Deshawn M. Hutcherson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Police found Deshawn Hutcherson driving a stolen vehicle hours after it was reported stolen. He had the car key, but the other items that had been previously attached to the key—including a tracking device—had been discarded in a parking lot miles away. Hutcherson told police he had borrowed the car from “Ms. Williams,” who he claimed was a family friend. But Anne Williams, the owner of the car, had never met Hutcherson or given anyone permission to use the vehicle that day. Following a bench trial, Hutcherson was convicted of auto theft. The trial court sentenced him to 12 years in prison.

[2] On appeal, Hutcherson challenges the sufficiency of the evidence supporting his conviction. We affirm his conviction but sua sponte remand to correct a sentencing error.

Facts

[3] Williams owned a 2010 black Acura MDX that was primarily driven by her son (Son). In early June 2024, Son left the Acura at Williams's home outside Indianapolis and took Williams's other vehicle on a camping trip. On Monday, June 3, 2024, Williams moved the Acura into her driveway and locked it. She was the only person with access to the vehicle that week.

[4] Williams last saw the Acura on Tuesday, June 4, 2024. The following day, she worked from home and never walked by the driveway to see whether the car was there. But on the evening of Thursday, June 6, she discovered both the Acura and Son's set of keys to it were missing. The key set contained the car's physical key, which flipped out from a key fob and was used to remotely lock and unlock the car's doors, an AirTag tracking device, and Son's apartment keys—all attached to a single key ring. Williams immediately reported the vehicle stolen. When she used the AirTag to track the missing keys, it appeared that the keys had been moved from her neighborhood to various locations around Indianapolis, ultimately ending up in a parking lot in Castleton.

[5] At 2:18 a.m. on June 7, 2024—just hours after Williams reported the theft—Zionsville police received a FLOCK camera alert ¹ indicating the stolen Acura was traveling through the camera's coverage area. Officers located the vehicle and initiated a traffic stop. Hutcherson was identified as the driver and sole occupant of the vehicle. The missing car key was in the ignition and further search of the car revealed a backpack, shoes, underwear, toilet paper, and clothing. Officers also found a package of Newport cigarettes in the front seat cupholder along with Hutcherson's identification card. Hutcherson admitted all these items were his.

[6] When officers questioned Hutcherson about how he obtained the vehicle, he claimed to have borrowed it from “Ms. Williams,” provided the first name “Anna,” and described her as a family friend. Tr. Vol. II, p. 53. Hutcherson told officers he had picked up the vehicle the day before and insisted that Williams would confirm she knew him and had lent him the car. But neither Williams nor Son had ever met Hutcherson, and neither had given anyone else permission to use the vehicle. Officers later found in the glovebox the vehicle's registration, which listed “Anne Williams” as the owner.

[7] When Williams recovered her vehicle, she was provided only the physical car key, which appeared to have been ripped out of the fob and separated from the rest of the key ring. By tracking the AirTag, Williams found the AirTag and the broken off key fob discarded in some bushes in a parking lot several miles from her home. Williams also noticed that the vehicle was in an altered condition with scratches on the body, a cracked back left taillight, and trash scattered throughout the interior. The car reeked of cigarette smoke, though neither Williams nor Son smoked.

[8] After a bench trial, the trial court found Hutcherson guilty of Level 6 felony auto theft.² Then after a separate proceeding, the court also found him guilty of the elevated offense of Level 5 felony auto theft based on his prior conviction for auto theft. Hutcherson was also determined to be a habitual offender and was ultimately sentenced to twelve total years in prison. He appeals.

Discussion and Decision

[9] On appeal, Hutcherson argues that the State presented insufficient evidence to support his auto theft conviction. We disagree and affirm his conviction. We also sua sponte address a sentencing error and remand for correction.

I. Sufficiency of Evidence

[10] When reviewing a challenge to the sufficiency of the evidence, we consider only the evidence most favorable to the verdict and all reasonable inferences drawn therefrom without reweighing evidence or reassessing witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm the conviction “unless no reasonable [factfinder] could find the elements of the crime proven beyond a reasonable doubt.” Id. (internal quotation omitted). The evidence need not “overcome every reasonable hypothesis of innocence.” Id. at 147 (internal quotation omitted).

[11] To convict Hutcherson of auto theft, the State had to prove that he knowingly or intentionally exerted unauthorized control over property—specifically a motor vehicle—of another person, with intent to deprive the other person of any part of its value or use. See Ind. Code § 35-43-4-2(a)(1)(B)(i). Though Hutcherson concedes that he “was indeed in possession of a stolen vehicle,” he claims that the evidence showed merely his possession, which is not sufficient to support a theft conviction. Appellant's Br., p. 9.

[12] We agree that the “mere unexplained possession of recently stolen property standing alone does not automatically support a conviction for theft.” Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010) (rejecting prior rule permitting automatic inference of theft from recent possession). “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[.]” Id.

