Anthony Owens v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this Aug 28 2013, 5:52 am
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:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY OWENS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1301-CR-50
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt M. Eisgruber, Judge
Cause No. 49G01-1109-FC-69390
August 28, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Anthony Owens (Owens), appeals his conviction for two
Counts of alteration of a vehicle identification number, Class C felonies, Ind. Code § 9-
18-8-12.
We affirm in part, reverse in part, and remand with instructions.
ISSUES
Owens raises two issues on appeal, which we restate as the following:
(1) Whether the State established beyond a reasonable doubt that Owens
committed alteration of a vehicle identification number; and
(2) Whether the trial court improperly merged Owens’ convictions.
FACTS AND PROCEDURAL HISTORY
On September 28, 2011, Owens and Darrell Jackson (Jackson) drove to the Pul A
Part salvage yard in Indianapolis, Indiana to obtain a wiring harness. Owens carried a
bag of tools and wore a neon green safety vest. David Byrd (Byrd) was at the salvage
yard at the same time and observed Owens smashing a car window with a hammer while
Jackson stood near him. Byrd informed the yard manager, Scott Summers (Summers),
that he believed someone was attempting to steal vehicle identification plates (VIN
Plates). Summers called the police and Officer Greg Milburn of the Indianapolis
Metropolitan Police Department (Officer Milburn) arrived at the yard shortly thereafter.
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Officer Milburn confronted Owens and Jackson at the yard office as they were
purchasing a wire harness. Officer Milburn requested their identification. Jackson
became nervous and Officer Milburn asked him whether he had any weapons. Jackson
responded that he did not but Officer Milburn removed two knives from one of Jackson’s
pants pockets after patting him down. The pat-down also revealed what seemed like two
razor blades in the other pants pocket, which Jackson denied knowing what they were.
Officer Milburn removed two damaged VIN Plates. Summers and Officer Milburn then
toured the yard and located two automobiles, a 1994 Oldsmobile 98 and a 1990
Oldsmobile 88 Royale, with their VIN Plates removed. Owens and Jackson were
arrested thereafter.
On September 30, 2011, the State filed an Information charging Owens with
Count I, alteration of a vehicle identification number, a Class C felony, Ind. Code § 9-18-
8-12; Count II, possession of an unattached VIN Plate, a Class D felony, I.C. § 9-18-8-
15; Count III, theft, a Class D felony, I.C. § 35-43-4-2; Count IV, alteration of a vehicle
identification number, a Class C felony, I.C. § 9-18-8-12; Count V, possession of an
unattached VIN Plate, a Class D felony, I.C. § 9-18-8-15; and Count VI, theft, a Class D
felony, I.C. § 35-43-4-2.
On December 12, 2012, a bench trial was held. Jackson, who had pled guilty
earlier pursuant to a plea agreement, testified against Owens. The trial court found
Owens guilty on all Counts. On December 21, 2012, the trial court held a sentencing
hearing. Because it used the same evidence to prove Counts I-III and the same evidence
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to prove Counts IV-VI, the State asserted that Owens’ convictions on Counts II and III
should merge into Count I and that Counts V and VI should merge into Count III. The
trial court agreed, stating, “it clearly is all the same evidence.” (Transcript p. 147).
Owens’ counsel agreed and the trial court merged the convictions accordingly. The trial
court sentenced Owens to six years incarceration and four years suspended each on
Counts I and III, with the sentences to run concurrently.
Owens now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency
Owens argues that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his convictions. In reviewing sufficiency of the evidence
claims, we will not reweigh the evidence or assess the credibility of the witnesses. Altes
v. State, 822 N.E.2d 1116, 1121 (Ind. Ct. App. 2005), trans. denied. We will consider
only the evidence most favorable to the judgment, together with all reasonable and
logical inferences to be drawn therefrom. Id. The conviction will be affirmed if there is
substantial evidence of probative value to support the conviction of the trier-of-fact. Id.
To convict Owens of alteration of a vehicle information number as a Class C
felony, the State was required to prove that he damaged, removed, covered, or altered a
vehicle identification number. See I.C. § 9-18-8-12 (West St. Ann. 2011);1 Bond v. State,
925 N.E.2d 773, 781 (Ind. Ct. App. 2010), trans. denied. Here the charging Information
1
Indiana Code Section 9-18-8-12 has since been repealed. See P.L. 262-2013, Sec. 70, effective July 1, 2013.
