02-1510-CR-1563 | November 4, 2016   Page 7 of 7
