Andrew D. Peterson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Andrew Peterson appeals his conviction for Level 5 felony auto theft following a jury trial. Peterson presents two issues for our review:

1. Whether the State presented sufficient evidence to support his auto theft conviction.

2. Whether the trial court erred when it imposed court costs without stating the amount and without first holding an indigency hearing.

[2] We affirm and remand with instructions.

Facts and Procedural History

[3] Late on November 20, 2024, Martin Caro came home from work and found that his Saturn Vue was missing. Caro confirmed that his son did not borrow it before calling law enforcement the next morning. Logansport Police Department Officer Jonathan Flory analyzed data from Flock surveillance cameras and found hits for the Vue in Monticello and Pulaski County during the afternoon of November 20.

[4] On November 21, Medaryville Town Marshall Cody Foust saw the Vue parked outside the home of Ray Clemans and Rhonda Mitchell (“Mitchell's house”). Foust drove by the home twice and documented the parked Vue with his iPhone camera. Foust then called for backup. While he waited, a neighbor, Tammy Howard, and her sister, Lisa Dorman, approached Foust and told him that Peterson, a family friend, had stayed in their house without their permission while they were on vacation.

[5] While Foust was talking to Howard and Dorman, Foust saw a man leave Mitchell's house driving a vehicle that was not the Vue. That man, later identified as John Besner, returned a short time later. But when Besner left the house again, Foust conducted a traffic stop. And while Foust was talking to Besner, Foust saw someone leave Mitchell's house in the Vue. Foust did not stop talking to Besner, but Foust notified other officers that the Vue had been driven from the scene. And Foust told officers the general direction in which the Vue was traveling.

[6] About twenty minutes later, after Foust had finished the Besner traffic stop, Foust saw the Vue traveling westbound on County Road 300 North, but he lost sight of it. Soon thereafter, Foust saw the Vue parked outside of Michelle Rector's house. Foust saw a man, later identified as Peterson, walking around the yard, and Foust approached him. Foust told Peterson to remove his hand from his pants pocket, which he did, and Foust told Peterson to stop. Foust also radioed other officers for backup. Peterson then reached into his waistband. Foust, concerned that Peterson was reaching for a weapon, drew his weapon, and Peterson ran away from Foust. After Foust and another officer ordered Peterson to stop, several times, he finally complied, and the officers took him into custody.

[7] Logansport Police Department Detective Flaude Dillon interviewed Peterson, who gave conflicting answers regarding whether he had been in Logansport, where Caro lived. Then Peterson stated that he had gotten a ride from Logansport to Medaryville from a cousin, but then he said that he had walked. Peterson later said that he had started walking but had been picked up by “three Good Samaritans ․” Tr. Vol. 2, p. 195. Peterson denied having stolen the Vue, but he gave conflicting information about whether he had ever been in the Vue. After saying that he had not been in the Vue, he also said that he “[didn't] remember starting” the Vue. Id.

[8] At the scene, Foust photographed two sets of footprints in the snow. One set appeared to have been made by someone wearing shoes with “more tread” than the other set. Id. at 174. The prints made by shoes with a lighter tread appeared to have been made by someone exiting the Vue, and the other prints went underneath the Vue, indicating that they had been made before the Vue was parked there. Foust compared Peterson's shoes to the prints coming from the Vue with the lighter tread and concluded that Peterson had been the one to exit the Vue.

[9] The State charged Peterson with Level 5 felony auto theft and Class A misdemeanor resisting law enforcement. During a jury trial, Dorman testified that she and her sister live about one-half mile away from Mitchell's house, where the Vue was first seen on November 20. She testified that she had told Foust that Peterson had stayed in her house without permission the night before and that Peterson, who “never ha[d] a car,” had offered to sell her a vehicle that “looked like” Dorman's own vehicle, which was a Saturn Vue. Tr. Vol. 2, p. 132. Dorman thought he was joking.

