Jamar Sheets v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 6, 2016
• Docket: 32A04-1512-CR-2190
• Status: Published

Opinion

FILED MEMORANDUM DECISION Jul 06 2016, 5:54 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court

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 Paula M. Sauer Gregory F. Zoeller Danville, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jamar Sheets, July 6, 2016 Appellant-Defendant, Court of Appeals Case No. 32A04-1512-CR-2190 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Mark A. Smith, Judge Trial Court Cause No. 32D04-1409-F6-200

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 1 of 10 [1] Jamar Sheets (“Sheets”) was convicted after a jury trial of theft1 as a Level 6

felony. He appeals, raising the following restated issue for our review: whether

the State presented sufficient evidence to support his conviction for theft,

specifically (1) whether he intended to deprive the victim of the value or use of a

wallet and cell phone, and (2) whether he exerted unauthorized control over the

property.

[2] We affirm.

Facts and Procedural History [3] Around 6:15 a.m. on September 13, 2014, Steve Krause (“Krause”), his

daughter, and some of his co-workers from the Indiana Department of

Correction were on their way to a softball tournament at Hummel Park in

Plainfield, Indiana. They stopped at a nearby McDonald’s restaurant to eat

breakfast. Krause approached the counter to order, and because he was

wearing sweatpants with no pockets, he placed his wallet and cell phone on the

counter. When his food was ready, Krause sat down at one of the tables and

began eating his breakfast; however, he had accidentally left his wallet and cell

phone on the counter.

[4] A short time later, Sheets and his co-worker approached the counter to order

and noticed the wallet and cell phone lying there. Sheets put both items in his

1 See Ind. Code § 35-43-4-2.

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 2 of 10 jacket pocket, and, after receiving the food his co-worker ordered, he and his

co-worker returned to work. Sheets left the wallet and cell phone in his truck.

[5] After only taking a few bites of his breakfast, Krause realized that he had

accidentally left his wallet and cell phone at the counter. He went to the

counter, noticed his belongings were not there, and asked an employee if they

had been turned in. Krause and his co-workers then searched the restaurant,

but they were unable to locate the items. Krause called the police, who came to

the restaurant and took a report. After speaking with the police, Krause went to

the softball tournament. About thirty minutes after his belongings were taken,

Krause’s girlfriend notified him that someone had posted a message to Krause

on his Facebook account, which stated, “your phone is [sic] good hands now

and oh by the way he is a donor.” Tr. at 160, 170. A second post was also

made, but Krause could not remember what it said. Neither of the posts

contained any identifying information as to how and where Krause could

retrieve his belongings. After seeing the Facebook post, Krause immediately

cancelled his credit cards and deactivated his cell phone.

[6] Later that day, Plainfield Police Department Sergeant Chad Parks (“Sergeant

Parks”) went back to the McDonald’s to retrieve surveillance video of the

restaurant from that morning. Sergeant Parks viewed the video and observed

Sheets pick up Krause’s wallet and cell phone and put them into his jacket

pocket. The manager of the restaurant, Angela Pruitt (“Pruitt”), recognized

Sheets as a regular customer and agreed to call the police if she saw him again.

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 3 of 10 [7] After work that day, Sheets went to his mother’s house to pick up his children

and told his mother about finding the wallet and cell phone. Sheets removed all

of the contents, but the cash from the wallet, including Krause’s debit cards,

and put the items in two separate envelopes addressed to Krause’s home

address. Several days later, Krause received the envelopes from Sheets. The

envelopes had no identifying information and did not contain Krause’s wallet

or cell phone. Krause called Sergeant Parks to update him regarding this.

[8] Approximately ten days after Sheets took Krause’s belongings, Sergeant Parks

received a call from Pruitt. She told Sergeant Parks that Sheets had come back

into the McDonald’s, and she gave Sergeant Parks a description of Sheets’s

vehicle and his license plate number. A few days later, while out patrolling,

Sergeant Parks saw Sheets’s vehicle pull into a gas station. Sergeant Parks

arrested Sheets at that time. Krause’s cell phone was recovered, but his wallet

and the cash from inside the wallet were never recovered.

[9] On September 24, 2014, the State charged Sheets with theft as a Class A

misdemeanor and theft as a Level 6 felony. On August 24, 2015, a jury trial

occurred, at the conclusion of which, Sheets was found guilty as charged. The

trial court entered judgment on one count of theft as a Level 6 felony and

sentenced Sheets to 730 days with 728 days suspended and credit for time

served. Sheets now appeals.

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 4 of 10 Discussion and Decision [10] The deferential standard of review for sufficiency claims is well settled. When

we review the sufficiency of evidence to support a conviction, we do not

reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

evidence most favorable to the verdict and the reasonable inferences that can be

drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

2014), trans. denied. We also consider conflicting evidence in the light most

favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

App. 2013), trans. denied. We will not disturb the jury’s verdict if there is

substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.

We will affirm unless no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.

2012). As the reviewing court, we respect “the jury’s exclusive province to

weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

[11] Sheets argues that insufficient evidence was presented to support his conviction

for theft. In order to convict him of theft as a Level 6 felony, the State was

required to prove beyond a reasonable doubt that Sheets knowingly or

intentionally exerted unauthorized control over Krause’s property, with intent

to deprive Krause of any part of its value or use and that Sheets had a prior

unrelated conviction for either theft or conversion. Ind. Code § 35-43-4-

2(a)(1)(C).

