MEMORANDUM DECISION                                                           FILED
                                                                         Mar 28 2017, 10:37 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                              CLERK
this Memorandum Decision shall not be                                     Indiana Supreme Court
                                                                             Court of Appeals
regarded as precedent or cited before any                                      and Tax Court

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
Suzy St. John                                          Curtis T. Hill, Jr.
Marion County Public Defender                          Attorney General of Indiana
Indianapolis, Indiana
                                                       Jesse R. Drum
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cathy Byrd,                                            March 28, 2017
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       49A05-1610-CR-2358
        v.                                             Appeal from the Marion Superior
                                                       Court
State of Indiana,                                      The Honorable Steven J. Rubick,
Appellee-Plaintiff.                                    Magistrate
                                                       Trial Court Cause No.
                                                       49G19-1511-CM-40815



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2358 | March 28, 2017             Page 1 of 7
                                      Statement of the Case
[1]   Cathy Byrd appeals her conviction, following a bench trial, for criminal

      mischief, as a Class A misdemeanor. She raises one issue on appeal, namely,

      whether the State presented sufficient evidence to support her conviction. We

      affirm.


                                 Facts and Procedural History
[2]   Byrd was married to Warren Morphis. After they divorced, they remained

      friendly. Morphis then began dating Thelma Thomas. Byrd knew that

      Morphis was dating Thomas because Byrd used to attend the same church as

      Thomas. Byrd had had one argument with Thomas in early 2014 after Thomas

      and Morphis began dating.


[3]   At around 8:00 p.m. on June 9, 2015, Thomas parked her red 2006 Chevrolet

      Cobalt in Morphis’ driveway. There was nothing wrong with Thomas’ car

      when she arrived. Morphis let Thomas into his house by the front door, but he

      did not inspect Thomas’ car at that time.


[4]   Morphis did not see anyone else enter his driveway prior to around midnight,

      when Byrd parked her car in the driveway next to Thomas’ car. Byrd went to

      the window of the computer room of Morphis’ house, and she saw Morphis on

      the computer. The window of the computer room faces the driveway. Byrd

      knocked on the window to get Morphis’ attention. At that time, Thomas was

      asleep in the bedroom. Byrd and Morphis spoke through the window about

      text messages Byrd claimed Morphis sent her, and Byrd began to argue with

      Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2358 | March 28, 2017   Page 2 of 7
      Morphis. Byrd yelled for the “b----” and the “whore” to come outside. Tr. at 5-

      6, 17, 19, 26. Byrd then removed the screen from Morphis’ window and tried

      to climb inside, but she could not fit through the window. Morphis told Byrd

      he was calling the police and went to the kitchen to retrieve his phone.


[5]   The driver’s side of Thomas’ car faced the area of the house where Byrd had

      been standing at the window of the computer room. When Morphis returned

      to the window, he saw Byrd standing between her car and Thomas’ car.

      Morphis then saw Byrd get into her own car and drive away. Thomas, who

      had awoken when she heard Byrd yelling, also saw Byrd drive away. After

      Byrd left, Morphis went outside with a flashlight and noticed that Thomas’ car

      had scratches on the trunk and the rear door on the driver’s side of the car. The

      police arrived and took photographs of the damage to Thomas’ car. Thomas

      subsequently took her car to Blossom Chevrolet, where it cost approximately

      $1200 to have the car repaired. Of that amount, Thomas paid a $250 insurance

      deductible and the remainder was covered by her insurance. Later, Morphis

      asked Byrd, in reference to the scratches on Thomas’ car, “‘[W]hy did you do

      that.’ And she said, ‘I don’t know.’” Tr. at 24.


[6]   The State charged Byrd with criminal mischief, as a Class A misdemeanor.

      Following the close of the State’s case at an August 8, 2016, bench trial, Byrd

      moved for a directed verdict, which the trial court denied. Byrd then testified.

      The trial court found Byrd guilty as charged and sentenced her to two days in

      jail, time served, and ordered her to pay $250 in restitution to Thomas. This

      appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2358 | March 28, 2017   Page 3 of 7
                                    Discussion and Decision
[7]   Byrd contends that the State failed to provide sufficient evidence to support her

      conviction. Because she appeals a judgment entered by the trial court without a

      jury, we employ a clearly erroneous standard of review and give “due regard

      . . . to the opportunity of the trial court to judge the credibility of the witnesses.”

      Ind. Trial Rule 52(A).


