BALL v. STATE (2026)

MEMORANDUM DECISION

[1] Matthew G. Ball appeals his conviction for auto theft as a class A misdemeanor. We affirm.

Facts and Procedural History

[2] On May 10, 2025, Ray Skillman Kia (the “Dealership”) provided Ball with a “courtesy” or “loaner” vehicle pursuant to a “Vehicle Use Agreement.” Transcript Volume II at 7; Exhibits Volume I at 4. The Vehicle Use Agreement indicated the vehicle was due to be returned by June 3, 2025. Ball did not return the vehicle by June 3rd. Service department staff at the Dealership contacted Ball multiple times telling him that he needed to return the loaner vehicle. Ball stated that he would return the vehicle, but never did so. The Dealership “tried to make arrangements to deliver [Ball's] vehicle to him so [it] could get [its] property back,” but “that just never happened.” Transcript Volume II at 8. The Dealership ultimately contacted the police. On July 9, 2025, police stopped Ball and impounded the vehicle.

[3] On July 9, 2025, the State charged Ball with auto theft as a level 6 felony. The charging information alleged that Ball “did knowingly or intentionally exert unauthorized control over a 2025 Kia Seltos, the motor vehicle of [the Dealership], with the intent to deprive [the Dealership] of the vehicle's value or use.” Appellant's Appendix Volume II at 10. On November 17, 2025, the court held a bench trial at which the State presented the testimony of Jeff Wright, the service manager for the Dealership, and Lawrence Police Officer Carter Hess. The State introduced the Vehicle Use Agreement which identified the courtesy vehicle loaned to Ball as a black 2025 Kia Sorento and stated, “OUT 5/10/2025” and “DUE IN 6/3/2025.” Exhibits Volume I at 4. When asked, “in this part of the contract, the vehicle that Kia loaned to this customer, what make and model is that,” Wright testified, “2025, I think it says Kia Sorento. Yeah, Kia Sorento.” Transcript Volume II at 7.

[4] Wright testified that, after Ball did not return the vehicle by June 3rd, he contacted Ball multiple times and told him “[t]hat we needed our property back and the loaner agreements are strictly for use while the customer's vehicle is being repaired,” “there were just constant excuses as to why we [sic] couldn't return the vehicle,” “[s]o we tried to make arrangements to deliver his vehicle to him so we could get our property back,” “[t]here was always, I'll be in this day, I'll be in this day, I'll be in this day,” “[a]nd that just never happened.” Id. at 8. When asked, “[s]o you did tell Mr. Ball that you needed the vehicle back,” Wright answered “[m]ultiple times, yes,” and when asked, “how did he respond,” he replied “[j]ust that he was going to bring it back,” “[i]t was typically, I'll be back, it was, forgive me, I'm working from memory, but it seemed like it was, well I'll have it back to you Monday,” “[a]nd that was, okay, and then Monday came and it just never happened.” Id. Wright testified that a “staff member put it out for repossession so that we could just get [the Dealership's] property back and they couldn't find it” and “then I was advised by our general manager to report it stolen.” Id. at 9. He testified, “there were impound fees on the vehicle,” “[t]he vehicle had to be cleaned,” and “[t]here were storage fees on his vehicle that had been left at the dealership.” Id. at 11. When asked, “you personally contacted him about returning the vehicle,” Wright replied, “I contacted him multiple times along with at least one of my other employees, yes.” Id. at 12. When asked about his encounter with Ball on July 9, 2025, Officer Hess testified: “I was in the area of 38th and Shadeland Avenue. I was looking for a stolen vehicle. It was a 2025 Kia Seltos. I observed a Kia Seltos traveling northbound on Shadeland and then turn right eastbound onto 38th Street and I initiated a traffic stop on the vehicle. And Mr. Ball was the driver of that vehicle.” Id. at 14.

[5] After the State rested its case, Ball's defense counsel moved for dismissal under Ind. Trial Rule 41(B), arguing that “[t]he charging information lists a Kia Seltos,” “the contract that the State introduced lists a Kia Sorento as the loaner vehicle,” “[w]e have to hold the State to their charging information and that is not it,” “[a]dditionally, the State has not proven that Mr. Ball intended to deprive [the Dealership] of the vehicle's value or use,” Ball “signed a contract” and “left his car with [the Dealership] for repairs,” “[h]e maintained contact with them throughout the period and there's not enough evidence to meet that intent element.” Id. at 16. The prosecutor replied, “[t]he State would move to amend the charge information,” “amending the information about the make and model of the car does not prejudice [Ball],” Ball “has been put on notice what this dispute is about and the defense has the vehicle use agreement from our discovery,” and “we believe that the charging information is simply a clerical error and it should not prejudice [Ball].” Id. The court stated:

I'm going to grant the motion to amend over the defense objection. I can do it up to and including trial. I can even do it after the case is rested as long as it doesn't prejudice [Ball's] substantial rights. This is a scrivener's error, at worst. It's a different model of the same make of car and that is simply a technical or a formal defect. It does not introduce a different or a new offense in any way. The defense is fully on notice of all of the allegations in this case and provided with those. And so I'm granting the motion to amend. I'm denying the motion to dismiss.

