MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 14 2016, 9:39 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 Meggan Smith Gregory F. Zoeller Marion County Public Defender’s Office Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Denise Stone, September 14, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1602-CR-310 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Helen W. Marchal, Appellee-Plaintiff. Judge The Honorable Stanley Kroh, Magistrate Trial Court Cause No. 49G15-1503-CM-9514
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 1 of 6 Statement of the Case [1] Denise Stone (“Stone”) appeals her conviction by jury of theft as a Class A
misdemeanor. Her sole argument is that the trial court abused its discretion
when it excluded testimony from her thirteen-year-old daughter, T.H., that
T.H. had previously shoplifted at Target. Finding that this evidence was not
relevant, we conclude that the trial court did not abuse its discretion and affirm.
[2] We affirm.
Issue Whether the trial court abused its discretion in excluding evidence.
Facts [3] On March 15, 2015, Stone, T.H., Stone’s sister, and Stone’s nephew went to an
Indianapolis Old Navy store. As Stone entered the store with a large brown
purse that appeared to be empty, she looked around the store to see where the
cameras were placed and the employees were positioned. T.H. walked to the
middle of the store and appeared to act as a lookout. These were “red flag
behaviors” to loss prevention lead Brian Peterson (“Peterson”). (Tr. 28).
Peterson watched Stone go to the back of the store, make quick merchandise
selections without looking at prices or sizes, carry the merchandise behind a
display stand, and place it in her purse. Peterson never lost sight of Stone and
never saw anyone else put anything in her purse.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 2 of 6 [4] Thereafter, the group “kind of reconvened” and got in line at a register. (Tr.
31). Stone’s sister returned some merchandise, but Stone made no attempt to
remove or pay for the items she had placed in her purse. As Stone exited the
store through a first set of doors, Peterson identified himself, told Stone that he
had seen her conceal merchandise in her purse without paying for it, and asked
her to return to the store to fill out some paperwork. Stone initially started to
go back into the store but then became combative and resistant. She and
Peterson were each pulling on the purse when a store manager approached the
scuffle and helped Peterson gain control of the purse. Stone and her family fled
the store, got in their car, and immediately left the premises. Peterson was able
to get a license plate number and a vehicle description. In addition, he found
Stone’s identification card in the purse.
[5] The State charged Stone with theft as a Class A misdemeanor for “knowingly
or intentionally exert[ing] unauthorized control over the property of Old Navy,
to-wit: clothing, with the intent to deprive Old Navy of any part of the use or
value of the property.” (App. 16). At trial, Peterson identified photographs of
the eighteen articles of clothing that were found in Stone’s purse.
[6] During Stone’s case-in-chief, T.H. testified that she put the articles of clothing
in her mother’s purse. The trial court excluded T.H.’s testimony that she had
previously shoplifted from Target. During an offer of proof, T.H. testified that
at some point during the last four years, she had gone to Target with her cousin
and shoplifted headphones and a phone case. A Target employee saw her
leaving the store with the items and told her to put them back.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 3 of 6 [7] At the conclusion of the trial, the jury convicted Stone of Class A misdemeanor
theft. She appeals.
Decision [8] Stone argues that the trial court abused its discretion in excluding evidence.
Specifically, she contends that the trial court abused its discretion when it
excluded testimony from T.H. that T.H. had previously shoplifted at Target.
[9] The exclusion of evidence falls within the sound discretion of the trial court,
and we review the exclusion of evidence for an abuse of discretion. Luke v.
State, 51 N.E.3d 401, 415 (Ind. Ct. App. 2016), trans. denied. An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and
effect of the facts and circumstances. Id. When reviewing a decision under an
abuse of discretion standard, we will affirm if there is any evidence supporting
the decision. Thompson v. State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014),
reh’g denied. A claim of error in the exclusion of evidence will not prevail on
appeal unless a substantial right of the party is affected. Ind. Evidence Rule
103(a). In determining whether error in the introduction of evidence affected a
defendant’s substantial rights, we assess the probable impact of the evidence on
the jury. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000).
