MEMORANDUM DECISION Jan 29 2016, 8:21 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Ellen F. Hurley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Hubert Charles, January 29, 2016
Appellant-Defendant, Court of Appeals Case No. 49A02-1507-CR-730 v. Appeal from the Marion Superior Court. The Honorable Stanley E. Kroh, State of Indiana, Magistrate. Appellee-Plaintiff. Cause No. 49G03-1410-F3-46189
Darden, Senior Judge
Statement of the Case [1] Hubert Charles attacked a visitor to his apartment and took her prescription
glasses. He appeals his conviction of theft, a Class A misdemeanor. Ind. Code
§ 35-43-4-2 (2014). We affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 1 of 7 Issue [2] Charles raises one issue, which we restate as: whether there is sufficient
evidence to support his theft conviction.
Facts and Procedural History [3] Jessica Cartwright and Charles met online. They became friends over the next
several months, communicating at least every other day. They also met in
person at Charles’ apartment on one occasion.
[4] On July 21, 2014, Charles told Cartwright that his request for unemployment
benefits had been approved and he expected to receive back pay. Cartwright
said that her request for unemployment benefits had not yet been approved and
she did not have money for groceries. Charles said that he would give her
money and invited her to his apartment.
[5] When Cartwright arrived at Charles’ apartment, he “seemed kind of off” and
was moving around the apartment. Id. at 16. Charles twice offered Cartwright
an alcoholic drink, but she declined. Next, he said the money was in his
bedroom and asked her to go there with him. Cartwright suggested that
Charles go get the money by himself, but he insisted that she accompany him to
the bedroom.
[6] When they entered the bedroom, Cartwright sat on the bed, and Charles asked
if she wanted to “mess around.” Id. at 18. She said no. He became frustrated
and seemed “disoriented.” Id. Cartwright told Charles not to worry about
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 2 of 7 giving her any money, she would just leave. He said the money was not a
problem.
[7] Next, Cartwright told Charles she needed to use his bathroom. He walked her
to his bathroom and stood in front of the open doorway. When Cartwright
tried to close the door, Charles stopped her. After further discussion, she
convinced him to let her close the door. While she was in the bathroom, he
repeatedly opened the door and looked inside.
[8] After Cartwright was finished in the bathroom, she told Charles she needed to
leave. He said that he would get her money and invited her to return to his
bedroom. Cartwright returned to the bedroom, and Charles closed the door
and went to his closet. Next, he approached her, took her prescription glasses
off of her face without her permission, and placed the glasses in his pocket.
Charles then hit Cartwright on the head with a liquor bottle. As she raised her
hands to protect her head, he hit her in the torso twice with his hand. Charles
asked her, “Why are you doing this, why are you doing this to me?” Id. at 22.
[9] Cartwright tried to calm Charles down and asked him to sit on the bed. They
both sat down, and he was “kind of babbling.” Id. at 23. Charles stood up,
leaned over Cartwright, and tried to pull her pants down. She resisted, and he
attempted to hit her again. When Charles stopped trying to pull Cartwright’s
pants down, she stood up and tried to leave the bedroom. He got up and tried
to hold the bedroom door closed, but she put her foot in the doorway and
struggled with him. Charles shoved Cartwright into a wall, but he also
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 3 of 7 stumbled back, and she took the opportunity to leave the bedroom and flee
from the apartment.
[10] Cartwright got into her car, drove around the corner, and called the police.
Several officers arrived and spoke with her. One of them went to Charles’
apartment, but no one responded when the officer knocked on the door.
Cartwright declined an ambulance and later drove herself to the hospital.
[11] That evening, Charles sent Cartwright a series of texts accusing her of being a
liar, a thief, and a prostitute. Charles stopped texting her only after she told
him the police were monitoring her phone.
[12] On July 29, 2014, Cartwright spoke with a detective about the incident, and she
mentioned that Charles took her prescription glasses. The next day, at the
direction of the detective, Cartwright texted Charles to ask him to return her
glasses. He said he would give them to her if she returned to his apartment.
The detective obtained a search warrant for Charles’ apartment and executed
the warrant with a team of officers. No one responded when the officers
knocked on Charles’ front door. The officers forced the door open, found
Charles in the apartment, and handcuffed him. He had Cartwright’s glasses in
his pocket.
