Charlene Renier v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 15, 2017
• Docket: 09A05-1607-CR-1709
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 15 2017, 7:04 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Attorney General of Indiana Cass County Public Defender Matthew B. MacKenzie Logansport, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charlene Renier, March 15, 2017 Appellant-Defendant, Court of Appeals Case No. 09A05-1607-CR-1709 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Richard Appellee-Plaintiff. Maughmer, Judge Trial Court Cause No. 09D02-1506-F5-55

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 1 of 10 Case Summary and Issue [1] Following a jury trial, Charlene Renier was convicted of corrupt business

influence as a Level 5 felony and conspiracy to commit theft as a Level 6

felony. Renier appeals her convictions, raising two issues for our review, one of

which we find dispositive: whether the State presented sufficient evidence to

sustain Renier’s conviction for corrupt business influence. Concluding the State

did not present sufficient evidence, we reverse and remand.

Facts and Procedural History [2] On May 9, 2015, a store employee from a Walmart located in Logansport,

Indiana, discovered an empty cell phone box and assumed the cell phone was

stolen. Asset Protection Manager Brady Herrington reviewed surveillance

footage and observed at least three individuals grouped together in the cell

phone aisle, where one individual opened a cell phone package and concealed a

cell phone under his or her clothing. The individuals, two of whom who were

later identified as Kenny Purvis and Adam Wakefield, were also seen on

surveillance footage stealing several video games. The individuals then exited

the store without paying for the merchandise and drove away in a red truck. 1

1 During opening statements at trial, the State acknowledged Renier was not among the individuals who were in the Walmart on May 9, 2015.

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 2 of 10 [3] On May 15, 2015, store employees notified Herrington that keeper boxes were

discovered empty near the electronics aisle.2 Herrington reviewed surveillance

footage and observed Purvis, Wakefield, and an unidentified individual in the

video game aisle. Although the footage did not capture the individuals stealing

any merchandise, it does show Wakefield and the unidentified individual at the

location where the empty keeper boxes were found. The individuals exited the

parking lot of the store in the same red truck.

[4] On May 19, 2015, Amy Powers, also a member of Walmart’s asset protection

group, spotted Purvis, Wakefield, and a woman, later identified as Renier,

heading toward the store’s electronics department with a shopping cart

containing clothing items. Given her experience, Powers believed the group

would use the clothing to conceal store merchandise and called law

enforcement. Prior to law enforcement arriving, surveillance footage shows

Renier placing video games into the shopping cart. Footage also shows the trio

splitting up, with Wakefield taking control of the shopping cart and Purvis and

Renier looking at DVDs. Soon thereafter, law enforcement arrived and

escorted Purvis, Wakefield, and Renier to the Asset Protection Office. At the

time, Wakefield’s shopping cart held $453 worth of merchandise, including a

copy of the Witcher 3: Wild Hunt video game that had been just released that

2 Keeper boxes are clear boxes that provide security for store merchandise and are designed to deter theft. Transcript, Volume 1 at 8. Such boxes are often used to protect electronic merchandise, including DVDs and video games. Id. If an individual attempts to leave a store without paying for merchandise housed in a keeper box, an alarm sounds. Id.

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 3 of 10 day. Wakefield was also found with empty Walmart plastic bags stuffed in his

pockets, which Powers later explained is a common method of stealing from

Walmart. When law enforcement reviewed the surveillance footage, it

determined the trio travelled to Walmart in Purvis’ mother’s red truck. A

subsequent search of the truck uncovered eight copies of the Witcher 3 video

game. Store employees from the Logansport Walmart determined the video

games were from its store.

[5] A subsequent investigation into the matter uncovered that Purvis and Renier

were dating and living together in a residence in Pierceton, Indiana, a small

town located approximately sixty miles northeast of Logansport. At the time,

both Purvis and Renier were members of a Facebook group titled Wabash

County Sell Anything and Everything. Purvis used this Facebook group to sell

new and unopened video games. On May 9, 2015, Purvis posted to the

Facebook group a picture of thirteen unopened video games, noting a sale price

of $30 each.

