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.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JANE H. CONLEY GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

CHANDRA K. HEIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JOSHUA W. JOYNER, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1208-CR-618

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable James B. Osborn, Judge

Cause No. 49F15-1201-FD-4869

February 5, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
2

Case Summary

Joshua Joyner sold several items to a scrap yard that were later determined to have 

been stolen. Joyner was charged with theft. At trial, Joyner presented evidence that he was 

at home with his former girlfriend during the time that the items were taken from their owner. 

Joyner was found guilty as charged, and he now appeals. 

Joyner argues that there was insufficient evidence that he knew that the items were 

stolen and that the trial court abused its discretion by rejecting an instruction that he proffered

concerning his alibi defense. We conclude that there was sufficient circumstantial evidence 

that Joyner knew that the items were stolen, including testimony that he fled from the police. 

Joyner’s alibi evidence, if believed, would demonstrate that he was not involved in the initial 

theft of the items; however, he could still be guilty of theft if he knew that the items were 

stolen. Joyner’s proffered instruction, as worded, could have led the jury to believe that he 

had to be involved in the initial theft to be found guilty. Therefore, we conclude that the trial 

court did not abuse its discretion by declining to give the instruction, and we affirm Joyner’s 

conviction.

Facts and Procedural History

Nancy House lives with her father, Leonard Witt, in Indianapolis. On the morning of 

January 21, 2012, House was at the kitchen window when she noticed that a motor that Witt 

had been working on was not in its usual place in front of the garage. House and Witt went 

outside and discovered that the motor and several other items, including a steam table, a 

trailer, a wheelbarrow, and a 1959 Cushman scooter, were missing.
3

House spoke to a neighbor, Mary Ann Davis, who indicated that she had gotten up 

around 5:30 a.m. to let her dog out and had seen two men wearing hoodies loading items into 

a blue truck. Davis had not been concerned because she thought that they were having the 

stuff hauled away. 

House called the police and suggested to Witt that they check scrap yards for the 

missing items. House and Witt went to Westside Auto Parts (“Westside”), where employees 

indicated that they had received some items fitting the description of the missing items. Witt 

was taken into the yard, where he was able to identify the scooter, motor, steam table top, and 

wheelbarrow. House looked at security footage and photographs and was able to identify the 

missing items loaded in a blue truck. 

As House was doing this, the same blue truck pulled into Westside, but then backed 

out and drove away. Witness testimony varied as to whether the police had already arrived at 

Westside by this time and whether the truck appeared to be fleeing from the police.

Officer Monica Hodge followed the truck, which stopped when she activated her 

lights. Officer Hodge determined that the truck was registered to Joyner and that he was the 

person driving. Amanda Prochaska was in the back seat, and a man identified only as a 

friend of Joyner’s was sitting in the front passenger seat. Officer Erik Stevenson stayed with 

the truck while Officer Hodge returned to Westside, where she spoke to employees Danny 

Abner and Lydia Brown, as well as House and Witt. Abner and Brown indicated that Joyner 

was a regular customer and had brought a load in earlier that day. They were able to supply 

photographs of the transaction, a copy of Joyner’s driver’s license, and a receipt. Officer 
4

Hodge brought Abner to the blue truck, and he identified Joyner.

Officer Stevenson read Joyner his Miranda rights and asked him whether he had 

salvaged a scooter. Joyner said that he did not know anything about a scooter. Officer 

Stevenson then asked Joyner why “the scrap yard had his photo I.D. of him scrapping the 

scooter.” Tr. at 139. Joyner then admitted to scrapping the scooter, but did not admit 

knowing that it had been stolen. Joyner claimed that a man named Charlie gave it to him, but 

he provided no further information about Charlie. 

Joyner was arrested and charged with class D felony theft. On April 12, 2012, Joyner 

filed a notice of alibi, which alleged that he was at home with Prochaska, his former 

girlfriend, at the time of the theft.

