Abiyel Tsegai v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 08 2017, 10:25 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott Knierim Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
IN THE
COURT OF APPEALS OF INDIANA
Abiyel Tsegai, December 8, 2017
Appellant-Defendant, Court of Appeals Case No.
32A04-1707-CR-1441
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Stephenie Lemay-
Appellee-Plaintiff. Luken, Judge
Trial Court Cause No.
32D05-1610-F6-982
Barnes, Judge.
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Case Summary
[1] Abiyel Tsegai appeals his conviction for Level 6 felony auto theft. We affirm.
Issue
[2] The sole issue before us is whether there is sufficient evidence to sustain
Tsegai’s conviction.
Facts
[3] Tsegai was employed by a Best Western hotel in Plainfield. The hotel had a
van used solely to shuttle guests to and from the airport or for getting supplies
for the hotel; it was not for personal use. The hotel’s manager, Ashley
Lawrence, had told Tsegai more than once that he was not allowed to drive the
van at all and, in fact, that he was not even to “look at it.” Tr. p. 72.
[4] On October 16, 2016, Misty Kilgore was working as the front desk agent at the
hotel. She did not think she had permission to allow anyone in particular to use
the van, believing that only Lawrence could give such permission. Lawrence,
however, said that Kilgore had such authority. In any event, at about 8:30
a.m., Tsegai took the keys for the van and told Kilgore he was going to take a
friend home and would return in about fifteen or twenty minutes. Kilgore did
not attempt to stop him because she was not sure whether he had been given
permission to take the van.
[5] Approximately an hour after Tsegai left, Lawrence called Kilgore to check on
the hotel and learned that Tsegai had taken the van earlier that morning and not
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yet returned. Lawrence instructed Kilgore to call the police. An officer was
dispatched to the hotel between 9:30 and 10 a.m. While the officer was there,
Tsegai called the hotel and asked why police were there. As it turned out,
Tsegai was across the street from the hotel at a Steak & Shake restaurant with
the van. The officer learned that Tsegai did not currently have a valid driver’s
license. The officer then went to the restaurant, found Tsegai, and arrested
him.
[6] The State charged Tsegai with Level 6 felony auto theft and Class B
misdemeanor public intoxication. The State later dismissed the public
intoxication charge. A jury trial was held on May 8, 2017, after which Tsegai
was convicted as charged. He now appeals.
Analysis
[7] Tsegai claims there is insufficient evidence to sustain his conviction. When
analyzing a claim of insufficient evidence to support a conviction, we must
consider only the probative evidence and reasonable inferences supporting the
verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). “It is the fact-finder’s
role, not that of appellate courts, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction.” Id. The
evidence does not have to overcome every reasonable hypothesis of innocence,
and it is sufficient if an inference may reasonably be drawn to support the
verdict. Id.Court of Appeals of Indiana | Memorandum Decision 32A04-1707-CR-1441 |December 8, 2017 Page 3 of 5
[8] In order to convict Tsegai of Level 6 felony auto theft as charged, the State was
required to prove that he knowingly or intentionally exerted unauthorized
control over another person’s motor vehicle, with intent to deprive the owner of
the vehicle’s value or use. See Ind. Code § 35-43-4-2.5. The only argument
Tsegai makes is that there was insufficient evidence of his use of the hotel van
being unauthorized. He focuses primarily upon the conflicting testimony of
Lawrence and Kilgore, with Lawrence stating that Kilgore could have
authorized use of the van and Kilgore believing that only Lawrence had such
authority.
[9] However, the evidence most favorable to the conviction is that Lawrence
previously had told Tsegai, on several occasions and in no uncertain terms, that
he was not allowed to drive the van. Tsegai also did not have a valid driver’s
license on the date he took the van. Although Kilgore did not attempt to stop
Tsegai from taking the van keys and driving way, neither did she tell him he
was allowed to do so; she was unsure at the time whether someone else had
given him permission to take the van. Put together, this evidence indicates that
Tsegai, at the least, knew he was not authorized to take the van. Tsegai does
not challenge the sufficiency of the evidence on any of the other elements of
auto theft.
Conclusion
[10] There is sufficient evidence to sustain Tsegai’s conviction for Level 6 felony
auto theft. We affirm.
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[11] Affirmed.
May, J., and Bradford, J., concur.
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