State v. Ingram, No. 121,354
| Citation | 469 P.3d 688 (Table) |
| Decision Date | 28 August 2020 |
| Docket Number | No. 121,354 |
| Court | Court of Appeals of Kansas |
| Parties | STATE of Kansas, Appellee, v. Gary O. INGRAM Jr., Appellant. |
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Schroeder, P.J., Green and Buser, JJ.
Gary O. Ingram Jr. appeals his felony conviction for criminal deprivation of a motor vehicle in violation of K.S.A. 2018 Supp. 21-5803(a), (b)(1)(A)(ii). He contends the trial evidence was insufficient to support his conviction for two reasons. First, Ingram argues that the State failed to prove that he exerted unauthorized control over the vehicle or that he intended to temporarily deprive the owner of the ability to use the vehicle. Second, he claims that insufficient evidence supports the status of his crime as a felony offense because the State failed to present evidence of his prior convictions that rendered his crime a felony offense. Upon our review, we hold that sufficient evidence supports Ingram's felony conviction of criminal deprivation of a motor vehicle. The conviction is affirmed.
On July 24, 2018, a salesperson at Don Hattan Chevrolet allowed Ingram to take a 10- to 20-minute test drive of a Volvo SUV. Ingram never returned the vehicle to the dealership. Police were called the next day and the SUV was reported as stolen. Three days after the vehicle was reported stolen, an officer located the SUV with two female occupants inside. Ingram was not present when the vehicle was recovered.
The State charged Ingram with felony criminal deprivation of a motor vehicle in violation of K.S.A. 2018 Supp. 21-5803(a), (b)(1)(A)(ii), with an alternative charge of felony theft. While criminal deprivation of a motor vehicle can be a misdemeanor offense, the crime is upgraded to a felony upon a defendant's third or subsequent conviction. K.S.A. 2018 Supp. 21-5803(b)(1)(A). At the preliminary hearing, the district court admitted into evidence certified journal entries showing that Ingram had two prior convictions for criminal deprivation of a motor vehicle. Noting these journal entries, the district court bound Ingram over on felony criminal deprivation of a motor vehicle. The case proceeded to a jury trial.
At trial, Donald Shaw, a sales manager at Don Hattan Chevrolet, testified that on July 23, 2018, Ingram came into the dealership and said he needed a new truck for his trucking company. Shaw informed Ingram that he would need to provide a year or two of tax returns to obtain a commercial loan. However, Ingram was unable to provide any tax documents that showed income from his business. Ingram looked at numerous vehicles. Shaw processed a credit application which revealed that Ingram had a low credit score. Shaw advised Ingram that because of his low credit score and lack of business documentation, he should look for vehicles valued between $10,000 and $14,000. Ingram expressed interest in looking at those vehicles but left because the dealership had closed for the day.
After Ingram left the dealership, he called Shaw and discussed purchasing a truck. The conversation was brief, and Shaw explained to Ingram that he would not be able to get a sizable loan. The phone call, however, allowed Shaw to obtain Ingram's phone number.
The next morning, Ingram returned to the dealership and met with internsalesperson Tucker Sweely. Shaw was not at the dealership because he had the day off. Like the previous day, Ingram told Sweely that he was looking for a new truck for his business. This time, however, Ingram brought a stack of papers and pictures of trucks attempting to validate his trucking business. Initially, Ingram and Sweely looked at several new trucks. After learning that Ingram had spoken with Shaw the previous day, Sweely called Shaw. Shaw explained that Ingram needed to look at less expensive vehicles because of his low credit score.
After the conversation with Shaw, Ingram and Sweely looked at used vehicles. About an hour and a half later, Sweely spoke with a manager about getting a deal made with Ingram. At that point, Ingram inquired about a Volvo SUV in front of the dealership worth about $11,000 to $12,000. Sweely checked with his manager and they agreed to let Ingram take the SUV on a test drive.
Before leaving on the test drive, Ingram was required to provide identification. Ingram gave a photocopy of his driver's license, which Sweely believed was valid. Sweely made a copy of Ingram's photocopy, gave Ingram a dealer tag, and let him take the SUV for a test drive. Sweely told Ingram that he expected the vehicle back in 10 to 20 minutes.