Id. at 17. Ball did not present evidence.

[6] Following closing arguments, the court stated:

Certainly Mr. Ball possessed the vehicle that was the property of [the Dealership]. He signed an agreement that indicated that he picked it up on May the 10th for a period of 24 days, and it was due back on June the third. As soon as June the fourth came, he was in breach of that agreement. Then every day after that, he was depriving [the Dealership] of the use of that value. The use of that vehicle continued to maintain possession of their vehicle despite the fact that they had contact with him. Indicating that he had knowledge he was supposed to return it. It wasn't a misunderstanding. He maintained possession of that vehicle all the way until July the ninth. It's over a month past the time he was to return it. He deprived [the Dealership] of the use of that value or the use of that property, of that vehicle, for over a period of a month. He did it knowingly. That is unauthorized control of a motor vehicle with the intent to deprive [the Dealership] of the value or use. This is not a game of gotcha because somebody typed in the wrong model on the vehicle. Doesn't get to then use it indefinitely and claim it as his own. State has absolutely proven beyond a reasonable doubt each and every element of the offense and the court does find Mr. Ball guilty of auto theft. That's a level 6 felony.

Id. at 20-21.

[7] At sentencing, Ball stated, “[i]t's all just a total misunderstanding,” “I've never stole a car in my life,” and, “[w]hen I had had two different cars with Kia, the first one was returned, they gave me the second one.” Id. at 28. The court sentenced Ball to 360 days with 354 days suspended to probation, ordered that he complete twenty hours of community service work as a term of probation, and indicated that he would receive alternative minimum sentencing upon completion. The court later entered an amended judgment of Ball's conviction as a class A misdemeanor.

Discussion

[8] Ball argues that the trial court abused its discretion in allowing the State to amend the charging information, that the evidence is insufficient to sustain his conviction, and that the court erred in denying his motion to dismiss under Ind. Trial Rule 41(B). Ball asserts that he was charged with the theft of a 2025 Kia Seltos but that the Vehicle Use Agreement “provided [him] the use of a 2025 Kia Surround [sic].”¹ Appellant's Brief at 11. He argues, “[a]mending the information did not correct this flaw as there was confusion as to which vehicle (Seltos or Surround [sic]) was ultimately meant to be stolen property” and, “[b]ecause of that uncertainty, the State failed to prove he had the intent to deprive [the Dealership] of any of the vehicle's value or use.” Id.

A. Amendment to Charging Information

[9] “A charging information may be amended at various stages of a prosecution, depending on whether the amendment is to the form or to the substance of the original information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (citing Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007)), reh'g denied. Whether an amendment to a charging information is a matter of substance or form is a question of law. Id. We review questions of law de novo. Id.

[10] Amendments to a charging information are governed by Ind. Code § 35-34-1-5. Ind. Code § 35-34-1-5(a) provides that an information may be amended “at any time because of any immaterial defect, including ․ any miswriting, misspelling, or grammatical error” as well as “any other defect which does not prejudice the substantial rights of the defendant.” Ind. Code § 35-34-1-5(b) provides the information “may be amended in matters of substance ․ before the commencement of trial; if the amendment does not prejudice the substantial rights of the defendant.” Ind. Code § 35-34-1-5(c) provides that, “[u]pon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the ․ information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.”

[11] The Indiana Supreme Court has held:

A defendant's substantial rights include a right to sufficient notice and an opportunity to be heard regarding the charge; and, if the amendment does not affect any particular defense or change the positions of either of the parties, it does not violate these rights. Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges. As we stated in Fajardo,

[a]n amendment is one of form and not substance if a defense under the original information would be equally available after the amendment and the accused's evidence would apply equally to the information in either form. Further, an amendment is of substance only if it is essential to making a valid charge of the crime.

859 N.E.2d at 1205 (quoting McIntyre v. State, 717 N.E.2d 114, 125-126 (Ind. 1999)[, reh'g denied]).

Erkins, 13 N.E.3d at 405-406 (citations and quotation marks omitted).

