Tyrone Burns v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 30 2020, 9:48 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Attorney General of Indiana
Cass County Public Defender
Courtney L. Staton
Logansport, Indiana Caryn Nieman-Szyper
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyrone Burns, June 30, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2943
v. Appeal from the
Cass Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. James K. Muehlhausen, Judge
Trial Court Cause No.
09D01-1712-F6-496
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2943 | June 30, 2020 Page 1 of 8
[1] Tyrone Burns (“Burns”) was convicted after a jury trial of receiving stolen auto
parts as a Level 6 felony.1 He appeals and raises the following issue for our
review: whether the State presented sufficient evidence to support his
conviction.
[2] We affirm.
Facts and Procedural History
[3] Adnan Abdeh (“Abdeh”) is a partner at South Chicago Auto Auction, an
automobile auction house located in Harvey, Illinois. Tr. Vol. III at 119. In
November 2017, Abdeh acquired a white Ford Mustang to sell on consignment.
Id. at 121-22. Abdeh noticed the Mustang was missing on December 11, 2017.
Id. The auction house reported the vehicle stolen on the following day. Id. at
122-23.
[4] On December 14, 2014, Cass County Sheriff’s Department Deputy Brian
Swartzell (“Deputy Swartzell”) was dispatched to a single vehicle accident on
County Road 50 East in Cass County, Indiana. Id. at 101. Upon arriving at the
scene, he observed a white Ford Mustang turned over on its top in a yard
between two homes. Id. A male stood up from the passenger side of the
Mustang and said, “my brother is trapped.” Id. Deputy Swartzell approached
1
See Ind. Code § 35-43-4-2.5(c).
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the vehicle and found Burns pinned inside with his feet pointing towards the
driver’s side and upper body on the passenger side. Id. at 101-03. Deputy
Swartzell spoke briefly with Burns and his brother before paramedics arrived
and airlifted Burns to Fort Wayne for treatment. Id. at 102, 108. When Deputy
Swartzell attempted to get more information from the brother for the car crash
report, he found that the brother had vanished from the scene. Id. at 109-11.
None of the witnesses or paramedics could provide any information as to his
whereabouts. Id.
[5] As part of the car crash investigation, Deputy Swartzell took pictures of the
scene and ran the temporary license plate through the dispatch center. Id. at
107, 110. The search revealed that the license was registered to a different
vehicle. Id. at 112. The vehicle’s identification number (“VIN”) identified the
car involved in the accident to be the Mustang reported stolen from Harvey,
Illinois. Id. at 111. At trial, Deputy Swartzell testified that he did not recall
looking at the ignition for keys and that he did not notice indications of the
vehicle being hot-wired. Id. at 113.
[6] From the pictures, Abdeh identified a marking and a custom sticker on the
Mustang with an inventory number that the auction house places on all its
vehicles. Id. at 123-24; State’s Exs. 9, 10. Abdeh testified that the auction house
only sells to professional dealers and does not rent vehicles. Tr. Vol. III at 125.
The auction house does not put temporary license plates on its vehicles. Id. at
134.
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[7] On December 21, 2017, the State charged Burns with receiving stolen auto parts
as a Level 6 felony. Appellant’s App. Vol. II at 12. While Burns was awaiting
trial, he made a phone call from inside the jail to a person identified as F.V.,
whom he told that the State had “failed to get significant evidence.” State’s Ex.
13. He assured F.V. that the State “can’t prove” that he knew the car was
stolen, and the case was “beat already.” Id. Burns explained that his “story”
was going to be that he did not steal the car but “rented” it for someone else,
and that he “had no idea if it was stolen.” Id.
[8] A jury found Burns guilty as charged on October 15, 2019. Tr. Vol. III at 165.
The trial court sentenced Burns to serve two years executed on November 14,
2019. Id. at 180; Appellant’s App. Vol. II at 77. Burns now appeals his
conviction.
Discussion and Decision
[9] Burns argues that the State did not present sufficient evidence to support his
conviction. When we review the sufficiency of evidence to support a
conviction, we do not reweigh the evidence or assess the credibility of the
witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans.
denied. We consider only the evidence most favorable to the trial court’s ruling
and the reasonable inferences that can be drawn from that evidence. Lock v.
State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence in
the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871,
875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if there is
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substantial evidence of probative value such that a reasonable trier of fact could
have concluded the defendant was guilty beyond a reasonable doubt. Wolf v.
State, 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).
[10] Burns contends that the evidence presented at trial was insufficient to support
his conviction of receiving stolen auto parts as a Level 6 felony. Specifically, he
argues the evidence merely showed that he was driving a vehicle that had been
stolen and not that he had knowledge that the vehicle was stolen.