[13] The State charged Charles with attempted rape, a Level 3 felony; criminal
confinement resulting in bodily injury, a Level 5 felony; battery resulting in
bodily injury, a Class A misdemeanor; and theft, a Class A misdemeanor. The
State later dismissed the attempted rape charge. The parties agreed to a bench
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 4 of 7 trial. The court determined that Charles was guilty of the three remaining
charges and imposed a sentence. This appeal followed.
Discussion and Decision [14] Charles claims there is insufficient evidence to support the theft conviction.
When we review the sufficiency of the evidence, we consider only the probative
evidence and reasonable inferences supporting the verdict. Buelna v. State, 20
N.E.3d 137, 141 (Ind. 2014). We consider conflicting evidence most favorably
to the trial court’s judgment. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).
We neither reweigh the evidence nor assess witness credibility. Buelna, 20
N.E.3d at 141. We will affirm the conviction unless no reasonable factfinder
could conclude the elements of the crime were proven beyond a reasonable
doubt. Id.
[15] In order to convict Charles of theft as a Class A misdemeanor, the State was
required to prove beyond a reasonable doubt that Charles (1) knowingly or
intentionally (2) exerted unauthorized control (3) over Cartwright’s glasses (4)
with intent to deprive Cartwright of any part of the glasses’ value or use. Ind.
Code § 35-43-4-2. Indiana’s theft statute does not require the State to prove that
the defendant intended to permanently deprive the victim of the use of the
property. Bennett v. State, 878 N.E.2d 836, 836 (Ind. 2008). Because intent is a
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MEMORANDUM DECISION Jan 29 2016, 8:21 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Ellen F. Hurley Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Hubert Charles, January 29, 2016
Appellant-Defendant, Court of Appeals Case No. 49A02-1507-CR-730 v. Appeal from the Marion Superior Court. The Honorable Stanley E. Kroh, State of Indiana, Magistrate. Appellee-Plaintiff. Cause No. 49G03-1410-F3-46189
Darden, Senior Judge
Statement of the Case [1] Hubert Charles attacked a visitor to his apartment and took her prescription
glasses. He appeals his conviction of theft, a Class A misdemeanor. Ind. Code
§ 35-43-4-2 (2014). We affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 1 of 7 Issue [2] Charles raises one issue, which we restate as: whether there is sufficient
evidence to support his theft conviction.
Facts and Procedural History [3] Jessica Cartwright and Charles met online. They became friends over the next
several months, communicating at least every other day. They also met in
person at Charles’ apartment on one occasion.
[4] On July 21, 2014, Charles told Cartwright that his request for unemployment
benefits had been approved and he expected to receive back pay. Cartwright
said that her request for unemployment benefits had not yet been approved and
she did not have money for groceries. Charles said that he would give her
money and invited her to his apartment.
[5] When Cartwright arrived at Charles’ apartment, he “seemed kind of off” and
was moving around the apartment. Id. at 16. Charles twice offered Cartwright
an alcoholic drink, but she declined. Next, he said the money was in his
bedroom and asked her to go there with him. Cartwright suggested that
Charles go get the money by himself, but he insisted that she accompany him to
the bedroom.
[6] When they entered the bedroom, Cartwright sat on the bed, and Charles asked
if she wanted to “mess around.” Id. at 18. She said no. He became frustrated
and seemed “disoriented.” Id. Cartwright told Charles not to worry about
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 2 of 7 giving her any money, she would just leave. He said the money was not a
problem.
[7] Next, Cartwright told Charles she needed to use his bathroom. He walked her
to his bathroom and stood in front of the open doorway. When Cartwright
tried to close the door, Charles stopped her. After further discussion, she
convinced him to let her close the door. While she was in the bathroom, he
repeatedly opened the door and looked inside.
[8] After Cartwright was finished in the bathroom, she told Charles she needed to
leave. He said that he would get her money and invited her to return to his
bedroom. Cartwright returned to the bedroom, and Charles closed the door
and went to his closet. Next, he approached her, took her prescription glasses
off of her face without her permission, and placed the glasses in his pocket.
Charles then hit Cartwright on the head with a liquor bottle. As she raised her
hands to protect her head, he hit her in the torso twice with his hand. Charles
asked her, “Why are you doing this, why are you doing this to me?” Id. at 22.
[9] Cartwright tried to calm Charles down and asked him to sit on the bed. They
both sat down, and he was “kind of babbling.” Id. at 23. Charles stood up,
leaned over Cartwright, and tried to pull her pants down. She resisted, and he
attempted to hit her again. When Charles stopped trying to pull Cartwright’s
pants down, she stood up and tried to leave the bedroom. He got up and tried
to hold the bedroom door closed, but she put her foot in the doorway and
struggled with him. Charles shoved Cartwright into a wall, but he also
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 3 of 7 stumbled back, and she took the opportunity to leave the bedroom and flee
from the apartment.