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 5 of 10 [12] Sheets first contends that the State failed to present sufficient evidence to

support his conviction for theft because there was insufficient evidence that he

intended to deprive Krause of the use or value of his wallet and cell phone,

arguing that his behavior did not support such a conclusion. He maintains that

the evidence showed that he did not use or attempt to use Krause’s debit cards

and that he did not use, sell, or dispose of Krause’s cell phone. Sheets also

alleges that the evidence established that he mailed the contents of Krause’s

wallet to him, and Sheets claims that he told his mother to include a note with

Sheets’s name and number in the envelopes. Sheets further asserts that the

evidence showed that he made no effort to dispose of Krause’s property or

comingle it with his own property. Sheets argues that this evidence

demonstrated that he did not intend to deprive Krause of his property.

[13] “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).

Intent can be inferred from a defendant’s conduct and the natural and usual

sequence to which such conduct logically and reasonably points. Lee v. State,

973 N.E.2d 1207, 1210 (Ind. Ct. App. 2012), trans. denied. The fact finder is

entitled to infer intent from the surrounding circumstances. Id. Intent may be

proved by circumstantial evidence. Id.

[14] In the present case, the evidence most favorable to the verdict shows that, a

short time after Krause accidentally left his wallet and cell phone on the counter

at McDonald’s, Sheets picked up the items and placed them into the pocket of

his jacket. Sheets did not alert the McDonald’s staff to the items he had found,

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 6 of 10 hand the items over to the staff to hold them for the owner, or leave his name

and contact information in case the owner came back looking for his

belongings. Further, even though Sheets had access to Krause’s cell phone and

the contact information contained on the phone, he did not attempt to notify

either Krause or any of his friends that he had found Krause’s belongings.

Additionally, although Sheets mailed items from Krause’s wallet back to

Krause, he never returned Krause’s wallet and cell phone nor did he include

any identifying information on the outside of the envelope or inside the

envelope that would have enabled Krause to contact him. The evidence

presented showed that Sheets never contacted the police regarding finding

Krause’s property, and despite having Krause’s address, Sheets never attempted

to go to the residence to return the items. Krause’s cell phone was not

recovered until after Sheets’s arrest, which was over ten days after Sheets took

the items. Krause’s wallet and the cash inside were never recovered.

[15] Sheets claims that he asked his mother to include a sticky note with his number

on it so Krause could contact him. Tr. at 229, 243, 254; Appellant’s Br. at 10.

However, the envelope and its contents was admitted into evidence at trial, and

no note was contained in the envelope. Tr. at 165-66; State’s Exs. 1-4. Under

our standard of review, we are constrained to only look to the evidence most

favorable to the verdict and to consider conflicting evidence in the light most

favorable to the trial court’s ruling. Fuentes, 10 N.E.3d at 75; Oster, 992 N.E.2d

at 875. Therefore, viewing the evidence presented at trial under this standard,

we conclude that the State presented sufficient evidence that Sheets intended to

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 7 of 10 deprive Krause of the use or value of his property. Sheets’s arguments to the

contrary are requests for this court to reweigh the evidence and judge the

credibility of the witnesses, which we cannot do. Boggs, 928 N.E.2d at 864.

[16] Sheets next argues that the State presented insufficient evidence to support his

conviction because the evidence showed that he had a reasonable belief that his

control over Krause’s property was authorized. In order to convict him, the

State had to prove that he knowingly or intentionally exerted unauthorized

control over Krause’s property. Ind. Code § 35-43-4-2(a). Sheets contends that,

because when he took Krause’s property he was picking up lost property and

attempting to return it, he had Krause’s implied consent to control Krause’s

belongings until the items could be returned to Krause. Therefore, Sheets

asserts that he did not exert unauthorized control over Krause’s property.

[17] The term “unauthorized” is defined in Indiana Code section 35-43-4-1.

Pertinent to the present case, “a person’s control over property of another

person is ‘unauthorized’ if it is exerted: (1) without the other person’s consent.”

Ind. Code § 35-43-4-1(b)(1).

[18] Here, the evidence most favorable to the verdict showed that when Sheets

picked up Krause’s wallet and cell phone from the counter at McDonald’s, he

concealed the items in the pocket of his jacket. Krause testified at trial that he

did not give anyone authorization to have his wallet or cell phone. Tr. at 167.

Further, when Krause determined that his belongings had been stolen and not

lost, he immediately cancelled his credit and debit cards and his cell phone

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 8 of 10 service so no one could use them. Sheets claims that he had implied consent to

keep Krause’s belongings because he was attempting to return them to Krause.

However, as Sheets concedes, implied consent is not a recognized defense to

theft in Indiana. Appellant’s Br. at 12-13. Additionally, the evidence presented

did not support the conclusion that Sheets was trying to return the items to

Krause. At no time after he took the wallet and cell phone, did Sheets contact

Krause with information as to how to get in touch with Sheets to get his

belongings back. Sheets did not ever contact any of the contact numbers in

Krause’s phone to alert them that he found Krause’s things nor did he post any

identifying information on Krause’s Facebook account despite having access to

it through the cell phone. Although Sheets contends that he intended to

provide his name and number in the envelopes sent to Krause, the evidence

presented was that no contact information was included. Furthermore,

although Krause’s cell phone was eventually recovered after Sheets was

arrested, Krause’s wallet and the cash inside were never recovered. Based on

the evidence presented at trial, we conclude that sufficient evidence was

presented to prove that Sheets exerted unauthorized control over Krause’s

property. Sheets’s challenges to the contrary are requests for us to reweigh the

evidence, which cannot do on appeal. Boggs, 928 N.E.2d at 864. We,

therefore, conclude that the State presented sufficient evidence to support

Sheets’s conviction for theft.

[19] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 9 of 10 Riley, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 10 of 10