Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020 Page 1 of 9

MEMORANDUM DECISION

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.

APPELLANT PRO SE

Stephen A. Byrd

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Justin F. Roebel

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Stephen A. Byrd, Sr.

Appellant,

v.

State of Indiana,

Appellee.

February 19, 2020

Court of Appeals Case No.

19A-CR-226

Appeal from the St. Joseph 

Superior Court

The Honorable Elizabeth Hurley, 

Judge

Trial Court Cause No.

71D08-1509-F1-12

Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-226 | February 19, 2020 Page 2 of 9

[1] Stephen A. Byrd, Sr., appeals the denial of his motion for return of property. 

We affirm.

Facts and Procedural History

[2] The relevant facts from Byrd’s direct appeal follow:

In early 2014, Byrd began dating Kenya Belcher, who lived in 

Mishawaka with her two children. In March, Byrd moved into 

Belcher’s home. There was no formal rental agreement between 

Byrd and Belcher, but he sometimes gave Belcher money.

On September 14, 2015, Belcher and Byrd “broke up” and she 

told him that she did not want him to live in her house anymore. 

Tr. Vol. III at 20. In the ensuing days, Byrd asked Belcher 

whether he could come back to her house, and she told him “no 

each time.” Id. at 23. Belcher then asked her stepmother, Cheryl 

Ashe, to come and stay with her at Belcher’s house, and she did. 

Belcher and Ashe changed the locks to the doors on the house.

On September 17, Belcher arrived home with her children at 

about 7:00 p.m., and she started preparing dinner when she 

smelled cigarette smoke coming from the basement. Belcher 

went downstairs to investigate, and when she reached the bottom 

of the stairs and went through a door to the basement, someone 

struck her in the head. She fell down, and Belcher saw Byrd 

standing over her. Byrd began stabbing her with a knife. Belcher 

yelled for help. After Byrd had stabbed her multiple times, 

Belcher was able to get up, and she ran up the stairs, where she 

found Ashe and her children near the top of the basement stairs. 

Belcher kept running and ran out of the house and into the street, 

and Byrd followed her outside, but he ran in the opposite 

direction. Belcher eventually made her way back to her house 

and waited for emergency medical technicians to arrive. After 

Belcher was transported to a local hospital, she underwent a 
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diagnostic scan of her head, and she received stitches, staples, 

and glue to repair the multiple stab wounds.

A few days later, police officers apprehended Byrd after a foot 

chase. Byrd agreed to give a statement, and he signed a Miranda 

waiver form. Byrd explained that Belcher had attacked him, and 

he offered to show the interviewing police officer text messages 

to support his story. Accordingly, the officer gave Byrd an 

additional waiver authorizing “a complete search” of his phone, 

and Byrd signed the waiver. State’s Ex. 50. The officer then 

asked Byrd whether Byrd would let him give the phone to a 

forensics specialist to search the phone for communications with 

Belcher, and Byrd agreed. Byrd gave the passcode to his locked 

phone to the officer. The forensics specialist found multiple text 

messages between Byrd and Belcher, and he also found several 

video recordings Byrd had made during the late afternoon of 

September 17, 2015, depicting Byrd inside Belcher’s house saying 

things like: “She tried to outsmart me, she tried to lock me out of 

the house”; “I’m faced with a bad decision, it’s a decision that I 

have no choice but to make . . . [and] by the time you see this, I 

will be dead”; “If you play with somebody, if you play with their 

emotions, you can die.” State’s Ex. 64.

The State charged Byrd with attempted murder, a Level 1 felony, 

and two counts of burglary, one as a Level 1 felony and one as a 

Level 2 felony. Byrd filed a motion to suppress evidence, 

namely, the video recordings found on his cell phone. The trial 

court denied that motion following a hearing. A jury found Byrd 

guilty as charged. The trial court entered judgment of conviction 

only for attempted murder, a Level 1 felony, and burglary, as a 

Level 1 felony, and sentenced Byrd to an aggregate term of 

seventy years executed.