[12] Here, the State was required to establish the elements of theft as set forth in Ind. Code § 35-43-4-2(a), which provides:

A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class A misdemeanor. However, the offense is:

(1) a Level 6 felony if:

* * * * *

(B) the property is a:

(i) motor vehicle (as defined in IC 9-13-2-105(a)); or ․

[13] Under the statute, the State was only required to prove that the property over which Ball exerted unauthorized control was the property of the Dealership and was a motor vehicle. It was not required to prove that he exerted unauthorized control over a particular model of vehicle. The amendment was not essential to making a valid charge of the crime. Whether the model of the Kia vehicle which the Dealership provided to Ball as a courtesy or loaner vehicle was a Sorento or a Seltos, the State was required to show that the vehicle was the property of the Dealership and that Ball exerted unauthorized control over the vehicle with intent to deprive the Dealership of its value or use. We cannot say that Ball did not have a reasonable opportunity to prepare for and defend against the charge. The amendment related to a defect or imperfection in form which did not prejudice Ball's substantial rights. We cannot say the trial court erred in granting the State's motion to amend the charging information. See Whitehair v. State, 654 N.E.2d 296, 306-307 (Ind. Ct. App. 1995) (amendment to correct vehicle identification number was one of form and not substance and court did not err in allowing amendment).

B. Sufficiency of Evidence

[14] When reviewing the sufficiency of the evidence supporting a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence and consider conflicting evidence most favorably to the trial court's ruling. Id. We will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id. To sustain a conviction for theft, the State was required to prove beyond a reasonable doubt that Ball exerted unauthorized control over a motor vehicle belonging to the Dealership with intent to deprive it of the vehicle's value or use. See Ind. Code § 35-43-4-2(a).

[15] The State presented evidence that the Dealership loaned a 2025 Kia Sorento to Ball on May 10, 2025, pursuant to a Vehicle Use Agreement and that the courtesy vehicle was due to be returned to the Dealership by June 3, 2025. The State elicited testimony from Wright that he and the service department staff contacted Ball multiple times to tell him that he needed to return the courtesy vehicle. Ball stated that he would return the vehicle but never did so. Wright testified that he told Ball, “we needed our property back and the loaner agreements are strictly for use while the customer's vehicle is being repaired” and “we tried to make arrangements to deliver his vehicle to him so we could get our property back. There was always, I'll be in this day, I'll be in this day, I'll be in this day. And that just never happened.” Transcript Volume II at 8. He also testified that Ball said that “he was going to bring it back,” “it seemed like it was, well I'll have it back to you Monday,” and “then Monday came and it just never happened.” Id. The loaner vehicle was not recovered until police stopped Ball and impounded the vehicle on July 9, 2025. As to the model of the vehicle loaned to Ball, there is evidence that the loaner vehicle was a Sorento. As mentioned above, the State was not required to prove that Ball exerted unauthorized control over a particular model of vehicle. The State established that the Dealership provided a loaner vehicle to Ball and that Ball did not return the vehicle as set forth in the Vehicle Use Agreement and despite multiple contacts from the staff at the Dealership. The court was able to reasonably infer that Ball exerted unauthorized control over the Dealership's property with intent to deprive it of its value or use. The State presented evidence of probative value from which a reasonable trier of fact could find beyond a reasonable doubt that Ball committed the charged offense.

C. Motion to Dismiss

[16] Ind. Trial Rule 41 provides:

(B) Involuntary Dismissal: Effect Thereof. After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief․

[17] The grant or denial of a motion to dismiss made under Trial Rule 41(B) is reviewed under the clearly erroneous standard. Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009). We will reverse the trial court only if the evidence is not conflicting and points unerringly to a conclusion different from the one reached by the lower court. Id. In a criminal action, the defendant's Trial Rule 41(B) motion is essentially a test of the sufficiency of the State's evidence. Id. (citing Workman v. State, 716 N.E.2d 445, 448 (Ind. 1999)). Our review of the denial of the motion for involuntary dismissal is limited to the State's evidence presented during its case-in-chief. Id. The evidence already discussed was presented during the State's case-in-chief. Our review of the evidence presented by the State as set forth above and in the record does not point unerringly to a conclusion different from the one reached by the trial court. The trial court did not err in denying Ball's motion under Ind. Trial Rule 41(B).

[18] For the foregoing reasons, we affirm Ball's conviction.

[19] Affirmed.

FOOTNOTES

1.   Ball refers to a Kia “Surround” throughout his appellant's brief, but the Vehicle Use Agreement referred to a Kia Sorento as the model of vehicle loaned to Ball.

Brown, Judge.

Altice, J., and DeBoer, J., concur.