MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 29 2016, 10:18 am 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 Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Esmeralda Villarreal, February 29, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1507-CR-923 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G07-1501-CM-2132
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 1 of 7 Case Summary [1] While her husband and another man loaded a pickup truck with scrap radiators
from a factory’s dumpster without the factory owner’s permission, Esmeralda
Villarreal sat in the truck cab facing the parking lot entrance. A factory
employee drove into the parking lot, saw the theft in progress, and blocked the
entrance with his vehicle. Police officers arrested Villarreal and the others at
the scene.
[2] The State alleged that Villarreal attempted to commit class A misdemeanor
theft by loading metal into the truck. At trial, Villarreal moved for involuntary
dismissal based on the lack of evidence that she had personally loaded metal
into the truck. The State argued that she had acted as a lookout for her
husband and the other man and therefore was guilty as an accomplice. The
trial court agreed.
[3] On appeal, Villarreal argues that her conviction should be reversed because the
State failed to prove that she loaded metal into the truck. The State argues that
the evidence is sufficient to sustain her conviction as an accomplice. We agree
with the State and therefore affirm.
Facts and Procedural History [4] On the morning of January 16, 2015, C & R Racing employee Robert
Worthington returned to his company’s factory in Indianapolis after making a
delivery. He saw a pickup truck parked next to a dumpster, with the truck cab
facing the parking lot entrance. Worthington saw one man lifting scrap
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 2 of 7 radiators out of the dumpster and another man loading them into the truck. 1
He also saw Villarreal sitting in the truck’s passenger seat. Worthington
blocked the parking lot entrance with his vehicle “so they couldn’t leave” and
went inside the factory to alert the owner. Tr. at 10. The owner went outside
to confront Villarreal and the two men, one of whom was her husband. Police
officers arrived within approximately five minutes and arrested Villarreal and
her companions.
[5] The State alleged that Villarreal committed class A misdemeanor attempted
theft by loading metal into the truck. At Villarreal’s bench trial, Worthington
and the arresting officer testified for the State. Worthington testified to the
foregoing facts, and the officer testified that Villarreal was sitting in the pickup
cab when she arrived at the factory. After the State rested, Villarreal moved for
involuntary dismissal under Indiana Trial Rule 41(B) based on the lack of
evidence that she had personally loaded metal into the truck. The State argued
that Villarreal “was actually there acting as a lookout” and that “[s]he doesn’t
have to actually be loading metal physically into the truck to get an accomplice
to the attempted theft[.]” Id. at 21. The trial court denied the motion for
dismissal.
1 Worthington’s testimony suggests that C & R Racing sells scrap radiators. See Tr. at 10 (“Q: … [D]o you know what the average cost of something like that is when it’s stolen? A: Uh, it just depends on what size radiator they took from all that, ’cause they vary from prices.”).
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 3 of 7 [6] Villarreal then testified on her own behalf, stating that her truck had broken
down and she asked her husband to call one of his friends for a ride to work.
The pickup truck driver gave them a ride and told them that he “needed to go
somewhere first.” Id. at 22. According to Villarreal, the driver stopped at C &
R Racing and started loading radiators into the truck, and she “told [her]
husband [they] needed to get out[t]a here.” Id. Villarreal stated that she and
her husband started walking away but were confronted by a man with a gun,
who hit her and pushed them toward the truck.
[7] After Villarreal rested, the State argued that Villarreal “was sitting there as a
lookout and when things got rough, she fabricated this story.” Id. at 26. The
trial court stated that it was “convinced that Ms. Villarreal was tacitly involved
in this. She may at a later time to abandon the attempt [sic] but on the evidence
is sufficient to sustain a conviction for attempt[ed] theft.” Id. at 30. The court
found her guilty and sentenced her to time served. This appeal ensued.
Discussion and Decision [8] Villarreal asserts that the evidence is insufficient to support her conviction.
“When reviewing the sufficiency of evidence, we do not reweigh evidence or
judge witness credibility; rather, we consider only the evidence and reasonable
inferences most favorable to the judgment.” Hudson v. State, 20 N.E.3d 900,
903 (Ind. Ct. App. 2014). “This review respects the factfinder’s exclusive
province to weigh conflicting evidence.” Id. (citation and quotation marks
omitted). “We must affirm if a reasonable trier of fact could find the defendant
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 4 of 7 guilty beyond a reasonable doubt based upon the probative evidence and
reasonable inferences drawn from the evidence presented.” Id.
