 Pursuant to Ind. Appellate Rule 65(D), this

                                                              FILED
 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                    Feb 05 2013, 9:54 am
 estoppel, or the law of the case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court



ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

JANE H. CONLEY                                      GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    CHANDRA K. HEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

JOSHUA W. JOYNER,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A02-1208-CR-618
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                        APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable James B. Osborn, Judge
                                Cause No. 49F15-1201-FD-4869



                                         February 5, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                        Case Summary

       Joshua Joyner sold several items to a scrap yard that were later determined to have

been stolen. Joyner was charged with theft. At trial, Joyner presented evidence that he was

at home with his former girlfriend during the time that the items were taken from their owner.

Joyner was found guilty as charged, and he now appeals.

       Joyner argues that there was insufficient evidence that he knew that the items were

stolen and that the trial court abused its discretion by rejecting an instruction that he proffered

concerning his alibi defense. We conclude that there was sufficient circumstantial evidence

that Joyner knew that the items were stolen, including testimony that he fled from the police.

Joyner’s alibi evidence, if believed, would demonstrate that he was not involved in the initial

theft of the items; however, he could still be guilty of theft if he knew that the items were

stolen. Joyner’s proffered instruction, as worded, could have led the jury to believe that he

had to be involved in the initial theft to be found guilty. Therefore, we conclude that the trial

court did not abuse its discretion by declining to give the instruction, and we affirm Joyner’s

conviction.

                                Facts and Procedural History

       Nancy House lives with her father, Leonard Witt, in Indianapolis. On the morning of

January 21, 2012, House was at the kitchen window when she noticed that a motor that Witt

had been working on was not in its usual place in front of the garage. House and Witt went

outside and discovered that the motor and several other items, including a steam table, a

trailer, a wheelbarrow, and a 1959 Cushman scooter, were missing.


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       House spoke to a neighbor, Mary Ann Davis, who indicated that she had gotten up

around 5:30 a.m. to let her dog out and had seen two men wearing hoodies loading items into

a blue truck. Davis had not been concerned because she thought that they were having the

stuff hauled away.

       House called the police and suggested to Witt that they check scrap yards for the

missing items. House and Witt went to Westside Auto Parts (“Westside”), where employees

indicated that they had received some items fitting the description of the missing items. Witt

was taken into the yard, where he was able to identify the scooter, motor, steam table top, and

wheelbarrow. House looked at security footage and photographs and was able to identify the

missing items loaded in a blue truck.

       As House was doing this, the same blue truck pulled into Westside, but then backed

out and drove away. Witness testimony varied as to whether the police had already arrived at

Westside by this time and whether the truck appeared to be fleeing from the police.

       Officer Monica Hodge followed the truck, which stopped when she activated her

lights. Officer Hodge determined that the truck was registered to Joyner and that he was the

person driving. Amanda Prochaska was in the back seat, and a man identified only as a

friend of Joyner’s was sitting in the front passenger seat. Officer Erik Stevenson stayed with

the truck while Officer Hodge returned to Westside, where she spoke to employees Danny

Abner and Lydia Brown, as well as House and Witt. Abner and Brown indicated that Joyner

was a regular customer and had brought a load in earlier that day. They were able to supply

photographs of the transaction, a copy of Joyner’s driver’s license, and a receipt. Officer


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Hodge brought Abner to the blue truck, and he identified Joyner.

       Officer Stevenson read Joyner his Miranda rights and asked him whether he had

salvaged a scooter. Joyner said that he did not know anything about a scooter. Officer

Stevenson then asked Joyner why “the scrap yard had his photo I.D. of him scrapping the

scooter.” Tr. at 139. Joyner then admitted to scrapping the scooter, but did not admit

knowing that it had been stolen. Joyner claimed that a man named Charlie gave it to him, but

he provided no further information about Charlie.

       Joyner was arrested and charged with class D felony theft. On April 12, 2012, Joyner

filed a notice of alibi, which alleged that he was at home with Prochaska, his former

girlfriend, at the time of the theft.