Byrd v. State, No. 71A05-1710-CR-2288, slip op. at 2-4 (Ind. Ct. App. July 20, 

2018).
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[3] On direct appeal, Byrd argued the trial court abused its discretion when it 

admitted certain evidence, the evidence was insufficient, and his convictions 

violated double jeopardy. Id. at 2. This Court affirmed. Id. 

[4] On July 30, 2018, Byrd, pro se, filed a Verified Motion for Return of Property

and requested the release of his cell phone to the custody of his mother. He 

asserted the matter was resolved by conviction after trial and the phone was no 

longer necessary as evidence of any crime. On September 25, 2018, the State 

filed an objection to Byrd’s motion asserting it had reason to believe the phone 

was purchased by the victim and she had a property interest in the phone.

[5] On December 10, 2018, the court held a hearing on Byrd’s motion. Byrd stated 

the State’s position had been that the phone was his property. He 

acknowledged the phone was purchased in 2015 in an account managed only 

by Belcher and asserted the phone was in his possession for the entire time since 

its purchase and was on his person when he was arrested. He referenced a 

“forth coming PCR,” stated he had a strong reason to believe that the phone 

contained exculpatory evidence, and asserted it contained pictures of his 

children and other data of sentimental value. Transcript Volume II at 4. The 

prosecutor argued that, although the phone was in Byrd’s possession, Belcher 

was the rightful owner because she purchased it and the account was in her 

name.

[6] On direct examination by Byrd, Belcher indicated some of Byrd’s paychecks 

were deposited into her checking account managed only by her but “[o]nly the 
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times [he was] working” “[a]nd sometimes when [he was] working they weren’t 

always deposited into [her] account.” Id. at 11. She indicated the phone bill 

was not paid off until some time in 2016 and the incident occurred in 

September of 2015. When asked if she considered the phone to be hers, she 

answered affirmatively. On cross-examination, she indicated that she 

purchased the phone in October 2014 along with phones for herself and her 

mother, she and her mother made payments on the account, and she and Byrd 

“did not have a joint account at all.” Id. at 16. When the prosecutor asked if 

there was any account in which she and Byrd deposited money, she answered: 

The times when his money was deposited into my account is 

when he owed me money. So he would owe me money. When I 

get this job, I will direct deposit my check in your account 

because he switched jobs. So it would be on and off. And it 

wouldn’t be a big amount. 

Id. at 17. When asked the type of things for which Byrd owed her money, she 

stated: “Buy his kids clothes, let him use money, buying his truck, etcetera. I 

mean it’s so many things.” Id. She clarified that the money Byrd deposited 

into the account was reimbursement for expenses or items purchased outside of 

the typical monthly expenses. She also indicated that she suspended service for 

the phone but still had to make the payments on it until 2016 and Byrd did not 

deposit any money into her account after the time of his arrest. On redirect 

examination, Belcher indicated that when she purchased the three phones in 

October 2014 one was purchased for Byrd. 

[7] The court stated:
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The fact is we have testimony. We have a receipt. We have 

testimony that is the receipt from the purchase of the three 

phones. There is testimony that the phone was paid for out of an 

account owned by Mr. [sic] Belcher. The testimony is that at 

times you deposited money into that account, but that the phone 

continued to get paid off from the time of your arrest in this 

manner until all the way until 2016.

So while there may have been some of your funds that, I guess, 

by virtue of the fact that they were commingled in that account 

on various occasions could have been used to pay part of that fee, 

the monthly payment fee. The fact of the matter remains that 

even if we just look at from the date of your arrest until when the 

phone was paid off in 2016 Ms. Belcher clearly paid the bulk of 

that phone.

And therefore I would agree with the state’s position based upon 

all of the evidence in front of me that the phone should not be 

returned to you as your property. I also think it’s difficult at this 

point to say that it should be returned to anybody because we’re 

in a situation where the case is still sort of to a certain extent 

ongoing if you are going to be filing post conviction relief – a post 

conviction relief petition.

