MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Feb 19 2020, 11:08 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Stephen A. Byrd                                          Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen A. Byrd, Sr.                                     February 19, 2020
Appellant,                                               Court of Appeals Case No.
                                                         19A-CR-226
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth Hurley,
Appellee.                                                Judge
                                                         Trial Court Cause No.
                                                         71D08-1509-F1-12



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020                    Page 1 of 9
[1]   Stephen A. Byrd, Sr., appeals the denial of his motion for return of property.

      We affirm.


                                      Facts and Procedural History

[2]   The relevant facts from Byrd’s direct appeal follow:


              In early 2014, Byrd began dating Kenya Belcher, who lived in
              Mishawaka with her two children. In March, Byrd moved into
              Belcher’s home. There was no formal rental agreement between
              Byrd and Belcher, but he sometimes gave Belcher money.

              On September 14, 2015, Belcher and Byrd “broke up” and she
              told him that she did not want him to live in her house anymore.
              Tr. Vol. III at 20. In the ensuing days, Byrd asked Belcher
              whether he could come back to her house, and she told him “no
              each time.” Id. at 23. Belcher then asked her stepmother, Cheryl
              Ashe, to come and stay with her at Belcher’s house, and she did.
              Belcher and Ashe changed the locks to the doors on the house.

              On September 17, Belcher arrived home with her children at
              about 7:00 p.m., and she started preparing dinner when she
              smelled cigarette smoke coming from the basement. Belcher
              went downstairs to investigate, and when she reached the bottom
              of the stairs and went through a door to the basement, someone
              struck her in the head. She fell down, and Belcher saw Byrd
              standing over her. Byrd began stabbing her with a knife. Belcher
              yelled for help. After Byrd had stabbed her multiple times,
              Belcher was able to get up, and she ran up the stairs, where she
              found Ashe and her children near the top of the basement stairs.
              Belcher kept running and ran out of the house and into the street,
              and Byrd followed her outside, but he ran in the opposite
              direction. Belcher eventually made her way back to her house
              and waited for emergency medical technicians to arrive. After
              Belcher was transported to a local hospital, she underwent a



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020   Page 2 of 9
         diagnostic scan of her head, and she received stitches, staples,
         and glue to repair the multiple stab wounds.

         A few days later, police officers apprehended Byrd after a foot
         chase. Byrd agreed to give a statement, and he signed a Miranda
         waiver form. Byrd explained that Belcher had attacked him, and
         he offered to show the interviewing police officer text messages
         to support his story. Accordingly, the officer gave Byrd an
         additional waiver authorizing “a complete search” of his phone,
         and Byrd signed the waiver. State’s Ex. 50. The officer then
         asked Byrd whether Byrd would let him give the phone to a
         forensics specialist to search the phone for communications with
         Belcher, and Byrd agreed. Byrd gave the passcode to his locked
         phone to the officer. The forensics specialist found multiple text
         messages between Byrd and Belcher, and he also found several
         video recordings Byrd had made during the late afternoon of
         September 17, 2015, depicting Byrd inside Belcher’s house saying
         things like: “She tried to outsmart me, she tried to lock me out of
         the house”; “I’m faced with a bad decision, it’s a decision that I
         have no choice but to make . . . [and] by the time you see this, I
         will be dead”; “If you play with somebody, if you play with their
         emotions, you can die.” State’s Ex. 64.

         The State charged Byrd with attempted murder, a Level 1 felony,
         and two counts of burglary, one as a Level 1 felony and one as a
         Level 2 felony. Byrd filed a motion to suppress evidence,
         namely, the video recordings found on his cell phone. The trial
         court denied that motion following a hearing. A jury found Byrd
         guilty as charged. The trial court entered judgment of conviction
         only for attempted murder, a Level 1 felony, and burglary, as a
         Level 1 felony, and sentenced Byrd to an aggregate term of
         seventy years executed.