A jury trial was conducted on June 20, 2012. Witt, House, Davis, Abner, Brown, 

Officer Hodge, and Officer Stevenson testified to the foregoing facts. Brown and Officer 

Hodge testified that Joyner had already started to drive away when the police arrived at 

Westside, but House and Abner testified that the police were already there when Joyner 

arrived, and Abner specifically indicated that Joyner appeared to be fleeing the police.

Joyner testified in his own defense and also presented testimony of Prochaska. 

Prochaska testified that she had called Joyner on January 20, 2012, and offered to clean his 

house if he would help her purchase some items for her baby. Joyner picked up Prochaska 

and her baby and brought them to his house. Prochaska cleaned his house and stayed 

overnight. Prochaska and the baby slept in the bedroom, and Joyner slept on the couch. 

Prochaska got up at about 3:00 a.m. to give her baby a bottle, and Joyner was asleep on the 
5

couch at that time. Joyner was at home when Prochaska woke up around 9:00 a.m. 

Prochaska did not think that Joyner could have left during the night, because the dogs would 

have barked and she would have heard it. She did hear the truck leave during the night and 

return in the morning. She saw a man walking away from the truck, and there were items in 

the truck bed that had not been there before.

Joyner testified that he lent his truck to a neighbor – apparently the person he referred 

to as “Charlie” – the evening of January 20. When the neighbor returned the truck, Joyner 

did not ask about the items in the truck bed. Joyner stated that he trusted his neighbor and 

that his neighbor had previously given him metal to scrap. Joyner testified that he sells scrap 

metal for a living and that he would typically go to Westside two or three times a day. Joyner 

loaded some additional items into his truck, and then he, Prochaska, and the baby drove to 

Westside. Joyner dropped off the load, received payment, and then drove back to his house.

Joyner then started loading his truck again. He asked a friend to help him load some 

heavy items onto the truck. Joyner, his friend, Prochaska, and the baby then returned to 

Westside. Joyner testified that after he had checked in, his friend reminded him “that he’s 

not allowed in there because he got in a previous fight,” so he backed out. Id. at 181. Joyner 

stated that the police were not present at that time, and that he left to drive his friend to a 

cousin’s house. Prochaska also testified that they left Westside to drop off the friend.

Joyner testified that he told Officer Stevenson that he did not steal the scooter but did 

acknowledge that he had sold it for scrap. Joyner stated that he told Officer Stevenson that 

Charlie had given it to him. Joyner claimed that he did not know Charlie’s last name, phone 
6

number, or address, and that he did not help the police find Charlie because he is “not a 

snitch.” Id. at 193.

After the close of evidence, the parties discussed final instructions. Joyner tendered

an instruction on his alibi defense, which the trial court rejected. Joyner was ultimately 

found guilty as charged, and he now appeals.

Discussion and Decision

Joyner raises two issues: (1) whether there was sufficient evidence that he knew that 

the items he sold to Westside were stolen; and (2) whether the trial court abused its discretion 

by declining to give Joyner’s proffered alibi instruction.

I. Sufficiency of Evidence

Our standard of review for a sufficiency of the evidence claim is well settled:

When reviewing the sufficiency of evidence supporting a conviction, we will 

not reweigh the evidence or judge the credibility of witnesses. We must look 

to the evidence most favorable to the conviction together with all reasonable 

inferences to be drawn from that evidence. We will affirm a conviction if 

there is substantial evidence of probative value supporting each element of the 

crime from which a reasonable trier of fact could have found the defendant 

guilty beyond a reasonable doubt.

Stewart v. State, 866 N.E.2d 858, 862 (Ind. Ct. App. 2007) (citations omitted).

“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 D felony.” Ind. Code § 35-43-4-2(a). Joyner argues that there is 

insufficient evidence that he knew that the items he sold to Westside were stolen. “A person 
7

engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high 

probability that he is doing so.” Ind. Code § 35-41-2-2(b).

The State argues that Joyner admitted that he stole Witt’s property. The page of the 

transcript cited by the State does not support this contention. Joyner admitted that he sold the 

scooter as scrap metal; he consistently denied knowing that it or the other items at issue were 

stolen. We admonish the State to refrain from mischaracterizing the record.

