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FILED
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Jun 30 2008, 9:17 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MARK S. LENYO South Bend, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana SHELLEY M. JOHNSON Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CLYDE PRYOR, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 71A03-0803-CR-124

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M. Marnocha, Judge Cause No. 71D02-0610-FD-1026

June 30, 2008

OPINION - FOR PUBLICATION

CRONE, Judge

Clyde Pryor appeals his conviction for class D felony auto theft, arguing the evidence is insufficient to support his conviction.1 We reverse. The evidence supporting the verdict shows that on or about October 5, 2006, South Bend police corporal Antwain Johnson responded to a dispatch between 2:00 p.m. and 10:00 p.m. regarding a stolen vehicle.2 He met with the victim and took the report. The victim stated that "a male came by and wanted to use her car. She declined to give the car to him. And she said that the male took the keys to the car anyway's [sic], and left in the car." Tr. at 69. On October 5, 2006, South Bend police officers Sheldon Scott and Frank Beigelbeck were conducting a traffic stop during the midnight shift, when Officer Scott saw a "black Suburban." Id. at 73. He "recalled that in the afternoon shift earlier as I was on my way into work, had been looking for a stolen black Suburban with a Wisconsin license plate. As it [the Suburban] passed, [he] saw that it had a Wisconsin license plate on it." Id. Officer Scott radioed a description of the vehicle and the license plate to the midnight shift sergeant, who confirmed that the vehicle "was the stolen Suburban from that afternoon." Id. at 74. The officers stopped the vehicle and ordered the driver to exit the vehicle. Pryor got out and identified himself. Officer Scott asked him who owned the vehicle, and Pryor was

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Other than the original, all copies of the State's appellee's brief are missing page two.

Corporal Johnson testified that that he took the report and met with the victim on October 5, 2006. Tr. at 69. However, the supplemental probable cause affidavit states that Ambrosia Martin contacted the police department on October 2, 2006, to report that her 1997 Chevrolet SUV had been stolen. Appellant's App. at 39.

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unable to explain how he came into possession of the car.3 Pryor was handcuffed and placed in Corporal Beigelbeck's car. A female passenger in the Suburban was also placed in Corporal Beigelbeck's car. While the two were in the police car, Pryor uttered, "I stole it." Id. at 84; Ex. 1 at 1:25:30. His comment was recorded on video.4 The victim came to the scene and said, "He took it from me, he's been asking to borrow it and I keep telling him no, and he stole it." Id. at 88. The victim identified the Suburban as her vehicle. Id. On October 5, 2006, the State charged Pryor with class D felony auto theft of Ambrosia Martin's 1997 Chevrolet SUV. Appellant's App. at 36. On November 1, 2007, a jury trial was held. Martin did not testify. No witnesses testified as to her identity. Pryor's recorded statement was admitted as State's Exhibit 1. Tr. at 84. The jury was instructed that to convict Pryor of class D felony auto theft, the State must prove beyond a reasonable doubt that Pryor knowingly exerted unauthorized control over the motor vehicle of Ambrosia Martin, a 1997 Chevrolet Suburban, with the intent to deprive her of any part of the vehicle's value or use. Appellant's App. at 14. The jury found Pryor guilty as charged. Pryor appeals. Pryor contends that the evidence is insufficient to support his conviction. Our standard of review is well settled: Upon a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of the witnesses, and respects the jury's exclusive province to weigh conflicting
The State asserts that Pryor stated, "A friend gave me the vehicle[,]" "I don't know their name[,]" "I don't have a phone number to get a hold of them." Appellee's Br. at 2-3, 5 (citing Officer Scott's testimony, Tr. at 76). However, Officer Scott testified that because a year had passed since the offense had been committed, he could not recall whether Pryor said these exact phrases but that these were the kinds of things people had said to him in the past. Tr. at 79. After listening to the recording several times, we have been unable to conclusively establish the topic of conversation between Pryor and his passenger.
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evidence. We must consider only the probative evidence and reasonable inferences supporting the verdict. We must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (internal quotations omitted). Further, "every criminal conviction must be supported by evidence upon each material element of the crime charged, and it is well settled that the name of the owner or possessor of property alleged to have been stolen is a material allegation which must be proven beyond a reasonable doubt." Thomas v. State, 423 N.E.2d 682, 685 (Ind. Ct. App. 1981) (emphasis added) (citing Buckley v. State, 254 Ind. 621, 624, 261 N.E.2d 854, 856 (1970)); see also Hensley v. State, 497 N.E.2d 1053, 1055 (Ind. 1986) (noting that name of owner or possessor of stolen property is a material allegation). A conviction may be sustained by circumstantial evidence alone. Id. To establish that Pryor committed class D felony auto theft, the State had to prove that he knowingly exerted unauthorized control over Ambrosia Martin's motor vehicle, a 1997 Chevrolet Suburban, with intent to deprive her of the vehicle's value or use. See Ind. Code

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