[10] Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with that character.”
However, Indiana Evidence Rule 404(b)(2) allows the introduction of other
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 4 of 6 crimes and wrongs for purposes other than proving propensity to commit the
charged crime, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. To be admissible
under this exception, the evidence must be relevant to some matter other than
the defendant’s propensity to commit the crimes and the prejudicial effect of the
evidence must not substantially outweigh its probative value pursuant to
Indiana Evidence Rule 403. Thompson, 15 N.E.3d at 1102. A trial court’s
discretion in admitting evidence of prior bad acts includes determining the
significance of the similarity or remoteness of the evidence. Hicks v. State, 690
N.E.2d 215, 220 (Ind. 1997).
[11] Under what has come to be called “reverse 404(b),” a defendant can introduce
evidence of someone else’s conduct if it tends to negate the defendant’s guilt.
Garland v. State, 788 N.E.2d 425, 429 (Ind. 2003). The admissibility of evidence
about prior bad acts by persons other than defendants is subject to Rule 404(b).
Id. at 430.
[12] Here, Stone contends that “[t]he identity of the person who put several items of
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 14 2016, 9:39 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 Meggan Smith Gregory F. Zoeller Marion County Public Defender’s Office Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Denise Stone, September 14, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1602-CR-310 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Helen W. Marchal, Appellee-Plaintiff. Judge The Honorable Stanley Kroh, Magistrate Trial Court Cause No. 49G15-1503-CM-9514
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 1 of 6 Statement of the Case [1] Denise Stone (“Stone”) appeals her conviction by jury of theft as a Class A
misdemeanor. Her sole argument is that the trial court abused its discretion
when it excluded testimony from her thirteen-year-old daughter, T.H., that
T.H. had previously shoplifted at Target. Finding that this evidence was not
relevant, we conclude that the trial court did not abuse its discretion and affirm.
[2] We affirm.
Issue Whether the trial court abused its discretion in excluding evidence.
Facts [3] On March 15, 2015, Stone, T.H., Stone’s sister, and Stone’s nephew went to an
Indianapolis Old Navy store. As Stone entered the store with a large brown
purse that appeared to be empty, she looked around the store to see where the
cameras were placed and the employees were positioned. T.H. walked to the
middle of the store and appeared to act as a lookout. These were “red flag
behaviors” to loss prevention lead Brian Peterson (“Peterson”). (Tr. 28).
Peterson watched Stone go to the back of the store, make quick merchandise
selections without looking at prices or sizes, carry the merchandise behind a
display stand, and place it in her purse. Peterson never lost sight of Stone and
never saw anyone else put anything in her purse.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 2 of 6 [4] Thereafter, the group “kind of reconvened” and got in line at a register. (Tr.
31). Stone’s sister returned some merchandise, but Stone made no attempt to
remove or pay for the items she had placed in her purse. As Stone exited the
store through a first set of doors, Peterson identified himself, told Stone that he
had seen her conceal merchandise in her purse without paying for it, and asked
her to return to the store to fill out some paperwork. Stone initially started to
go back into the store but then became combative and resistant. She and
Peterson were each pulling on the purse when a store manager approached the
scuffle and helped Peterson gain control of the purse. Stone and her family fled
the store, got in their car, and immediately left the premises. Peterson was able
to get a license plate number and a vehicle description. In addition, he found
Stone’s identification card in the purse.
[5] The State charged Stone with theft as a Class A misdemeanor for “knowingly
or intentionally exert[ing] unauthorized control over the property of Old Navy,
to-wit: clothing, with the intent to deprive Old Navy of any part of the use or
value of the property.” (App. 16). At trial, Peterson identified photographs of
the eighteen articles of clothing that were found in Stone’s purse.
