Roger Lee Hicks, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Roger Hicks was convicted of two counts of Level 5 felony theft—one count for removing a catalytic converter from a vehicle and another count for making the first cut to a second vehicle's converter before he was caught in the act and fled the scene. On appeal, Hicks challenges only the sufficiency of the evidence proving that each theft created a substantial risk of bodily injury to a person—a key element elevating these offenses from a misdemeanor to a Level 5 felony.

[2] We affirm Hicks's conviction for the fully removed catalytic converter. But we reverse his other conviction for the partially cut converter because the State's evidence addressed only the danger posed by a fully absent converter and not a merely damaged one. We therefore remand with instructions to enter judgment for the lesser-included offense of Class A misdemeanor theft on that count.

Facts

[3] Late in the night on January 6, 2023, Dustin Rea was awakened by a sound he recognized as a motorized saw. He went to his porch and saw a flashlight shining underneath his work van. As he “heard the second cut start,” he picked up a nearby cup and threw it towards the vehicle. Tr., p. 63. The flashlight then disappeared, and Rea saw a gray and purple PT Cruiser speed away. Rea inspected his van and found that someone had “made the first cut” on the catalytic converter, though it was still attached to the car. Id. at 45.

[4] That same night, a few blocks away, a resident heard the sound of “metal grinding.” Id. at 66. She looked out her window and saw a silver car pull away. She called the police, who later discovered that the catalytic converter had been removed from the SUV of a neighbor, Sierra Kitchens.

[5] Officers quickly located a PT Cruiser in the area roughly matching the given descriptions. Hicks was a passenger in the car, sitting in the seat behind the driver. Officers discovered in the trunk ten severed catalytic converters, a motorized saw, and yellow-painted saw blades both used and new. Many of the severed converters were marked with yellow paint residue that had transferred from the saw blades. One of those converters was later matched to Kitchens's SUV, which itself had yellow paint residue on the severed pipes.

[6] Hicks was eventually charged with ten counts of Level 5 felony theft: Count 1 for the catalytic converter from Kitchens's SUV, Count 2 for the catalytic converter from Rea's vehicle, and eight other counts for the other severed converters recovered from the PT Cruiser.

[7] At trial, Rea and Kitchens recounted the night of the theft, and several responding officers testified. Kitchens explained that after the theft, she had continued to drive her SUV for months without the catalytic converter. However, the car was too loud, and she was pulled over for “improper exhaust” and noise. Id. at 54. When Kitchens eventually stopped driving the car, she scrapped it because it was too expensive to repair. Rea testified that although the catalytic converter was still attached to his van, it required repair.

[8] A police sergeant specializing in vehicle theft testified that catalytic converters are “highly traded commodities” because they contain several “precious metals.” Id. at 156. When asked about the dangers of exposure to “exhaust coming out without a catalytic converter,” the sergeant explained that “the main purpose for a catalytic converter is to reduce the amount of carbon dioxide that it produces in emissions.” Id. at 156, 157. He testified that people have “passed out” in confined spaces from “carbon poisoning” and can experience “severe medical problems” from inhaling the gas. Id. at 157, 163.

[9] A car mechanic with twenty-five years of experience also testified that when a catalytic converter is absent from a vehicle, gases like “[c]arbon monoxide” can leak into the vehicle instead of being diverted to the exhaust exit. Id. at 173. The mechanic explained that this leak of fumes is especially dangerous to children.

[10] The jury found Hicks guilty of Counts 1 and 2 of Level 5 felony theft pertaining to Kitchens's and Rea's catalytic converters. Hicks was acquitted of the other eight counts. The trial court convicted him accordingly and sentenced him to an aggregate term of three years.

Discussion and Decision

[11] Hicks appeals his two convictions, claiming insufficient evidence supports them. When reviewing a sufficiency claim, we consider only the probative evidence favorable to the verdict and all reasonable inferences drawn therefrom, without reweighing evidence. Carmouche v. State, 188 N.E.3d 482, 485 (Ind. Ct. App. 2022) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). “We affirm unless no reasonable factfinder could find each element of the crime proven beyond a reasonable doubt.” Id.

[12] To convict Hicks of Level 5 felony theft as charged, the State was required to prove beyond a reasonable doubt that: (1) Hicks knowingly or intentionally exerted unauthorized control over the property of another person with intent to deprive that person of any part of its value or use; (2) the property is a valuable metal and relates to transportation safety; and (3) the absence of the property creates a substantial risk of bodily injury to a person. See Ind. Code § 35-43-4-2(a)(2)(B) (2022).

[13] Hicks does not dispute the first two elements. He challenges only whether the thefts created a substantial risk of bodily injury to a person. We find the evidence sufficient for his conviction for removing Kitchens's catalytic converter (Count 1), but not for his conviction for making a cut to Rea's converter (Count 2).

[14] To prove this risk-of-injury element, the State presented the testimony of a mechanic and a sergeant specializing in vehicle theft. The mechanic testified that “if the catalytic converter is cut off before the cabin area, then you'll get fumes into the vehicle where the exhaust is supposed to exit at the back of the vehicle.” Tr., p. 174. He further explained that if the car “doesn't have one on, the[re] is a lot of carbon monoxide” which is “very hard on small children.” Id. at 173-74. The sergeant testified that inhaling exhaust gases in a confined space can result in loss of consciousness and “severe medical problems.” Id. at 163. Additionally, Kitchens testified that before the theft, her car was in good working condition. She continued to drive it for months without a catalytic converter until she was pulled over for “improper exhaust” and noise. Id. at 54.