       A jury trial was conducted on June 20, 2012. Witt, House, Davis, Abner, Brown,

Officer Hodge, and Officer Stevenson testified to the foregoing facts. Brown and Officer

Hodge testified that Joyner had already started to drive away when the police arrived at

Westside, but House and Abner testified that the police were already there when Joyner

arrived, and Abner specifically indicated that Joyner appeared to be fleeing the police.

       Joyner testified in his own defense and also presented testimony of Prochaska.

Prochaska testified that she had called Joyner on January 20, 2012, and offered to clean his

house if he would help her purchase some items for her baby. Joyner picked up Prochaska

and her baby and brought them to his house. Prochaska cleaned his house and stayed

overnight. Prochaska and the baby slept in the bedroom, and Joyner slept on the couch.

Prochaska got up at about 3:00 a.m. to give her baby a bottle, and Joyner was asleep on the


                                             4
couch at that time. Joyner was at home when Prochaska woke up around 9:00 a.m.

Prochaska did not think that Joyner could have left during the night, because the dogs would

have barked and she would have heard it. She did hear the truck leave during the night and

return in the morning. She saw a man walking away from the truck, and there were items in

the truck bed that had not been there before.

       Joyner testified that he lent his truck to a neighbor – apparently the person he referred

to as “Charlie” – the evening of January 20. When the neighbor returned the truck, Joyner

did not ask about the items in the truck bed. Joyner stated that he trusted his neighbor and

that his neighbor had previously given him metal to scrap. Joyner testified that he sells scrap

metal for a living and that he would typically go to Westside two or three times a day. Joyner

loaded some additional items into his truck, and then he, Prochaska, and the baby drove to

Westside. Joyner dropped off the load, received payment, and then drove back to his house.

       Joyner then started loading his truck again. He asked a friend to help him load some

heavy items onto the truck. Joyner, his friend, Prochaska, and the baby then returned to

Westside. Joyner testified that after he had checked in, his friend reminded him “that he’s

not allowed in there because he got in a previous fight,” so he backed out. Id. at 181. Joyner

stated that the police were not present at that time, and that he left to drive his friend to a

cousin’s house. Prochaska also testified that they left Westside to drop off the friend.

       Joyner testified that he told Officer Stevenson that he did not steal the scooter but did

acknowledge that he had sold it for scrap. Joyner stated that he told Officer Stevenson that

Charlie had given it to him. Joyner claimed that he did not know Charlie’s last name, phone


                                                5
number, or address, and that he did not help the police find Charlie because he is “not a

snitch.” Id. at 193.

       After the close of evidence, the parties discussed final instructions. Joyner tendered

an instruction on his alibi defense, which the trial court rejected. Joyner was ultimately

found guilty as charged, and he now appeals.

                                  Discussion and Decision

       Joyner raises two issues: (1) whether there was sufficient evidence that he knew that

the items he sold to Westside were stolen; and (2) whether the trial court abused its discretion

by declining to give Joyner’s proffered alibi instruction.

                                 I. Sufficiency of Evidence

       Our standard of review for a sufficiency of the evidence claim is well settled:

       When reviewing the sufficiency of evidence supporting a conviction, we will
       not reweigh the evidence or judge the credibility of witnesses. We must look
       to the evidence most favorable to the conviction together with all reasonable
       inferences to be drawn from that evidence. We will affirm a conviction if
       there is substantial evidence of probative value supporting each element of the
       crime from which a reasonable trier of fact could have found the defendant
       guilty beyond a reasonable doubt.

Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct. App. 2007) (citations omitted).

       “A person who knowingly or intentionally exerts unauthorized control over property

of another person, with intent to deprive the other person of any part of its value or use,

commits theft, a Class D felony.” Ind. Code § 35-43-4-2(a). Joyner argues that there is

insufficient evidence that he knew that the items he sold to Westside were stolen. “A person




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engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

probability that he is doing so.” Ind. Code § 35-41-2-2(b).

       The State argues that Joyner admitted that he stole Witt’s property. The page of the

transcript cited by the State does not support this contention. Joyner admitted that he sold the

scooter as scrap metal; he consistently denied knowing that it or the other items at issue were

stolen. We admonish the State to refrain from mischaracterizing the record.

