      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