[15] This testimony, and the reasonable inferences that can be drawn from it, are sufficient to show a substantial risk of bodily injury. That risk was one of “substance or actual existence.” Tipton v. State, 981 N.E.2d 103, 107 (Ind. Ct. App. 2012) (quoting Smith v. State, 688 N.E.2d 1289, 1291 (Ind. Ct. App. 1997)) (interpreting the same language of “substantial risk of bodily injury” in the context of criminal recklessness). Kitchens's car was a working vehicle parked in a residential neighborhood, not an abandoned car in a junkyard unlikely to be driven. The car's catalytic converter was fully removed, which is precisely the condition that, according to the mechanic and sergeant, exposes occupants to dangerous fumes. Hicks's argument that Kitchens continued to drive the car without injury conflates actual injury with risk of injury. See Adams v. State, 542 N.E.2d 1362, 1366 (Ind. Ct. App. 1989) (“[N]o harm need have occurred for the risk of harm, i.e., the possibility of harm, to be present.” (emphasis in original)). Therefore, Hicks's conviction for theft of Kitchens's catalytic converter is supported by the evidence.

[16] On the other hand, Hicks's other conviction for cutting the catalytic converter of Rea's vehicle is not so supported. The evidence presented at trial discussed only the danger posed by the absence of a catalytic converter, and Rea's converter was not absent or removed. The testifying mechanic was asked about the danger posed by a vehicle “which has no catalytic converter on it.” Tr., p. 173 (emphasis added). His response was confined to a car that “doesn't have one on.” Id. The State continued to focus on complete removal, asking: “Would you ever drive a vehicle that didn't have a catalytic converter on it?” Id. at 174. The mechanic again responded about a converter that “is cut off.” Id.

[17] No testimony was elicited as to the risks posed by mere damage to a catalytic converter or how much damage is required to produce any dangerous effects. Nor is the record clear as to the extent of damage to Rea's catalytic converter. He testified only that “[t]hey made the first cut,” and “[i]t had to be repaired.” Id. at 45.

[18] Given this evidentiary gap, we cannot say that the State met its burden of proving beyond a reasonable doubt that Hicks's cut to Rea's catalytic converter created a substantial risk of bodily injury. Because the State failed to prove this count of Level 5 felony theft (Count 2), we reverse that conviction. However, we remand for imposition of judgment on the lesser-included offense—theft as a Class A misdemeanor—as Hicks requests.¹ See Burnett v. State, 74 N.E.3d 1221, 1226 (Ind. Ct. App. 2017) (“When a conviction is reversed because of insufficient evidence, we may remand to the trial court with instructions to enter a judgment of conviction on a lesser-included offense if the evidence is sufficient to support the lesser offense.”).

[19] In summary, we affirm Hicks's conviction on Count 1. We reverse his conviction on Count 2 and remand with instructions to enter judgment of conviction on Class A misdemeanor theft on that count.

[20] I concur with the majority's affirmance of Hicks's conviction for the theft of Kitchens's catalytic converter. I, however, respectfully dissent from the majority's reversal of Hicks's conviction for the theft of Rea's catalytic converter. I conclude that the State presented sufficient evidence to support both convictions.

[21] Our standard of review for a challenge to the sufficiency of the evidence is well-settled:

A sufficiency-of-the-evidence claim warrants a “deferential standard of appellate review, in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Those matters are reserved to the province of the jury. Brantley, 91 N.E.3d at 570. We consider “only probative evidence and reasonable inferences that support the judgment of the trier of fact” and will affirm the conviction “unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

Jackson v. State, 222 N.E.3d 321, 336 (Ind. Ct. App. 2023), trans. denied.

[22] Here, Rea testified that Hicks made “the first cut” on his catalytic converter, and the catalytic converter “would have been done probably” if a second cut had been performed. Tr. Vol. II pp. 45-46. The damage was extensive enough that the catalytic converter had to be repaired. The exhibits admitted at trial showed that the catalytic converters are oblong-shaped parts with pipes at each end, and the removal involves cutting the pipes at each end. The jury, thus, could have reasonably determined that one end of Rea's catalytic converter was cut, leaving only the other end of the catalytic converter to be cut for the removal to be completed. Further, the State presented evidence that catalytic converters prevent carbon monoxide from leaking into the vehicle.

[23] The jury could have reasonably inferred that cutting one end of the catalytic converter would prevent the converter from functioning properly, thereby allowing carbon monoxide to leak from the cut portion of the converter into the vehicle and creating a substantial risk of bodily injury. I conclude the majority is merely reweighing the evidence, which we cannot do. Accordingly, I would affirm both of Hicks's convictions. As a result, I concur with respect to the majority's decision regarding Count 1 and dissent with respect to the decision regarding Count 2.

FOOTNOTES

1.   Hicks does not challenge the sufficiency of the evidence supporting Class A misdemeanor theft, which requires proof of only the first element at issue here—that Hicks “knowingly or intentionally exert[ed] unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use.” Ind. Code § 35-43-4-2(a). Hicks only requests that we “remand this case ․ to enter convictions for Class A misdemeanor theft.” Appellant's Br., p. 11. We therefore take him to concede that the evidence for the misdemeanor theft is sufficient.

Weissmann, Judge.

Foley, J., concurs. Tavitas, C.J., concurs in part and dissents in part with a separate opinion.