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alleged that Owens, by removing the VIN Plates from the Oldsmobile automobiles, “did
knowingly remove or alter an original or special identification number which appeared on
a motor vehicle.” (Appellant’s App. pp. 30-31).
Based on Jackson’s inconsistent trial testimony and the fact that Jackson was
discovered with the VIN Plates, Owens now argues that the State did not produce
sufficient evidence to prove beyond a reasonable doubt that he, rather than Jackson,
committed the offenses. He also asserts that Jackson’s testimony cannot be believed
because of his plea agreement, which required him to testify against Owens. Finally,
Owens argues that Byrd’s testimony cannot be believed because of his bias against
Owens.
The evidence most favorable to the judgment reveals that Owens traveled with
Jackson to the salvage yard. Owens carried a bag of tools. Jackson testified that he “was
standin [sic] there looking” while Owens removed one VIN Plate after opening the car
door to remove it from the inside. (Tr. p. 64). Jackson saw Owens remove the VIN Plate
by prying it from the car with a screwdriver and a hammer. For the second VIN Plate,
Jackson testified that he thought Owens “broke some windshield to get it” and removed it
in a fashion similar to the other Oldsmobile. (Tr. p. 66). Byrd observed Owens striking
the windshield of a car with a hammer and reported the incident to Summers. Owens
gave the VIN Plates to Jackson and “asked [him] to carry ‘em [sic] out.” (Tr. p. 67).
Jackson carried the VIN Plates in his pocket and the men went to pay for the wire
harness. Officer Milburn patted-down Jackson and found two VIN Plates, which were
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damaged at the rivet plates. Summers and Officer Milburn went out into the yard and
found the vehicles from which the VIN Plates had been removed. In view of the
foregoing, Owens argument on appeal is a request to reweigh the evidence and determine
witness credibility, which we will not do. See Altes, 822 N.E.2d at 1121. In sum, we
conclude that there is sufficient evidence to sustain Owens’ convictions for altering a
vehicle identification number.
II. Merger
Owens also argues that the trial court erroneously merged his convictions for
alteration of a vehicle identification number without vacating his convictions for
possession of unattached VIN Plates and theft. Pointing to the chronological case
summary (CCS), which states that he was convicted on all Counts, Owens asks this court
to vacate his convictions for possession of unattached VIN Plates and theft, alleging a
double jeopardy violation. The State argues that remand is not required because the
abstract of judgment and the trial court’s oral sentencing statement reflect that Owens
was convicted only for alteration of a vehicle identification number.
A defendant’s constitutional rights are violated when a court enters judgment
twice for the same offense, “but not when a defendant is simply found guilty of a
particular count.” Green v. State, 856 N.E.2d 703, 704 (Ind. 2006). Following a bench
trial, Owens was found guilty on six Counts: alteration of a vehicle identification
number, Counts I and IV; possession of unattached VIN Plates, Counts II and V; and
theft, Counts III and IV. At the sentencing hearing, the State argued that Counts I
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through III “required the same evidence” and Counts IV through VI “required the same
evidence.” (Tr. p. 147). The trial court agreed and merged the offenses accordingly.
The abstract of judgment and the trial court’s oral sentencing statement reflect that
Owens was convicted and sentenced only for alteration of a vehicle identification
number. However, the CCS states that “Judgment of conviction entered on count(s) 1, 2,
3, 4, 5, 6” but also that “[Counts] 2 & 3 merge with [Count] 1 [and] Counts 5 & 6 […]
merge with Count 4.” (Appellant’s App. p. 21).
The State acknowledges that a discrepancy in the record exists but characterizes it
as clerical error in the CCS. It asserts that remand, if necessary, should only be required
to show that no judgment of conviction was entered on Counts II, III, V, and VI. We
conclude that under these circumstances, there is no need to order the trial court to vacate
its findings on Owens’ guilt. Instead, we reverse and remand with instructions to the trial
court to amend the CCS to reflect that no judgment of conviction was entered on Counts
II, III, V, and VI. See Green, 856 N.E.2d at 704.
CONCLUSION
Based on the foregoing, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to sustain Owens’s conviction for alteration of a vehicle
identification number. However, we find that the CCS contains a clerical error by stating
that Owens was convicted for Counts II and V, possession of unattached VIN Plates, and
Counts III and VI, theft. We therefore reverse and remand to the trial court with
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instructions to amend the CCS to reflect that no judgment of conviction was entered on
Counts II, III, V, and VI.
Affirmed in part, reversed in part, and remanded with instructions.
KIRSCH, J. and C. J. ROBB concur
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