And so I think everything as long as the case is still sort of active 

in that regard evidence should stay where it is and not be 

returned – you know, not be removed from where it resides in 

evidence at this time. So sort of for those dual reasons I would 

not be inclined to release the phone to your mother. And your 

mother especially is not a person whom the phone – I mean she 

has no ownership interest in the phone at all. And so I’m . . . 

going to deny the request to release the phone after seeing the 

evidence and hearing the testimony.

Id. at 23-24.
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[8] On December 12, 2018, the court entered an order denying Byrd’s motion. On 

May 20, 2019, he filed a petition for post-conviction relief under cause number 

71D08-1905-PC-15, which is still pending. 

Discussion

[9] Before addressing Byrd’s argument, we observe that although he is proceeding 

pro se, such litigants are held to the same standards as trained attorneys and are 

afforded no inherent leniency simply by virtue of being self-represented. See 

Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Byrd argues the phone was 

not reported stolen by Belcher and the State previously mentioned on several 

occasions that the phone belonged to him. 

[10] The State argues Byrd did not meet his burden to prove he is the rightful owner 

of the phone and Ind. Code § 35-33-5-5 does not require the return of property 

to a person who is not the owner. It also contends that, to the extent Byrd 

asserts it should be estopped from challenging his ownership of the phone 

because it previously relied on his consent to justify a search of the phone, the 

Fourth Amendment analysis is not a question of rightful ownership and a 

person has actual authority to consent to a search of property within their 

access or control.

[11] A person seeking the return of property seized by the State during an 

investigation must prove by a preponderance of the evidence that he or she is 

the rightful owner of the property. Roy v. State, 81 N.E.3d 641, 643 (Ind. Ct. 

App. 2017) (citing Tracy v. State, 655 N.E.2d 1232, 1236 (Ind. Ct. App. 1995),
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reh’g denied, trans. denied). Upon review of the denial of a motion for return of 

property, we will affirm unless the decision is clearly erroneous and cannot be 

sustained on any legal theory supported by the evidence. Id. 

[12] Ind. Code § 35-33-5-5 provides in part:

(c) Following the final disposition of the cause at trial level or 

any other final disposition the following shall be done:

(1) Property which may be lawfully possessed shall be 

returned to its rightful owner, if known. If ownership is 

unknown, a reasonable attempt shall be made by the law 

enforcement agency holding the property to ascertain 

ownership of the property. After ninety (90) days from the 

time:

(A) the rightful owner has been notified to take 

possession of the property; or

(B) a reasonable effort has been made to ascertain 

ownership of the property;

the law enforcement agency holding the property shall, at 

a convenient time, dispose of this property at a public 

auction. The proceeds of this property shall be paid into 

the county general fund.

* * * * *

(d) If any property described in subsection (c) was admitted into 

evidence in the cause, the property shall be disposed of in 

accordance with an order of the court trying the cause.

* * * * *

(f) For purposes of preserving the record of any conviction on 

appeal, a photograph demonstrating the nature of the property, 

and an adequate description of the property must be obtained 
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before the disposition of the property. In the event of a retrial, 

the photograph and description of the property shall be 

admissible into evidence in place of the actual physical evidence. 

All other rules of law governing the admissibility of evidence 

shall apply to the photographs.

[13] The record reveals that Byrd acknowledged the phone was purchased from an 

account managed only by Belcher. Belcher testified the deposits Byrd made 

into her account occurred only when he was working, the money he deposited 

into her account was reimbursement for expenses or items purchased outside

the typical monthly expenses, Byrd did not deposit any money into her account 

after the time of his arrest, and the phone was not paid off until some time in 

2016 after the incident occurred in September 2015. She indicated that she 

considered the phone to be her phone. Based upon the record, we cannot say 

that Byrd proved by a preponderance of the evidence that he or his mother is 

the rightful owner of the phone. We cannot say the trial court’s decision 

denying his motion is clearly erroneous. 

[14] For the foregoing reasons, we affirm the trial court’s order.

[15] Affirmed.

Baker, J., and Riley, J., concur.