[9] Class A misdemeanor theft is the knowing or intentional exertion of
unauthorized control over property of another person, with intent to deprive the
other person of any part of its value or use. Ind. Code § 35-43-4-2(a). “A
person attempts to commit a crime when, acting with the culpability required
for commission of the crime, the person engages in conduct that constitutes a
substantial step toward commission of the crime. An attempt to commit a
crime is a felony or misdemeanor of the same level or class as the crime
attempted.” Ind. Code § 35-41-5-1(a).
[10] In the charging information, the State alleged that Villarreal
did attempt to commit the crime of Theft, which is to knowingly or intentionally exert unauthorized control over the property of C & R Racing, to-wit: metal, with the intent to deprive C & R Racing of any part of the use or value of the property, by engaging in conduct which constitutes a substantial step toward the commission of said crime of Theft, that is: loading the metal into a truck[.]
Appellant’s App. at 12. Villarreal argues that “[t]he State’s witnesses both
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 29 2016, 10:18 am 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 Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Esmeralda Villarreal, February 29, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1507-CR-923 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven J. Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G07-1501-CM-2132
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 1 of 7 Case Summary [1] While her husband and another man loaded a pickup truck with scrap radiators
from a factory’s dumpster without the factory owner’s permission, Esmeralda
Villarreal sat in the truck cab facing the parking lot entrance. A factory
employee drove into the parking lot, saw the theft in progress, and blocked the
entrance with his vehicle. Police officers arrested Villarreal and the others at
the scene.
[2] The State alleged that Villarreal attempted to commit class A misdemeanor
theft by loading metal into the truck. At trial, Villarreal moved for involuntary
dismissal based on the lack of evidence that she had personally loaded metal
into the truck. The State argued that she had acted as a lookout for her
husband and the other man and therefore was guilty as an accomplice. The
trial court agreed.
[3] On appeal, Villarreal argues that her conviction should be reversed because the
State failed to prove that she loaded metal into the truck. The State argues that
the evidence is sufficient to sustain her conviction as an accomplice. We agree
with the State and therefore affirm.
Facts and Procedural History [4] On the morning of January 16, 2015, C & R Racing employee Robert
Worthington returned to his company’s factory in Indianapolis after making a
delivery. He saw a pickup truck parked next to a dumpster, with the truck cab
facing the parking lot entrance. Worthington saw one man lifting scrap
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 2 of 7 radiators out of the dumpster and another man loading them into the truck. 1
He also saw Villarreal sitting in the truck’s passenger seat. Worthington
blocked the parking lot entrance with his vehicle “so they couldn’t leave” and
went inside the factory to alert the owner. Tr. at 10. The owner went outside
to confront Villarreal and the two men, one of whom was her husband. Police
officers arrived within approximately five minutes and arrested Villarreal and
her companions.
[5] The State alleged that Villarreal committed class A misdemeanor attempted
theft by loading metal into the truck. At Villarreal’s bench trial, Worthington
and the arresting officer testified for the State. Worthington testified to the
foregoing facts, and the officer testified that Villarreal was sitting in the pickup
cab when she arrived at the factory. After the State rested, Villarreal moved for
involuntary dismissal under Indiana Trial Rule 41(B) based on the lack of
evidence that she had personally loaded metal into the truck. The State argued
that Villarreal “was actually there acting as a lookout” and that “[s]he doesn’t
have to actually be loading metal physically into the truck to get an accomplice
to the attempted theft[.]” Id. at 21. The trial court denied the motion for
dismissal.
1 Worthington’s testimony suggests that C & R Racing sells scrap radiators. See Tr. at 10 (“Q: … [D]o you know what the average cost of something like that is when it’s stolen? A: Uh, it just depends on what size radiator they took from all that, ’cause they vary from prices.”).
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 3 of 7 [6] Villarreal then testified on her own behalf, stating that her truck had broken
down and she asked her husband to call one of his friends for a ride to work.
The pickup truck driver gave them a ride and told them that he “needed to go
somewhere first.” Id. at 22. According to Villarreal, the driver stopped at C &
R Racing and started loading radiators into the truck, and she “told [her]
husband [they] needed to get out[t]a here.” Id. Villarreal stated that she and
her husband started walking away but were confronted by a man with a gun,
who hit her and pushed them toward the truck.
[7] After Villarreal rested, the State argued that Villarreal “was sitting there as a
lookout and when things got rough, she fabricated this story.” Id. at 26. The
trial court stated that it was “convinced that Ms. Villarreal was tacitly involved
in this. She may at a later time to abandon the attempt [sic] but on the evidence
is sufficient to sustain a conviction for attempt[ed] theft.” Id. at 30. The court
found her guilty and sentenced her to time served. This appeal ensued.
