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).
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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.
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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
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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
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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.
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Kirsch, J., and Crone, J., concur.
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