MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 28 2017, 7:02 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana
Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
George Stigger, June 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1612-CR-2822 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff. Judge The Honorable Peggy R. Hart, Magistrate Trial Court Cause No. 49G10-1602-CM-5860
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 1 of 6 Case Summary [1] On February 6, 2016, Appellant-Defendant George Stigger entered a Lowe’s
store in Indianapolis, selected a faucet from the plumbing aisle, and
fraudulently returned the faucet in exchange for a store gift/merchandise card
valued at over $220.00. Stigger was subsequently charged with and convicted
of Class A misdemeanor theft. On appeal, Stigger contends that the evidence is
insufficient to sustain his conviction. Concluding otherwise, we affirm.
Facts and Procedural History [2] According to the store policy of Lowe’s, when a customer wishes to make a
return but does not have a receipt, the customer must present a valid driver’s
license/identification card to process the return. It often raises a red flag when
a record of the original purchase cannot be located because the original
purchase was allegedly made with cash. For such returns valued at over one
hundred dollars, loss prevention officers automatically review store surveillance
footage of the transaction to verify that the customer entered the store with the
merchandise in question.
[3] On February 6, 2016, Stigger visited an Indianapolis-area Lowe’s store with his
friend, Eric Parson. Upon arriving at the store, Stigger and Parson entered
through separate entrances. Neither Stigger nor Parson was holding any
merchandise when they entered the store.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 2 of 6 [4] Approximately two minutes after entering the store, Stigger and Parson met in
the plumbing aisle. Parson selected a Delta faucet from the display and placed
it in his cart. Approximately eight minutes later, Stigger and Parson were
observed walking toward the front of the store. By this time, the faucet had
been placed in a gray plastic Lowe’s bag.
[5] Stigger approached the customer service desk and informed Lowe’s associate
Amy Fry that he needed to return the faucet but did not have a receipt. Stigger
presented Fry with his driver’s license so that Fry could process the return. Fry
entered Stigger’s information into the store’s system. Fry completed the return
and presented Stigger with a gift/merchandise card containing $245.03 1 in store
credit. Stigger and Parson then left the store.
[6] Subsequent review of the transaction confirmed that neither Stigger nor Parson
had been in possession of the faucet when they entered the store. The review
also confirmed that the faucet in question was stocked in the plumbing aisle,
i.e., the aisle in which Stigger and Parson were observed selecting the faucet. In
addition, the review revealed that the information gleaned from the
identification provided by Stigger matched Stigger’s records with the Indiana
Bureau of Motor Vehicles.
1 The electronic receipt generated from the return indicates that Stigger was given a store gift/merchandise card valued at $245.03, with $229.00 for the value of the faucet and $16.03 for Indiana sales tax that would have been paid on the original purchase.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 3 of 6 [7] On February 17, 2016, Appellee-Plaintiff the State of Indiana (“the State”)
charged Stigger with one count of Class A misdemeanor theft. On November
14, 2016, following a jury trial, Stigger was found guilty as charged. The trial
court subsequently sentenced Stigger to a sixty-day term with credit for time
served and the remaining fifty-eight days to be served on home detention. This
appeal follows.
Discussion and Decision [8] Stigger contends that the evidence is insufficient to sustain his conviction for
Class A misdemeanor theft.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 4 of 6 presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
[9] “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 A misdemeanor.” Ind. Code § 35-43-
4-2(a). “A person 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). “A person engages in conduct ‘intentionally’ if, when he engages in
the conduct, it is his conscious objective to do so. Ind. Code § 35-41-2-2(a).
[10] The charging information alleges that
On or about February 6, 2016, [Stigger] did knowingly or intentionally exert unauthorized control over the property of LOWE[’]S, to-wit: merchandise card with $229.00 in value, with the intent to deprive LOWE[’]S of any part of the use or value of the property.
Appellant’s App. Vol. II – Confidential, p. 17. Thus, in order to prove that
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 28 2017, 7:02 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana
Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
George Stigger, June 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1612-CR-2822 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff. Judge The Honorable Peggy R. Hart, Magistrate Trial Court Cause No. 49G10-1602-CM-5860
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 1 of 6 Case Summary [1] On February 6, 2016, Appellant-Defendant George Stigger entered a Lowe’s
store in Indianapolis, selected a faucet from the plumbing aisle, and
fraudulently returned the faucet in exchange for a store gift/merchandise card
valued at over $220.00. Stigger was subsequently charged with and convicted
of Class A misdemeanor theft. On appeal, Stigger contends that the evidence is
insufficient to sustain his conviction. Concluding otherwise, we affirm.