About 30 minutes after Ingram began the test drive, Sweely called Ingram and asked when he would return. Ingram explained that he was at a bank to get financing approved. Sweely asked Ingram how long it would be before he returned the vehicle, and Ingram responded that he would be back "sooner than later." After another hour passed, Sweely called Ingram again. Ingram said he was still at the bank and had to run a couple of errands before he would return with the vehicle. More time passed and Ingram still had not returned with the vehicle, so Sweely called again. This time, however, Sweely's call went directly to Ingram's voicemail. Sweely made subsequent attempts to reach Ingram, but each time the call would go to voicemail.
By the end of the day, Sweely had called Ingram about 10 times. Sweely left several voicemail messages explaining that Ingram needed to bring the vehicle back otherwise the police would be involved. Shaw, who was informed of the situation, also called Ingram and left numerous messages demanding that he bring the SUV back to the dealership. Despite these repeated messages, Ingram did not return to the dealership with the vehicle. In the evening, about 9 or 10 p.m., Shaw received a call from an unknown phone number, but he determined the caller was Ingram. The phone call was confusing, but Shaw believed that Ingram was attempting to explain that there was a fight at a gas station, and something happened to the SUV.
The following morning, July 25, 2018, Sweely and other managers began calling Ingram and leaving messages that the police would be called if he did not return the vehicle. However, Ingram did not return the SUV and it was reported as stolen. Officer Gary Palmer handled the offense report. He attempted to contact Ingram but was unable to locate him or the SUV that day. Officer Palmer listed the vehicle as stolen.
Four days later, on July 29, 2018, Officer Christopher Willis responded to a report of a suspected drug transaction taking place at a gas station between occupants of a blue vehicle and a Volvo SUV. Upon checking the dealer tag and VIN number on the SUV, the officer discovered the vehicle had been reported stolen. Ingram was not present when Officer Willis discovered the vehicle. Instead, two women, Chancie Greeno and Amanda Cole, were inside the SUV.
At trial, Ingram testified on his own behalf, explaining that he owned a business leasing trucks and freight vehicles. Ingram acknowledged that he went to Don Hattan Chevrolet on the evening of July 23, 2018, and returned to the dealership the following morning. Ingram testified that after looking at several vehicles, Sweely encouraged him to consider the SUV. Although skeptical, Ingram decided to test drive the vehicle.
According to Ingram, he left the dealership at 11 a.m., filled the vehicle with gas, and then drove to his bank to discuss financing. Ingram testified that Sweely called him while he was at the bank and told him to return the vehicle once he had completed his errands. Ingram told Sweely that he was picking somebody up on his way to return the vehicle. According to Ingram, after the phone call, he left the bank and picked up Greeno, who needed a ride to an address near the dealership. Ingram and Greeno then went to a "family's friend's house" for a while. Ingram drove to a gas station to fill up the SUV before returning it to the dealership.
Ingram testified that he went inside the gas station to pay for gas and buy cigarettes while Greeno was still in the vehicle. Ingram claimed that while inside the gas station, he saw Greeno drive off in the SUV. Ingram then asked the person standing next to him, whom Ingram believed was Deputy Ortega of the Sedgwick County Sheriff's Department, to give him a ride to catch the vehicle. According to Ingram, the SUV was pursued but the two men were unable to stop the vehicle.
Ingram testified that within an hour of the theft, he called Shaw to inform him that the SUV had been stolen. Ingram claimed that he told Shaw that he would do whatever he could to help get the vehicle back. Ingram explained that since his cell phone and wallet were in the SUV, he used Deputy Ortega's phone to call Shaw. Ingram conceded that he never reported to the police that the SUV, his wallet, or his cell phone were stolen, and he never checked with the dealership to see if his phone or wallet were recovered.
In rebuttal, the State presented evidence from Shaw, who testified that Ingram did not mention the SUV was stolen during the phone call on July 24, 2018. Instead, Ingram told Shaw that there was a fight and "the girls took the vehicle." Shaw also refuted Ingram's claim that he offered to assist in the recovery of the SUV.
At the close of evidence, the State dismissed the alternative charge of theft and elected to proceed only on the criminal deprivation of a motor vehicle charge. The jury found Ingram guilty of criminal deprivation of a motor vehicle. He was sentenced to 11 months in prison. Ingram filed a timely appeal.
On appeal, Ingram contends there was insufficient evidence presented at trial to support his felony conviction of criminal deprivation of a motor vehicle. Ingram's argument is two-fold. He first...
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