Byrd v. State, No. 71A05-1710-CR-2288, slip op. at 2-4 (Ind. Ct. App. July 20,

2018).



Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020   Page 3 of 9
[3]   On direct appeal, Byrd argued the trial court abused its discretion when it

      admitted certain evidence, the evidence was insufficient, and his convictions

      violated double jeopardy. Id. at 2. This Court affirmed. Id.


[4]   On July 30, 2018, Byrd, pro se, filed a Verified Motion for Return of Property

      and requested the release of his cell phone to the custody of his mother. He

      asserted the matter was resolved by conviction after trial and the phone was no

      longer necessary as evidence of any crime. On September 25, 2018, the State

      filed an objection to Byrd’s motion asserting it had reason to believe the phone

      was purchased by the victim and she had a property interest in the phone.


[5]   On December 10, 2018, the court held a hearing on Byrd’s motion. Byrd stated

      the State’s position had been that the phone was his property. He

      acknowledged the phone was purchased in 2015 in an account managed only

      by Belcher and asserted the phone was in his possession for the entire time since

      its purchase and was on his person when he was arrested. He referenced a

      “forth coming PCR,” stated he had a strong reason to believe that the phone

      contained exculpatory evidence, and asserted it contained pictures of his

      children and other data of sentimental value. Transcript Volume II at 4. The

      prosecutor argued that, although the phone was in Byrd’s possession, Belcher

      was the rightful owner because she purchased it and the account was in her

      name.


[6]   On direct examination by Byrd, Belcher indicated some of Byrd’s paychecks

      were deposited into her checking account managed only by her but “[o]nly the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020   Page 4 of 9
      times [he was] working” “[a]nd sometimes when [he was] working they weren’t

      always deposited into [her] account.” Id. at 11. She indicated the phone bill

      was not paid off until some time in 2016 and the incident occurred in

      September of 2015. When asked if she considered the phone to be hers, she

      answered affirmatively. On cross-examination, she indicated that she

      purchased the phone in October 2014 along with phones for herself and her

      mother, she and her mother made payments on the account, and she and Byrd

      “did not have a joint account at all.” Id. at 16. When the prosecutor asked if

      there was any account in which she and Byrd deposited money, she answered:


              The times when his money was deposited into my account is
              when he owed me money. So he would owe me money. When I
              get this job, I will direct deposit my check in your account
              because he switched jobs. So it would be on and off. And it
              wouldn’t be a big amount.


      Id. at 17. When asked the type of things for which Byrd owed her money, she

      stated: “Buy his kids clothes, let him use money, buying his truck, etcetera. I

      mean it’s so many things.” Id. She clarified that the money Byrd deposited

      into the account was reimbursement for expenses or items purchased outside of

      the typical monthly expenses. She also indicated that she suspended service for

      the phone but still had to make the payments on it until 2016 and Byrd did not

      deposit any money into her account after the time of his arrest. On redirect

      examination, Belcher indicated that when she purchased the three phones in

      October 2014 one was purchased for Byrd.


[7]   The court stated:
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020   Page 5 of 9
        The fact is we have testimony. We have a receipt. We have
        testimony that is the receipt from the purchase of the three
        phones. There is testimony that the phone was paid for out of an
        account owned by Mr. [sic] Belcher. The testimony is that at
        times you deposited money into that account, but that the phone
        continued to get paid off from the time of your arrest in this
        manner until all the way until 2016.

        So while there may have been some of your funds that, I guess,
        by virtue of the fact that they were commingled in that account
        on various occasions could have been used to pay part of that fee,
        the monthly payment fee. The fact of the matter remains that
        even if we just look at from the date of your arrest until when the
        phone was paid off in 2016 Ms. Belcher clearly paid the bulk of
        that phone.

        And therefore I would agree with the state’s position based upon
        all of the evidence in front of me that the phone should not be
        returned to you as your property. I also think it’s difficult at this
        point to say that it should be returned to anybody because we’re
        in a situation where the case is still sort of to a certain extent
        ongoing if you are going to be filing post conviction relief – a post
        conviction relief petition.