[11] In order to convict Burns of Level 6 felony receiving stolen auto parts as
charged, the State was required to prove that Burns knowingly or intentionally
received the vehicle with the intent to permanently deprive the owner of any
part of its value or use, that the vehicle was worth at least $750 and less than
$50,000, and that Burns had prior unrelated convictions of theft, conversion, or
receiving stolen property. Ind. Code § 35-43-4-2.5(c). Knowledge that property
is stolen may be established by circumstantial evidence; however, knowledge of
the stolen character of the property may not be inferred solely from the
unexplained possession of recently stolen property. Fortson v. State, 919 N.E.2d
1136, 1143-44 (Ind. 2010). “Possession of recently stolen property when joined
with attempts at concealment, evasive or false statements, or an unusual
manner of acquisition may be sufficient evidence of knowledge that the
property was stolen.” Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct. App.
2005).
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[12] Here, the evidence most favorable to the verdict showed that Burns knew the
vehicle was stolen. On December 14, 2017, the vehicle was found in an
automobile accident with a false temporary license plate that was registered to
another car. Tr. Vol. III at 101, 112. Abdeh testified at trial that no license plate
was placed on the vehicle before it was stolen sometime between December 9
and December 11, 2017. Id. at 122-23, 134. Burns claimed that he had rented
the vehicle for someone else, State’s Exs. 12, 13; however, Abdeh testified that
the auction house does not rent vehicles. Tr. Vol. III at 25. The jury as
factfinder was not required to accept Burns’s unsupported claim. Thompson v.
State, 804 N.E.2d 1146, 1149 (Ind. 2004). It was reasonable for the jury to infer
that Burns and his brother equipped the vehicle with a false temporary license
plate to conceal the fact that it was stolen.
[13] Additionally, Burn’s brother left the scene before providing Deputy Swartzell
with the basic information required for a routine car crash. Tr. Vol. III at 109.
Deputy Swartzell testified that most people would provide their insurance
information to avoid a citation and that they often have many questions about
the accident and the car. Id. He found the brother’s unexplained disappearance
to be odd. Id. In Myer v. State, the Indiana Supreme Court stated that
“[e]vidence of flight may be considered as circumstantial evidence of
consciousness of guilt.” 27 N.E.3d 1069, 1077 (Ind. 2015) (quoting Brown v.
State, 563 N.E.2d 103, 107 (Ind. 1990)). While, standing alone, flight would be
insufficient to establish knowledge, flight may be considered as circumstantial
evidence of a guilty conscience, which combined with other circumstantial
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evidence, may be sufficient to support a conviction. Id. Here, the jury could
have reasonably inferred that Burns’s brother fled the scene because he was
afraid that Deputy Swartzell was about to discover that the vehicle was stolen
during the car crash investigation.
[14] Furthermore, the jury could have reasonably inferred Burns’s knowledge of the
stolen characteristic of the vehicle from the recorded phone call from inside the
jail while he was awaiting trial. Burns referred to his defense as a “story” that
he “didn’t steal” the vehicle but rather rented it for someone else. State’s Ex. 13.
He assured F.V. that the State could not prove that he had knowledge of the
Mustang being stolen beyond a reasonable doubt without any witnesses. Id.
The choice of the word “story,” by common usage, indicated fabrication.
There was also no evidence -- such as rental paperwork recovered from the
vehicle -- to prove that the Mustang was a rental car. It was for the jury to
decide whether to believe the “story” as the truth or not. Thompson, 804 N.E.2d
at 1149. Based on the evidence presented by the State, the jury had sufficient
basis to find that Burns knew that he was driving a stolen vehicle.
[15] Burns relies on Fortson for his contention that the evidence presented by the
State was insufficient. In Fortson, the Indiana Supreme Court reversed a
conviction of receiving stolen goods because the State had no evidence more
than mere unexplained possession of the vehicle to prove that Fortson actually
knew that the truck was stolen. 919 N.E.2d at 1143-44. When found in the
stolen truck and approached by the officer, Fortson did not resist, flee, provide
evasive answers or attempt to conceal the truck from officers. Id. Fortson’s
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conduct was consistent with an innocent person. See Fortson, 919 N.E.2d at
1144. However, these facts are distinguishable from the current case. Although
Burns did not physically resist Deputy Swartzell, this does not mitigate the
inference of guilt, because Burns was demobilized after the accident and was
not in the same position as Forston where he had interactions with police
officers. Fortson 919 N.E.2d at 1137; Tr. Vol. III at 102.
[16] Burns also claims that, like the appellant in Fortson, he did not live near where
the theft occurred, Appellant’s Br. at 13, that he had no affiliations with the
auction house in Harvey, id., that there was no indication that the vehicle was
hotwired, Tr. Vol. III at 153, and that he had a working key fob to the vehicle at
the time of the accident, id.. Burns’s argument requests this court to reweigh
evidence, which we cannot do. Lehman, 55 N.E.3d at 868. We, therefore,
conclude that the State presented sufficient evidence for the jury to find that
Burns had knowledge of the vehicle being stolen and to support his conviction
for receiving stolen auto parts.
[17] Affirmed.
Najam, J., and Brown, J., concur.
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