[10] Rector testified that, on November 20, she, Peterson, and several others were at Mitchell's house. Rector testified that, just before she left Mitchell's house that night, she saw Peterson get into the driver's seat of the Vue, which was parked in the driveway. Rector also testified that, when officers knocked on her door the next day and asked if they could tow the Vue parked outside, she had no idea that it was there. In addition, Foust testified about the footprints in the snow and the similarity between Peterson's shoes and the tread of the shoe that had made the prints.

[11] Peterson did not testify, but he called his sister, Ashley Peterson, to present alibi testimony. Specifically, Ashley testified that, at approximately noon on November 20, 2024, she gave Peterson a ride from Logansport to Rensselaer. Ashley testified that she dropped Peterson off at a gas station there around 1:15 p.m. Because the State's evidence showed that the Vue was stolen during that time frame, Peterson argued that he could not have stolen it.

[12] The jury found Peterson guilty as charged. The trial court entered judgment accordingly and sentenced Peterson. In the sentencing order, the trial court ordered Peterson in relevant part to pay a fine of $1.00 and unspecified court costs. This appeal ensued.

Discussion and Decision

Issue One: Sufficiency of the Evidence

[13] Peterson argues that the State presented insufficient evidence to support his Level 5 felony auto theft conviction. Our standard of review is well settled.

When an appeal raises “a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses ․” We consider only the probative evidence and the reasonable inferences that support the [judgment]. “We will 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.’ ”

Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quoting Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011)).

[14] Indiana Code section 35-43-4-2(a)(2)(C)(i) provides in relevant part that a person who knowingly or intentionally exerts unauthorized control over the motor vehicle of another person with the intent to deprive the other person of any part of its value or use of the motor vehicle commits Level 5 felony auto theft.

[15] Peterson argues that the State's circumstantial evidence of his guilt is inconsistent and flawed and does not support his conviction. Peterson points out that Caro testified that, when he left for work at 2:00 p.m. on November 20, the Vue was still parked outside his house in Logansport. But the Flock surveillance video showed the Vue being driven in Monticello at 1:30 p.m. Peterson points out that that evidence is inherently contradictory. Peterson also argues that Ashley's testimony shows that he was in Rensselaer at the time the Vue was seen being driven in Monticello.

[16] Peterson also notes that there were several people at Mitchell's house the night of November 20 and that any one of them could have driven the Vue there. Peterson argues that Rector's testimony was unreliable given that it was dark and she was in a moving vehicle when she claims to have seen Peterson get into the driver's seat of the Vue. In addition, Peterson argues that the footprint evidence had no scientific basis, and there was no DNA evidence found inside the Vue. Finally, Peterson argues that he made contradictory statements to Detective Dillon because he was confused by Detective Dillon's questions.

[17] Peterson maintains further that, even if the evidence shows he possessed the Vue, his mere possession of the stolen vehicle is insufficient to prove auto theft. In support, he cites our Supreme Court's opinion in Fortson v. State, 919 N.E.2d 1136 (Ind. 2010). In Fortson, the Court held that

the mere unexplained possession of recently stolen property standing alone does not automatically support a conviction for theft. Rather, such possession is to be considered along with the other evidence in a case, such as how recent or distant in time was the possession from the moment the item was stolen, and what are the circumstances of the possession (say, possessing right next door as opposed to many miles away). In essence, the fact of possession and all the surrounding evidence about the possession must be assessed to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt.

Id. at 1143. Peterson argues that,

[u]nder the holding in Fortson, ․ when “all the surrounding evidence about the possession” is assessed, no rational juror could find Mr. Peterson guilty beyond a reasonable doubt based only on his alleged presence near a stolen vehicle that multiple people had access to, supported only by unreliable identification testimony and scientifically invalid footprint comparisons.

Appellant's Br. at 16 (citation omitted).

[18] Peterson's arguments on appeal are merely requests that we reweigh the evidence, which we will not do. Peterson was found in close proximity to the Vue on November 21, one day after it was stolen, and he was seen sitting in the driver's seat of the Vue the evening of November 20. Further, the jury was entitled to find Ashley's alibi testimony not credible; Peterson offered to sell a vehicle to Dorman around November 21, and she described the vehicle as being similar to her own Vue; the characteristics of footprints in the snow leading from the driver's side door of the Vue outside of Rector's house were consistent with Peterson's shoes; Peterson made evasive movements when Foust first approached him near the Vue; and Peterson gave inconsistent statements regarding whether he had ever been in the Vue. The State presented sufficient circumstantial evidence to support Peterson's Level 5 felony auto theft conviction.