[6] During Stone’s case-in-chief, T.H. testified that she put the articles of clothing
in her mother’s purse. The trial court excluded T.H.’s testimony that she had
previously shoplifted from Target. During an offer of proof, T.H. testified that
at some point during the last four years, she had gone to Target with her cousin
and shoplifted headphones and a phone case. A Target employee saw her
leaving the store with the items and told her to put them back.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 3 of 6 [7] At the conclusion of the trial, the jury convicted Stone of Class A misdemeanor
theft. She appeals.
Decision [8] Stone argues that the trial court abused its discretion in excluding evidence.
Specifically, she contends that the trial court abused its discretion when it
excluded testimony from T.H. that T.H. had previously shoplifted at Target.
[9] The exclusion of evidence falls within the sound discretion of the trial court,
and we review the exclusion of evidence for an abuse of discretion. Luke v.
State, 51 N.E.3d 401, 415 (Ind. Ct. App. 2016), trans. denied. An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and
effect of the facts and circumstances. Id. When reviewing a decision under an
abuse of discretion standard, we will affirm if there is any evidence supporting
the decision. Thompson v. State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014),
reh’g denied. A claim of error in the exclusion of evidence will not prevail on
appeal unless a substantial right of the party is affected. Ind. Evidence Rule
103(a). In determining whether error in the introduction of evidence affected a
defendant’s substantial rights, we assess the probable impact of the evidence on
the jury. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000).
[10] Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with that character.”
However, Indiana Evidence Rule 404(b)(2) allows the introduction of other
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 4 of 6 crimes and wrongs for purposes other than proving propensity to commit the
charged crime, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. To be admissible
under this exception, the evidence must be relevant to some matter other than
the defendant’s propensity to commit the crimes and the prejudicial effect of the
evidence must not substantially outweigh its probative value pursuant to
Indiana Evidence Rule 403. Thompson, 15 N.E.3d at 1102. A trial court’s
discretion in admitting evidence of prior bad acts includes determining the
significance of the similarity or remoteness of the evidence. Hicks v. State, 690
N.E.2d 215, 220 (Ind. 1997).
[11] Under what has come to be called “reverse 404(b),” a defendant can introduce
evidence of someone else’s conduct if it tends to negate the defendant’s guilt.
Garland v. State, 788 N.E.2d 425, 429 (Ind. 2003). The admissibility of evidence
about prior bad acts by persons other than defendants is subject to Rule 404(b).
Id. at 430.
[12] Here, Stone contends that “[t]he identity of the person who put several items of
Old Navy merchandise into Ms. Stone’s purse was a central issue at her trial. . .
. [e]vidence of T.H.’s prior theft should have been admitted to show the
identity of the person who committed the theft . . . . T.H.’s prior theft was
‘strikingly similar’ to the theft from Old Navy.” (Stone’s Br. 9, 10).
[13] Stone’s argument fails for two reasons. First, the identity of the person who
placed the merchandise into Stone’s purse was not at issue, and was therefore
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 5 of 6 not relevant. Peterson testified that he watched Stone go to the back of the
store, make quick merchandise selections without looking at prices or sizes,
carry the merchandise behind a display stand, and place it in her purse.
Peterson never lost sight of Stone and never saw anyone else put anything in
the purse. Stone’s identification card was found in the purse. Second, T.H.’s
prior shoplifting experience at Target was not similar to the theft from Old
Navy. At Target, T.H. was with her cousin when she attempted to take
earphones and a phone case. A Target employee saw her leaving the store with
the merchandise and told her to put them back. The theft at Old Navy involved
placing eighteen items of clothing in a purse that was brought into the store for
that purpose. T.H. went to Old Navy with her mother, who looked around for
cameras and employees after she entered the store. In addition, T.H. did not
remember when the Target incident had occurred. She only knew that it
happened after her father had died four years before. Based on the foregoing,
the trial court did not abuse its discretion in excluding T.H.’s testimony that she
had previously shoplifted at Target.
[14] Affirmed.
Bradford, J, and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016 Page 6 of 6