Facts and Procedural History [2] According to the store policy of Lowe’s, when a customer wishes to make a
return but does not have a receipt, the customer must present a valid driver’s
license/identification card to process the return. It often raises a red flag when
a record of the original purchase cannot be located because the original
purchase was allegedly made with cash. For such returns valued at over one
hundred dollars, loss prevention officers automatically review store surveillance
footage of the transaction to verify that the customer entered the store with the
merchandise in question.
[3] On February 6, 2016, Stigger visited an Indianapolis-area Lowe’s store with his
friend, Eric Parson. Upon arriving at the store, Stigger and Parson entered
through separate entrances. Neither Stigger nor Parson was holding any
merchandise when they entered the store.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 2 of 6 [4] Approximately two minutes after entering the store, Stigger and Parson met in
the plumbing aisle. Parson selected a Delta faucet from the display and placed
it in his cart. Approximately eight minutes later, Stigger and Parson were
observed walking toward the front of the store. By this time, the faucet had
been placed in a gray plastic Lowe’s bag.
[5] Stigger approached the customer service desk and informed Lowe’s associate
Amy Fry that he needed to return the faucet but did not have a receipt. Stigger
presented Fry with his driver’s license so that Fry could process the return. Fry
entered Stigger’s information into the store’s system. Fry completed the return
and presented Stigger with a gift/merchandise card containing $245.03 1 in store
credit. Stigger and Parson then left the store.
[6] Subsequent review of the transaction confirmed that neither Stigger nor Parson
had been in possession of the faucet when they entered the store. The review
also confirmed that the faucet in question was stocked in the plumbing aisle,
i.e., the aisle in which Stigger and Parson were observed selecting the faucet. In
addition, the review revealed that the information gleaned from the
identification provided by Stigger matched Stigger’s records with the Indiana
Bureau of Motor Vehicles.
1 The electronic receipt generated from the return indicates that Stigger was given a store gift/merchandise card valued at $245.03, with $229.00 for the value of the faucet and $16.03 for Indiana sales tax that would have been paid on the original purchase.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 3 of 6 [7] On February 17, 2016, Appellee-Plaintiff the State of Indiana (“the State”)
charged Stigger with one count of Class A misdemeanor theft. On November
14, 2016, following a jury trial, Stigger was found guilty as charged. The trial
court subsequently sentenced Stigger to a sixty-day term with credit for time
served and the remaining fifty-eight days to be served on home detention. This
appeal follows.
Discussion and Decision [8] Stigger contends that the evidence is insufficient to sustain his conviction for
Class A misdemeanor theft.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 4 of 6 presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
[9] “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 A misdemeanor.” Ind. Code § 35-43-
4-2(a). “A person 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). “A person engages in conduct ‘intentionally’ if, when he engages in
the conduct, it is his conscious objective to do so. Ind. Code § 35-41-2-2(a).
[10] The charging information alleges that
On or about February 6, 2016, [Stigger] did knowingly or intentionally exert unauthorized control over the property of LOWE[’]S, to-wit: merchandise card with $229.00 in value, with the intent to deprive LOWE[’]S of any part of the use or value of the property.
Appellant’s App. Vol. II – Confidential, p. 17. Thus, in order to prove that
Stigger committed the charged Class A felony theft, the State was required to
prove that Stigger knowingly or intentionally exerted unauthorized control over
a Lowe’s gift/merchandise card containing $229.00 in Lowe’s store credit.
[11] Store surveillance footage from the date in question indicates that neither
Stigger nor Parson had the faucet on their person when they entered the store or
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 5 of 6 the aisle where the faucet was stocked. The store surveillance footage indicates,
however, that upon exiting the aisle in question, Stigger and Parson have the
faucet in a gray Lowe’s plastic bag in their shopping cart. Stigger then
approached Fry and indicated that he needed to make a return for which he did
not have a receipt. Stigger presented Fry with the faucet and his driver’s
license, and Fry completed the return. Because Stigger indicated that the
original purchase had been made with cash, Fry gave Stigger a Lowe’s
gift/merchandise card worth the $229.00 value of the faucet plus tax. Stigger
and Parson then left the store with the gift/merchandise card.
[12] Upon review, we conclude that the evidence is sufficient to sustain Stigger’s
conviction for Class A misdemeanor theft. Stigger’s claim to the contrary
amounts to nothing more than an invitation for this court to reweigh the
evidence, which we will not do. See Stewart, 768 N.E.2d at 435.
[13] The judgment of the trial court is affirmed.
Najam, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017 Page 6 of 6