[6] On May 26, 2016, the State charged Renier with Count I, corrupt business

influence, a Level 5 felony; Count II, conspiracy to commit theft, a Level 6

felony; and Count III, attempted theft, a Level 6 felony. A jury found Renier

guilty as charged. The trial court entered judgment of conviction on Counts I

and II and vacated the finding of guilty on Count III. The trial court sentenced

Renier to an aggregate sentence of four years in the Indiana Department of

Correction, with the entirety of the sentence suspended to probation. This

appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 4 of 10 Discussion and Decision I. Standard of Review [7] When reviewing the sufficiency of the evidence to support a conviction, a

reviewing court shall consider only the probative evidence and reasonable

inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). The court neither reweighs the evidence nor reassesses the credibility of

witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, the court

must respect the jury’s exclusive province to weigh conflicting

evidence. Id. Therefore, the court should affirm the conviction unless “no

reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt.” Drane, 867 N.E.2d at 146-47 (citation omitted).

II. Corrupt Business Influence [8] Renier contends there is insufficient evidence to sustain her conviction for

corrupt business influence. Specifically, she argues the State did not establish

she engaged in a pattern of racketeering activity. We agree.

[9] Renier was charged and convicted under the following provision of Indiana’s

Racketeer Influence and Corrupt Organizations (“RICO”) Act: “A person . . .

who is employed by or associated with an enterprise, and who knowingly or

intentionally conducts or otherwise participates in the activities of that

enterprise through a pattern of racketeering activity . . . commits corrupt

business influence, a Level 5 felony.” Ind. Code § 35-45-6-2(3). “Enterprise”

can mean a group of people associated in fact. Ind. Code § 35-45-6-1(c)(2). A Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 5 of 10 “pattern of racketeering activity” is defined as “engaging in at least two (2)

incidents of racketeering activity that have the same or similar intent, result,

accomplice, victim, or method of commission, or that are otherwise interrelated

by distinguishing characteristics that are not isolated incidents.” Ind. Code §

35-45-6-1(d). “‘Racketeering activity’ includes committing, attempting to

commit, conspiring to commit, or aiding and abetting in the commission of

theft, among other crimes.” Robinson v. State, 56 N.E.2d 652, 657 (Ind. Ct.

App. 2016) (quoting Ind. Code § 35-45-6-1(e)(14)), trans. denied. Thus, in order

to convict Renier under Indiana Code section 35-45-6-2(3), the State was

required to prove: 1) Renier associated with a group of people, 2) Renier, as a

part of the group, knowingly or intentionally participated in least two instances

of committing, attempting to commit, conspiring to commit, or aiding and

abetting in the commission of a theft,3 and (3) those incidents have the same or

similar intent, result, accomplice, victim, or method of commission, or that are

otherwise interrelated by distinguishing characteristics that are not isolated

events. We now address whether the State submitted evidence sufficient to

establish the second element.4

3 Although we acknowledge Indiana Code section 35-45-6-1(e) lists numerous crimes satisfying this element of corrupt business influence, we only note it as theft because the State’s theory is Renier participated in activity relating to thefts. 4 Renier does not argue the evidence is insufficient to establish the first element of the crime, i.e. she associated with an enterprise.

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 6 of 10 [10] At the outset, we note both parties agree Renier’s conduct captured by

surveillance footage at the Logansport Walmart on May 19—regardless of

whether we label her acts as conspiring to commit theft or attempted theft—

supports a finding of one instance of racketeering activity. However, we

struggle to find any evidence in the record establishing Renier knowingly or

intentionally participated in a second instance of racketeering activity. In an

attempt to satisfy this element of the crime, the State points to evidence that

Renier and Purvis lived together; Renier was a member of the Facebook group

Purvis used to sell video games; Purvis and Wakefield previously stole items

from the Logansport Walmart on May 9, 2015, and May 15, 2015; surveillance

footage captured Renier putting multiple video games in Wakefield’s shopping

cart on May 19, 2015; and eight additional copies of Witcher 3, which was

released for the first time on May 19, 2015, were discovered in the red truck in

the parking lot. Stated differently, the State believes the evidence establishes

Renier must have known of Purvis’ scheme, and at some point between the

theft on May 9, 2015, and the attempted theft on May 19, 2015, knowingly or

intentionally participated in a second racketeering activity. The State’s position

is a stretch.