              Under th[e clearly erroneous] standard we review only for
              sufficiency of the evidence. State v. Oney, 993 N.E.2d 157, 161
              (Ind. 2013). “We neither reweigh the evidence nor determine the
              credibility of witnesses.” Id. “We consider only the probative
              evidence and reasonable inferences supporting the judgment and
              reverse only on a showing of clear error.” Id. Clear error is “that
              which leaves us with a definite and firm conviction that a mistake
              has been made.” Id. (citation omitted).


      Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016).


[8]   To prove Byrd engaged in criminal mischief, as a Class A misdemeanor, the

      State was required to prove beyond a reasonable doubt that: (1) Byrd (2)

      recklessly, knowingly, or intentionally (3) damaged or defaced (4) Thomas’ car

      (5) without Thomas’ consent, (6) causing (7) a pecuniary loss of at least seven

      hundred fifty dollars but less than fifty thousand dollars. Ind. Code § 35-43-1-

      2(a)(1) (2015). On appeal, Byrd challenges the sufficiency of the evidence with

      respect to two of these elements, namely, whether she was the person who

      damaged Thomas’ car and whether Thomas suffered a pecuniary loss of at least

      $750. We address each contention in turn.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2358 | March 28, 2017   Page 4 of 7
[9]    Although no witness actually observed Byrd scratch Thomas’ car, there was

       ample circumstantial evidence from which it was reasonable to infer that Byrd

       was the person who caused the damage to the car. “A verdict may be sustained

       based on circumstantial evidence alone if that circumstantial evidence supports

       a reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000)

       (citation omitted). And although presence at the crime scene alone cannot

       sustain a conviction, “presence at the scene in connection with other

       circumstances tending to show participation, such as companionship with the

       one engaged in the crime, and the course of conduct of the defendant before,

       during, and after the offense, may raise a reasonable inference of guilt.” Willis

       v. State, 27 N.E.3d 1065, 1068 (Ind. 2015).


[10]   Here, the evidence most favorable to the judgment shows that: Byrd had had a

       confrontation with Thomas once in the past; Thomas’ car was not scratched

       when she parked it in Morphis’ driveway at 8:00 p.m. on June 9, 2015; no one

       was seen entering Morphis’ driveway between 8:00 p.m. until around midnight,

       when Morphis saw Byrd park next to Thomas’ car in Morphis’ driveway; Byrd

       went to the window of Morphis’ computer room, which faced the driveway,

       and spoke with Morphis; Byrd became agitated, called Thomas a “b----” and a

       “whore,” and yelled for Thomas to come outside; Byrd removed Morphis’

       window screen in an attempt to enter his home uninvited; Morphis told Byrd to

       leave or he would call the police; Morphis left the computer room to retrieve his

       phone from the kitchen; the driver’s side of Thomas’ car faced the area of the

       house where Byrd had been standing at the window of the computer room;


       Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2358 | March 28, 2017   Page 5 of 7
       when Morphis returned to the computer room, he saw Byrd standing in

       between her car and Thomas’ car; after Byrd left, Morphis saw that Thomas’

       car was scratched on the driver’s side and the trunk; and when Morphis later

       asked Byrd, “why did you do that” in reference to Thomas’ scratched car, Bryd

       answered, “I don’t know.” Tr. at 24. That was sufficient evidence from which

       the trial court could reasonably infer that Byrd scratched Thomas’ car. Byrd’s

       contentions to the contrary are simply requests that we reweigh the evidence

       and determine the credibility of the witnesses, which we will not do. Hitch, 51

       N.E.3d at 226.


[11]   Byrd also asserts that the State presented insufficient evidence that the amount

       of the damage to Thomas’ car was at least $750 but less than $50,000. Again,

       we cannot agree. Thomas testified that she had her car repaired and that the

       cost of the repairs was “about twelve hundred, thirteen hundred dollars.” Tr. at

       11. Byrd presented no contrary evidence. It was within the trial court’s

       discretion to credit Thomas’ testimony, and that testimony was sufficient

       evidence that the amount of the damage to Thomas’ car was at least $750. See,

       e.g., Womack v. State, 738 N.E.2d 320, 325 (Ind. Ct. App. 2000) (finding

       sufficient evidence that damage exceeded statutory threshold where victim and

       another witness testified to that fact and defendant provided no evidence to the

       contrary), trans. denied. And once it is established that the amount of damage is

       over the statutory threshold, “the exact amount is irrelevant in completing that

       element of the crime.” Mitchell v. State, 559 N.E.2d 313, 314 (Ind. Ct. App.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2358 | March 28, 2017   Page 6 of 7
       1990), trans. denied. The State presented sufficient evidence to support Byrd’s

       conviction.


[12]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1610-CR-2358 | March 28, 2017   Page 7 of 7