[13] Hutcherson argues that in his case, “no such ‘additional evidence’ exists” beyond his possession. Appellant's Br., p. 10. He also relies on Gibson v. State for the claim that the theft was not “recent.” 533 N.E.2d 187 (Ind. Ct. App. 1989).³ Aside from the fact that Gibson relies on the automatic inference rule rejected in Fortson, the analysis applied there still turns on the additional corroborating circumstances. See id. at 189-90 (affirming theft conviction, even though theft occurred two days before possession and was therefore not “recent,” based on surrounding circumstances like defendant's possession of tool for operating car and his deceptive answers to police). Here, we find the circumstances surrounding Hutcherson's possession of the stolen vehicle support his theft conviction.

[14] First, the key fob and AirTag tracking device were found separated from the car key and discarded in a bush located miles from Williams's home. A reasonable factfinder could infer that whoever possessed the vehicle deliberately took these steps to avoid detection—conduct inconsistent with Hutcherson's explanation that Williams had given him permission to drive the car. Moreover, Williams's testimony demonstrated that Hutcherson's explanation was false. Williams testified that she had never met Hutcherson and gave no one permission to use the vehicle, other than Son. But her name was listed on the car registration, which was in the glovebox and accessible to Hutcherson.

[15] Based on Hutcherson's false statements, a reasonable factfinder could infer that he knew his possession was unauthorized and was attempting to conceal his theft. Cf. Fortson, 919 N.E.2d at 1144 (noting defendant's attempt to conceal theft or provision of evasive answers to police as relevant circumstances to support inference of theft). Hutcherson also stored personal items in the car—a backpack, shoes, underwear, toilet paper, and cigarettes—which supports an inference that Hutcherson intended to deprive the car's rightful owner of its use. See Bennett v. State, 871 N.E.2d 316, 322 (Ind. Ct. App. 2007) (finding sufficient evidence of intent to deprive owner of use of vehicle where defendant stored in car personal belongings like clothes, socks, and underwear), trans. granted and opinion adopted by 878 N.E.2d 836 (Ind. 2008).

[16] Despite this evidence, Hutcherson cherry-picks individual facts that could support his innocence. This amounts to an impermissible invitation to reweigh the evidence. See Drane, 867 N.E.2d at 146. He also treats the absence of specific facts that were present in other cases as proof that the evidence here is insufficient. However, our caselaw does not establish a mandatory checklist of circumstances that must be present to support a theft conviction. Rather, “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.” Fortson, 919 N.E.2d at 1143 (emphasis added).

[17] The circumstances surrounding Hutcherson's possession of Williams's Acura support a reasonable inference that Hutcherson knowingly or intentionally exerted unauthorized control over the vehicle with the intent to deprive Williams of its use. We therefore affirm Hutcherson's conviction for auto theft.

II. Sentencing Error

[18] We also sua sponte address a sentencing error—the trial court's merger of Hutcherson's two convictions—and remand for correction.

[19] The State charged Hutcherson with auto theft in two counts: Count III alleged a Level 6 felony, and Count II alleged a Level 5 felony based on Hutcherson's prior auto theft conviction. The trial court found Hutcherson guilty of Count III and entered judgment of conviction. Then, after reviewing evidence of Hutcherson's prior auto theft conviction, the trial court found him guilty of Count II and entered judgment of conviction. At the sentencing hearing, the trial court “merged Count II into Count III,” presumably for double jeopardy reasons. Tr. Vol. II, p. 141. The sentencing documentation reflects the same: the sentencing order states that Count III was “merged into Count II” and the abstract of judgment lists Count III as “Merged.” App. Vol. II, pp. 221, 232.

[20] As this Court has previously explained, “[a] trial court's act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008). When two convictions cannot stand under double jeopardy principles, the proper remedy is to vacate one conviction, not merge convictions. See id. We therefore remand for correction of the trial court's sentencing documentation to reflect that Count III is vacated, rather than merged.

Conclusion

[21] Finding sufficient evidence supports Hutcherson's conviction for Level 5 felony auto theft, we affirm. But we also remand for correction of a sentencing error.

FOOTNOTES

1.   According to the testimony of the responding officer, “FLOCK security cameras are essentially cameras that read license plates.” Tr. Vol. II, p. 8.

2.   Hutcherson was also charged with unlawful possession of a firearm based on a gun found in the car, but he was found not guilty.

3.   In his reply brief, Hutcherson argues for the first time that the State was also required to prove he had exclusive possession of the vehicle during the entire period it was missing, citing Muse v. State, 419 N.E.2d 1302, 1304 (Ind. 1981). This argument and the citation to Muse appear nowhere in Hutcherson's opening brief. “[A]n argument raised for the first time in a reply brief is waived.” Dunn v. State, 202 N.E.3d 1158, 1165 n.3 (Ind. Ct. App. 2023) (internal quotation omitted). Accordingly, we do not address this argument.

Weissmann, Judge.

Judges Bailey and Brown concur. Bailey, J., and Brown, J., concur.