[10] Cartwright got into her car, drove around the corner, and called the police.
Several officers arrived and spoke with her. One of them went to Charles’
apartment, but no one responded when the officer knocked on the door.
Cartwright declined an ambulance and later drove herself to the hospital.
[11] That evening, Charles sent Cartwright a series of texts accusing her of being a
liar, a thief, and a prostitute. Charles stopped texting her only after she told
him the police were monitoring her phone.
[12] On July 29, 2014, Cartwright spoke with a detective about the incident, and she
mentioned that Charles took her prescription glasses. The next day, at the
direction of the detective, Cartwright texted Charles to ask him to return her
glasses. He said he would give them to her if she returned to his apartment.
The detective obtained a search warrant for Charles’ apartment and executed
the warrant with a team of officers. No one responded when the officers
knocked on Charles’ front door. The officers forced the door open, found
Charles in the apartment, and handcuffed him. He had Cartwright’s glasses in
his pocket.
[13] The State charged Charles with attempted rape, a Level 3 felony; criminal
confinement resulting in bodily injury, a Level 5 felony; battery resulting in
bodily injury, a Class A misdemeanor; and theft, a Class A misdemeanor. The
State later dismissed the attempted rape charge. The parties agreed to a bench
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 4 of 7 trial. The court determined that Charles was guilty of the three remaining
charges and imposed a sentence. This appeal followed.
Discussion and Decision [14] Charles claims there is insufficient evidence to support the theft conviction.
When we review the sufficiency of the evidence, we consider only the probative
evidence and reasonable inferences supporting the verdict. Buelna v. State, 20
N.E.3d 137, 141 (Ind. 2014). We consider conflicting evidence most favorably
to the trial court’s judgment. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).
We neither reweigh the evidence nor assess witness credibility. Buelna, 20
N.E.3d at 141. We will affirm the conviction unless no reasonable factfinder
could conclude the elements of the crime were proven beyond a reasonable
doubt. Id.
[15] In order to convict Charles of theft as a Class A misdemeanor, the State was
required to prove beyond a reasonable doubt that Charles (1) knowingly or
intentionally (2) exerted unauthorized control (3) over Cartwright’s glasses (4)
with intent to deprive Cartwright of any part of the glasses’ value or use. Ind.
Code § 35-43-4-2. Indiana’s theft statute does not require the State to prove that
the defendant intended to permanently deprive the victim of the use of the
property. Bennett v. State, 878 N.E.2d 836, 836 (Ind. 2008). Because intent is a
mental state, the fact-finder often must resort to reasonable inferences from the
surrounding circumstances, including the defendant’s conduct, to determine
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 5 of 7 whether there is a showing of the requisite criminal intent. Diallo v. State, 928
N.E.2d 250, 253 (Ind. Ct. App. 2010).
[16] Charles removed Cartwright’s prescription eyeglasses from her face and put
them in his pocket immediately before he attacked her. He did not have
Cartwright’s permission to take her glasses. Charles kept the glasses after
Cartwright fled from the apartment, and she did not get her glasses back until
two weeks later, when the police took Charles into custody and found the
glasses in his pocket.
[17] Charles argues that he intended to give Cartwright’s glasses back but lacked an
opportunity. In support of his argument, he notes that when Cartwright texted
him two weeks after the attack to ask for her glasses, he said he would give
them back if she returned to his apartment. This argument is a request to
reweigh the evidence. A finder of fact could reasonably infer from Charles’
unauthorized removal of Cartwright’s glasses from her person that he intended
to deprive her of the use of the glasses for a period of time. After Charles
hindered Cartwright’s vision, he immediately attacked her and caused her to
flee the apartment for her own safety. Charles repeatedly texted Cartwright that
night, but he never offered to return the glasses. Although Charles later offered
to return the glasses, he required Cartwright to return to his apartment. A
finder of fact could reasonably infer, in light of Charles’ prior attack on
Cartwright, that his offer was not genuine and was merely a ruse intended to
again lure her into a vulnerable position. The evidence is sufficient to support
Charles’ conviction of theft.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 6 of 7 Conclusion [18] For the foregoing reasons, we affirm the judgment of the trial court.
[19] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-730 | January 29, 2016 Page 7 of 7