       At trial, the State presented two theories. First, the State suggested that Joyner was

directly involved in the theft. In support, the State pointed to the fact that Davis testified that

she saw two men in hoodies loading up a blue truck, that a photograph of the transaction at

Westside shows Joyner wearing a hoodie, and that Joyner used a blue truck to transport the

items to Westside. Second, the State argued that even if Joyner was not one of the men

directly involved in the theft, he nevertheless knew that the items were stolen, as evidenced

by his flight from the police. See Maxey v. State, 730 N.E.2d 158, 162 (Ind. 2000) (flight is

circumstantial evidence of the defendant’s knowledge of guilt). While the evidence is

conflicting regarding whether Joyner fled from the police, at least one witness

unambiguously testified that Joyner left Westside after noticing that the police were there,

and we must consider the evidence favorable to the verdict. As additional circumstantial

evidence that Joyner knew that he was involved in criminal activity, the State noted that

Joyner did not provide any details about the man who supposedly gave him the items to

scrap. In sum, there was evidence to support the State’s theories, and a reasonable jury could




                                                7
have believed that Joyner knew that the items were stolen; therefore, we conclude that there

was sufficient evidence to support the conviction.

                                    II. Jury Instruction

       Joyner argues that the trial court abused its discretion by rejecting his proffered

instruction on his alibi defense. “The manner of instructing a jury lies largely within the

sound discretion of the trial court, and we review the trial court’s decision only for an abuse

of that discretion.” Boney v. State, 880 N.E.2d 279, 293 (Ind. Ct. App. 2008), trans. denied.

       In reviewing a challenge to a jury instruction, we consider: (1) whether the
       instruction is a correct statement of the law; (2) whether there was evidence in
       the record to support giving the instruction; and (3) whether the substance of
       the instruction is covered by other instructions given by the court.

Id.

       A defendant is entitled to have the jury instructed correctly on an essential rule
       of law. However, before a defendant is entitled to a reversal, he must
       affirmatively demonstrate that the instructional error prejudiced his substantial
       rights. Jury instructions are to be considered as a whole, and we will not find
       that the trial court abused its discretion unless we determine that the
       instructions taken as a whole misstate the law or otherwise mislead the jury.

Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (citations omitted), trans. denied

(2006).

       Joyner proffered the following pattern jury instruction:

              You have heard evidence that at the time of the crime charged the
       accused was at a different place so remote or distant or that such circumstances
       existed that he could not have committed the crime. The State must prove
       beyond a reasonable doubt the accused’s presence at the time and place of the
       crime.

Appellant’s App. at 68.


                                               8
       The State argued that the instruction would be misleading to the jury. As discussed

above, the State presented two theories: either Joyner was involved in taking the items from

Witt, or he somehow knew that the items had been stolen, as evidenced by his behavior.

Joyner’s alibi was relevant to the first theory, but not the second. The State argued that

Joyner’s proffered instruction could lead the jury to believe that Joyner could only be found

guilty if he were personally involved in taking the items from Witt. The trial court agreed

with the State: “Well, I don’t think there’s an objection that it’s not the correct statement of

law in a broader sense. But because we’re talking about a crime that occurred over a period

of time – and not just one instance in one spot – it makes it problematic to give the

instruction.” Tr. at 203.

       We also agree with this reasoning. Joyner’s proffered instruction, as written, suggests

that if Joyner’s alibi evidence is believed, then he could not have committed the crime. We

note that the trial court gave Joyner time to produce an amended instruction that would avoid

this problem, but Joyner did not submit a reworded instruction. The essence of the

instruction is that the State must prove every element of the offense beyond a reasonable

doubt, and that idea was conveyed to the jury by other instructions that did not carry the same

potential for confusion as Joyner’s proffered instruction. Appellant’s App. at 52, 56, 72.

Therefore, we conclude that the trial court did not abuse its discretion by rejecting Joyner’s

proffered instruction.

       Affirmed.

KIRSCH, J., and MATHIAS, J. concur.


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