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Pursuant to Ind.Appellate Rule 65(D), this 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.

FILED
Jul 22 2009, 10:15 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DORI NEWMAN Newman & Newman, P.C. Noblesville, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
SHANE ALLEN PYLE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 29A02-0904-CR-322

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Gail Bardach, Judge Cause No. 29D06-0709-FD-4484

July 22, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Shane Allen Pyle appeals his conviction for Criminal Mischief,1 a class A misdemeanor. On appeal, Pyle presents the following issue for review: Did the State present sufficient evidence of the defendant's reckless damage of another's property that would result in a conviction for criminal mischief as a class A misdemeanor? We reverse and remand. The facts favorable to the conviction are that on September 13, 2007, Dan Wasilenski was checking out of his hotel room in Hamilton County in the early morning hours. Wasilenski placed his cooler in the car and returned to his room for his suitcase. Moments later, Wasilenski returned to his car to find Pyle inside of his car. Pyle then exited Wasilenski's car and began walking to a nearby field. As Pyle was walking away, he told Wasilenski: "I only broke a piece of plastic," and offered to give money to Wasilenski for the damage. Transcript at 70. When Wasilenski told Pyle that he wanted to go inside to straighten things out, Pyle fled. Shortly thereafter, Pyle was arrested and taken to the Hamilton County Jail. On September 24, 2007, the State charged Pyle with auto theft, a class D felony, and criminal mischief, a class A misdemeanor. The State subsequently moved to amend the charging information from auto theft to attempted auto theft, also a class D felony, which motion the court granted. A jury trial was conducted on November 18, 2008, and the jury found Pyle guilty as charged. On December 19, 2008, Pyle was sentenced to concurrent sentences of three years for attempted auto theft and one year for criminal mischief as a class

1

Ind. Code Ann.

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