[11] We conclude this evidence, at most, establishes Renier conspired to commit

theft, was associated with an enterprise, and knowingly participated in only one

instance of racketeering activity. The State did not admit any evidence

establishing Renier had knowledge of, or participated in, Purvis’ scheme prior

to May 19, 2015. The facts Renier lived with and dated Purvis and Renier was

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 7 of 10 a member of the same Facebook group used by Purvis to sell video games do

not prove she had knowledge of the scheme or that she knowingly or

intentionally participated in any prior thefts or subsequent sales of stolen

merchandise. As to the eight video games discovered in the red truck, the

evidence only establishes those games were from the Logansport Walmart store

and had been released for the first time that day. Thus, this evidence merely

gives rise to a lone reasonable inference: the games must have been taken and

placed into the red truck at some point prior to law enforcement detaining the

trio inside the store. Unlike the other previous thefts, however, there is no

surveillance footage showing who stole these games, or when and how the theft

occurred. Thus, the State’s request we infer from the evidence Renier

participated in a second instance of racketeering activity is unreasonable. We

therefore conclude the State failed to prove Renier knowingly or intentionally

participated in a pattern of racketeering activities.

[12] We also take this opportunity to address our concerns as to the practicality of

the State’s RICO case against Renier. In Robinson, the defendant was charged

with, and convicted of, violating the RICO statute after shoplifting from the

same Walmart store on two separate dates. 56 N.E.3d at 655. On appeal, the

defendant challenged the sufficiency of his RICO conviction and we concluded

the State did not present sufficient evidence to sustain the conviction. Id. at

659. Notwithstanding this conclusion, we also addressed the practical manner

of the State’s utilization of the RICO statute to charge the defendant:

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 8 of 10 We simply do not believe the commission of two acts of shoplifting of this type is the kind of activity our legislature meant to be covered by our RICO statute. We have previously observed that our RICO statute “was designed to address the more sinister forms of corruption and criminal activity . . . RICO is structured to reach and punish these diabolical operations that are a greater threat to society than random theft.” Additionally, we have described the intent behind RICO laws as permitting cumulative punishment and to “seek eradication of organized crime . . . by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” RICO laws were designed “to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots.”

Id. at 659-60 (alterations in original) (citations, some internal quotation marks,

and footnotes omitted). We therefore further concluded the defendant did not

fit the definition of someone involved with any kind of organized crime and

declined to apply RICO. Id. at 660. Although we acknowledge the evidence in

the record pertaining to Purvis’ role as the enterprise leader may warrant a

RICO case against him and such evidence establishes a criminal scheme unlike

that found in Robinson, we express hesitancy, consistent with Robinson, as to

whether the State’s theory of Renier’s participation in the enterprise, even

assuming it is accurate and supported by the evidence, is the kind of activity our

legislature intended to punish under the RICO statute.

[13] For these reasons, we conclude the State did not present sufficient evidence to

sustain Renier’s conviction for corrupt business influence. On remand, we

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017 Page 9 of 10 instruct the trial court to vacate Renier’s conviction and sentence for corrupt

business influence.5

Conclusion [14] The State’s evidence is insufficient to establish Renier participated in a pattern

of racketeering activity and therefore her conviction for corrupt business

influence cannot stand. Accordingly, we reverse and remand with instructions

for the trial court to vacate Renier’s conviction and sentence for corrupt

business influence.

[15] Reversed and remanded.

Kirsch, J., and Barnes, J., concur.

5 Because Renier’s sentence for corrupt business influence cannot stand, we need not address her contention that her convictions violate Indiana’s prohibition against double jeopardy.

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