Glenn D. McDonald v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 15, 2020
• Docket: 20A-CR-530
• 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 Sep 15 2020, 8:45 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark F. James Curtis T. Hill, Jr. Anderson Agostino & Keller PC Attorney General of Indiana South Bend, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Glenn D. McDonald, September 15, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-530 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jenny Pitts Manier, Appellee-Plaintiff. Judge The Honorable Julie Verheye, Magistrate Trial Court Cause No. 71D05-1906-CM-2206

Barteau, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-530 | September 15, 2020 Page 1 of 5 Statement of the Case [1] Glenn McDonald appeals his conviction of conversion, a Class A 1 misdemeanor. We affirm.

Issue [2] McDonald presents one issue for our review: whether the evidence was

sufficient to sustain his conviction.

Facts and Procedural History [3] In April 2019, McDonald was seen on surveillance cameras concealing

merchandise in his jacket at a TJ Maxx store and then leaving the store without

purchasing the merchandise. Matt Wynn, the store’s loss prevention officer,

approached McDonald after he had exited the store. Although Wynn identified

himself and asked McDonald to return to the store, McDonald continued to his

car and drove away. Wynn was able to get the license plate number of the car

and give it to the police so they could identify him.

[4] Based upon this incident, McDonald was charged with conversion. At a bench

trial, the court found him guilty and sentenced him to ninety days, all

suspended, with 365 days of probation during which he was to perform 30

hours of community service. McDonald now appeals his conviction.

1 Ind. Code § 35-43-4-3 (2014).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-530 | September 15, 2020 Page 2 of 5 Discussion and Decision [5] When we review a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.

State, 29 N.E.3d 126, 131 (Ind. Ct. App. 2015), trans. denied. Instead, we

consider only the evidence most favorable to the judgment and any reasonable

inferences drawn therefrom. Id. If there is substantial evidence of probative

value from which a reasonable fact-finder could have found the defendant

guilty beyond a reasonable doubt, the judgment will not be disturbed. Labarr v.

State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).

[6] McDonald was charged under Indiana Code section 35-43-4-3(a), which

provides that a person who knowingly or intentionally exerts unauthorized

control over property of another person commits criminal conversion.

McDonald asserts that his conviction cannot stand because “there is no

evidence [he] exerted any control over the property of TJ Maxx” as “there was

no proof that [he] carried any property belonging to TJ Maxx out of the store.”

Appellant’s Br. p. 6.

[7] Wynn testified at trial that he was in his office watching the store’s surveillance

cameras when McDonald was shopping in the store. McDonald’s presence

caught his attention because he recognized McDonald as having been involved

in something in the store a few days prior. Wynn testified that he watched the

cameras as McDonald went to the infants department and began removing

clothes from the hangers. McDonald then went to a different department

Court of Appeals of Indiana | Memorandum Decision 20A-CR-530 | September 15, 2020 Page 3 of 5 before returning to the infants area where he again removed clothes from the

hangers. As Wynn continued watching him, McDonald concealed the clothing

in his jacket and made no attempt to pay for the items. Wynn testified that he

left his office and approached McDonald after he had exited the store. He

identified himself and asked McDonald to return to the store, but McDonald

just looked at him and then continued walking to his car. McDonald got in his

car and left. Wynn also testified that he did not recall McDonald or his two

companions having any bags when they left the store.

[8] Additionally, the parties stipulated to the admission of Exhibit 1, which is a disc

containing video from the store surveillance cameras. The video was shown at

trial, and it depicts McDonald, a female, and two young males entering the

store. The group first looks at rugs before McDonald, the female, and one of

the males go to the infants department and begin looking at clothes hanging on

the top row of a double hanging rack. McDonald removes some clothes from

the hangers, looks around, and places the clothes somewhere below the top row

of the hanging rack. The view of the camera below the top hanging rack was

obstructed by a store display, but when McDonald brings his hands back into

view, they are empty. The three then go to the men’s department and look at

items there. They return to the infants department where McDonald removes

another outfit from its hanger. He then takes the hanging clothes on either side

of the now empty hanger and pulls them toward the empty hanger. After first

quickly looking over his shoulder, he stuffs the clothes into his jacket. He and

Court of Appeals of Indiana | Memorandum Decision 20A-CR-530 | September 15, 2020 Page 4 of 5 his companions then walk down the main aisle of the store, stopping briefly to

look at something before exiting.

[9] Indiana Code section 35-43-4-1(a) (1991) defines “exert control over property”

as “to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey,

encumber, or possess property.” Subsection (b) states, in part, “a person’s

control over property of another person is ‘unauthorized’ if it is exerted . . .

without the other person’s consent . . . [or] in a manner or to an extent other

than that to which the other person has consented.” The evidence most

favorable to the judgment here shows that McDonald exerted unauthorized

control over the property of TJ Maxx when he possessed and concealed the

infant clothing inside his jacket in a manner not authorized by TJ Maxx and

then exited the store, passing all points of checkout without attempting to pay

for the items.

Conclusion [10] The evidence is sufficient to support the trial court’s conclusion that McDonald

knowingly or intentionally exerted unauthorized control over the property of TJ

Maxx.

[11] Affirmed.

Bailey, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-530 | September 15, 2020 Page 5 of 5