At trial, the State presented two theories. First, the State suggested that Joyner was 

directly involved in the theft. In support, the State pointed to the fact that Davis testified that 

she saw two men in hoodies loading up a blue truck, that a photograph of the transaction at 

Westside shows Joyner wearing a hoodie, and that Joyner used a blue truck to transport the 

items to Westside. Second, the State argued that even if Joyner was not one of the men 

directly involved in the theft, he nevertheless knew that the items were stolen, as evidenced 

by his flight from the police. See Maxey v. State, 730 N.E.2d 158, 162 (Ind. 2000) (flight is 

circumstantial evidence of the defendant’s knowledge of guilt). While the evidence is 

conflicting regarding whether Joyner fled from the police, at least one witness 

unambiguously testified that Joyner left Westside after noticing that the police were there, 

and we must consider the evidence favorable to the verdict. As additional circumstantial 

evidence that Joyner knew that he was involved in criminal activity, the State noted that 

Joyner did not provide any details about the man who supposedly gave him the items to 

scrap. In sum, there was evidence to support the State’s theories, and a reasonable jury could 
8

have believed that Joyner knew that the items were stolen; therefore, we conclude that there 

was sufficient evidence to support the conviction.

II. Jury Instruction

Joyner argues that the trial court abused its discretion by rejecting his proffered 

instruction on his alibi defense. “The manner of instructing a jury lies largely within the 

sound discretion of the trial court, and we review the trial court’s decision only for an abuse 

of that discretion.” Boney v. State, 880 N.E.2d 279, 293 (Ind. Ct. App. 2008), trans. denied.

In reviewing a challenge to a jury instruction, we consider: (1) whether the 

instruction is a correct statement of the law; (2) whether there was evidence in 

the record to support giving the instruction; and (3) whether the substance of 

the instruction is covered by other instructions given by the court.

Id. 

A defendant is entitled to have the jury instructed correctly on an essential rule 

of law. However, before a defendant is entitled to a reversal, he must 

affirmatively demonstrate that the instructional error prejudiced his substantial 

rights. Jury instructions are to be considered as a whole, and we will not find 

that the trial court abused its discretion unless we determine that the 

instructions taken as a whole misstate the law or otherwise mislead the jury.

Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (citations omitted), trans. denied

(2006).

Joyner proffered the following pattern jury instruction:

You have heard evidence that at the time of the crime charged the 

accused was at a different place so remote or distant or that such circumstances 

existed that he could not have committed the crime. The State must prove 

beyond a reasonable doubt the accused’s presence at the time and place of the 

crime.

Appellant’s App. at 68. 
9

The State argued that the instruction would be misleading to the jury. As discussed 

above, the State presented two theories: either Joyner was involved in taking the items from 

Witt, or he somehow knew that the items had been stolen, as evidenced by his behavior. 

Joyner’s alibi was relevant to the first theory, but not the second. The State argued that 

Joyner’s proffered instruction could lead the jury to believe that Joyner could only be found 

guilty if he were personally involved in taking the items from Witt. The trial court agreed 

with the State: “Well, I don’t think there’s an objection that it’s not the correct statement of 

law in a broader sense. But because we’re talking about a crime that occurred over a period 

of time – and not just one instance in one spot – it makes it problematic to give the 

instruction.” Tr. at 203. 

We also agree with this reasoning. Joyner’s proffered instruction, as written, suggests 

that if Joyner’s alibi evidence is believed, then he could not have committed the crime. We 

note that the trial court gave Joyner time to produce an amended instruction that would avoid 

this problem, but Joyner did not submit a reworded instruction. The essence of the 

instruction is that the State must prove every element of the offense beyond a reasonable 

doubt, and that idea was conveyed to the jury by other instructions that did not carry the same 

potential for confusion as Joyner’s proffered instruction. Appellant’s App. at 52, 56, 72. 

Therefore, we conclude that the trial court did not abuse its discretion by rejecting Joyner’s 

proffered instruction.

Affirmed.

KIRSCH, J., and MATHIAS, J. concur.