Discussion and Decision [8] Villarreal asserts that the evidence is insufficient to support her conviction.
“When reviewing the sufficiency of evidence, we do not reweigh evidence or
judge witness credibility; rather, we consider only the evidence and reasonable
inferences most favorable to the judgment.” Hudson v. State, 20 N.E.3d 900,
903 (Ind. Ct. App. 2014). “This review respects the factfinder’s exclusive
province to weigh conflicting evidence.” Id. (citation and quotation marks
omitted). “We must affirm if a reasonable trier of fact could find the defendant
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 4 of 7 guilty beyond a reasonable doubt based upon the probative evidence and
reasonable inferences drawn from the evidence presented.” Id.
[9] Class A misdemeanor theft is the knowing or intentional exertion of
unauthorized control over property of another person, with intent to deprive the
other person of any part of its value or use. Ind. Code § 35-43-4-2(a). “A
person attempts to commit a crime when, acting with the culpability required
for commission of the crime, the person engages in conduct that constitutes a
substantial step toward commission of the crime. An attempt to commit a
crime is a felony or misdemeanor of the same level or class as the crime
attempted.” Ind. Code § 35-41-5-1(a).
[10] In the charging information, the State alleged that Villarreal
did attempt to commit the crime of Theft, which is to knowingly or intentionally exert unauthorized control over the property of C & R Racing, to-wit: metal, with the intent to deprive C & R Racing of any part of the use or value of the property, by engaging in conduct which constitutes a substantial step toward the commission of said crime of Theft, that is: loading the metal into a truck[.]
Appellant’s App. at 12. Villarreal argues that “[t]he State’s witnesses both
testified that they never saw her outside of the pickup truck until she was
arrested” and that “[h]er conduct of sitting in the pickup truck fails to meet the
type of action necessary to find that she committed a substantial step in this
instance.” Appellant’s Br. at 9-10.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 5 of 7 [11] The State argues that the evidence is sufficient to sustain Villarreal’s conviction
as an accomplice. Indiana Code Section 35-41-2-4 provides, “A person who
knowingly or intentionally aids, induces, or causes another person to commit
an offense commits that offense, even if the other person: (1) has not been
prosecuted for the offense; (2) has not been convicted of the offense; or (3) has
been acquitted of the offense.” “It is well established that a person who aids
another in committing a crime is just as guilty as the actual perpetrator.” Green
v. State, 937 N.E.2d 923, 927 (Ind. Ct. App. 2010), trans. denied (2011).
[12] “To be convicted as an accomplice, it is not necessary for a defendant to have
participated in every element of the crime.” Id. Nevertheless, mere
acquiescence in the commission of the offense and mere presence at the crime
scene are insufficient to establish accomplice liability. Peterson v. State, 699
N.E.2d 701, 706 (Ind. Ct. App. 1998). “[P]resence may be considered along
with the defendant’s relation to the one engaged in the crime and the
defendant’s actions before, during, and after the commission of the crime.”
Green, 937 N.E.2d at 927; see also Peterson, 699 N.E.2d at 706 (“The particular
facts and circumstances of each case must be considered in determining
whether a person participated in the commission of an offense as an
accomplice.”). “[T]o sustain a conviction as an accomplice, there must be
evidence of the defendant’s affirmative conduct, either in the form of acts or
words, from which an inference of a common design or purpose to effect the
commission of a crime may be reasonably drawn.” Peterson, 669 N.E.2d at 706.
“[O]ne may be charged as a principal yet convicted on proof that he or she
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 6 of 7 aided another in the commission of a crime.” Wise v. State, 719 N.E.2d 1192,
1198 (Ind. 1999).
[13] The State’s evidence established that while her husband and another man
loaded radiators into the pickup truck, Villarreal was sitting in the truck cab
facing the parking lot entrance that Worthington fortuitously blocked with his
vehicle. She was still inside the cab when the police arrived approximately five
minutes later. The State argues that because Villarreal’s husband was involved,
“it is a reasonable inference that [she] would be a lookout to prevent him from
being caught.” Appellee’s Br. at 10. We agree. Moreover, Villarreal’s conduct
supports an inference of a common design or purpose to effect the commission
of theft by her husband. The trial court credited the State’s version of events
over Villarreal’s version, and we may not second-guess that credibility
determination or reweigh the evidence on appeal. We conclude that a
reasonable trier of fact could find Villarreal guilty as an accomplice beyond a
reasonable doubt based on the probative evidence and the reasonable inferences
drawn therefrom. Accordingly, we affirm her conviction.
[14] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 7 of 7