Issue Two: Court Costs

[19] Peterson also contends that the trial court erred when it ordered him to pay court costs without setting an amount and without first determining his ability to pay. The State acknowledges the lack of a fixed amount but argues that we may look to the certified CCS to determine the amount of costs.¹ And the State argues that Peterson has waived the issue of his indigency.

[20] The parties agree that our Supreme Court's opinion in Spells v. State, 225 N.E.3d 767 (Ind. 2024), governs here. In Spells, the Court held in relevant part that,

[i]n 2020, the General Assembly enacted a new statute governing indigency determinations in a criminal case. When making such a determination, a trial court “shall” consider a defendant's “assets,” “income,” and “necessary expenses.” Pub. L. No. 140-2020, § 2, 2020 Ind. Acts 1284, 1285 (codified at I.C. § 35-33-7-6.5(a)). The court “may consider” a defendant's eligibility for SNAP, TANF, or “another need based public assistance program” as sufficient evidence of indigency. I.C. § 35-33-7-6.5(b). The court may make an “initial indigency determination” pending receipt of evidence. I.C. § 35-33-7-6.5(c). And, lastly, the court may “prorate” fines, fees, and costs to what a defendant “can reasonably afford.” I.C. § 35-33-7-6.5(d). We note that a defendant may be deemed unable to pay one cost, yet able to pay another. See Meeker v. State, 182 Ind. App. 292, 302, 395 N.E.2d 301, 307 n.5 (1979).

[21] Here, the trial court did not make an indigency determination before ordering Peterson to pay court costs, but Peterson made no objection to the trial court when it imposed costs. In support of its argument that Peterson has waived this issue for our review because of his failure to object, the State misconstrues our Supreme Court's holding in Spells. The Court did not, as the State contends, hold that, “to preserve the issue for appeal, a defendant must object to the imposition of a court cost because a cost, unlike a fine, is not part of a sentence. Spells, 225 N.E.3d at 771 n.5 (citing Bell v. State, 59 N.E.3d 959, 962 (Ind. 2016)).” Appellee's Br. at 18. Rather, the Court, in a footnote, merely observed that a defendant's challenge to costs imposed without an indigency hearing “could arguably be waived.” Spells, 225 N.E.3d at 771 n.5. Thus, the Court merely noted, in passing, that it would entertain a waiver argument, which the State did not make in Spells.

[22] In contrast, here, the State argues that Peterson waived the issue for our review by his failure to object to the court costs. The State maintains that, because costs are not a part of Peterson's sentence, his objection was required to preserve the issue for appeal. And the State points out that, under Indiana Code section 33-37-2-3(b), a trial court may suspend payment of court costs until a defendant has served his sentence and conduct a hearing at that time to determine his ability to pay. But here, the trial court neither fixed the amount of Peterson's court costs nor suspended payment of those costs.

[23] We therefore agree with Peterson that remand is appropriate for the trial court to correct the sentencing order to include the amount of court costs. And, unless the trial court suspends payment of those costs until Peterson completes his sentence, the court shall hold an indigency hearing.

Conclusion

[24] The State presented sufficient circumstantial evidence to support Peterson's Level 5 felony auto theft conviction.² We remand with instructions to the trial court to correct the sentencing order to include the amount of court costs imposed on Peterson. And if the trial court does not suspend payment of those costs, the court shall hold an indigency hearing.

[25] Affirmed and remanded with instructions.

FOOTNOTES

1.   We decline the State's invitation to discern the amount of court costs by visiting the certified CCS, which the State found on mycase.in.gov.

2.   Peterson does not appeal his conviction for resisting law enforcement.

Mathias, Judge.

Judges May and Bradford concur. May, J., and Bradford, J., concur.