        And so I think everything as long as the case is still sort of active
        in that regard evidence should stay where it is and not be
        returned – you know, not be removed from where it resides in
        evidence at this time. So sort of for those dual reasons I would
        not be inclined to release the phone to your mother. And your
        mother especially is not a person whom the phone – I mean she
        has no ownership interest in the phone at all. And so I’m . . .
        going to deny the request to release the phone after seeing the
        evidence and hearing the testimony.


Id. at 23-24.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020   Page 6 of 9
[8]    On December 12, 2018, the court entered an order denying Byrd’s motion. On

       May 20, 2019, he filed a petition for post-conviction relief under cause number

       71D08-1905-PC-15, which is still pending.


                                                    Discussion

[9]    Before addressing Byrd’s argument, we observe that although he is proceeding

       pro se, such litigants are held to the same standards as trained attorneys and are

       afforded no inherent leniency simply by virtue of being self-represented. See

       Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Byrd argues the phone was

       not reported stolen by Belcher and the State previously mentioned on several

       occasions that the phone belonged to him.


[10]   The State argues Byrd did not meet his burden to prove he is the rightful owner

       of the phone and Ind. Code § 35-33-5-5 does not require the return of property

       to a person who is not the owner. It also contends that, to the extent Byrd

       asserts it should be estopped from challenging his ownership of the phone

       because it previously relied on his consent to justify a search of the phone, the

       Fourth Amendment analysis is not a question of rightful ownership and a

       person has actual authority to consent to a search of property within their

       access or control.


[11]   A person seeking the return of property seized by the State during an

       investigation must prove by a preponderance of the evidence that he or she is

       the rightful owner of the property. Roy v. State, 81 N.E.3d 641, 643 (Ind. Ct.

       App. 2017) (citing Tracy v. State, 655 N.E.2d 1232, 1236 (Ind. Ct. App. 1995),


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020   Page 7 of 9
       reh’g denied, trans. denied). 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. Id.


[12]   Ind. Code § 35-33-5-5 provides in part:


               (c) Following the final disposition of the cause at trial level or
               any other final disposition the following shall be done:

                        (1) 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. After ninety (90) days from the
                        time:

                                (A) the rightful owner has been notified to take
                                possession of the property; or

                                (B) a reasonable effort has been made to ascertain
                                ownership of the property;

                        the law enforcement agency holding the property shall, at
                        a convenient time, dispose of this property at a public
                        auction. The proceeds of this property shall be paid into
                        the county general fund.

                                                     *****

               (d) If any property described in subsection (c) was admitted into
               evidence in the cause, the property shall be disposed of in
               accordance with an order of the court trying the cause.

                                                     *****

               (f) For purposes of preserving the record of any conviction on
               appeal, a photograph demonstrating the nature of the property,
               and an adequate description of the property must be obtained
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020   Page 8 of 9
               before the disposition of the property. In the event of a retrial,
               the photograph and description of the property shall be
               admissible into evidence in place of the actual physical evidence.
               All other rules of law governing the admissibility of evidence
               shall apply to the photographs.


[13]   The record reveals that Byrd acknowledged the phone was purchased from an

       account managed only by Belcher. Belcher testified the deposits Byrd made

       into her account occurred only when he was working, the money he deposited

       into her account was reimbursement for expenses or items purchased outside

       the typical monthly expenses, Byrd did not deposit any money into her account

       after the time of his arrest, and the phone was not paid off until some time in

       2016 after the incident occurred in September 2015. She indicated that she

       considered the phone to be her phone. Based upon the record, we cannot say

       that Byrd proved by a preponderance of the evidence that he or his mother is

       the rightful owner of the phone. We cannot say the trial court’s decision

       denying his motion is clearly erroneous.


[14]   For the foregoing reasons, we affirm the trial court’s order.


[15]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020   Page 9 of 9
