MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 05 2018, 6:21 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David M. Payne Curtis T. Hill, Jr. Ryan & Payne Attorney General of Indiana Marion, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jennifer Lynn Hand, December 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-890 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey D. Todd Appellee-Plaintiff Trial Court Cause No. 27D01-1706-F6-293
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 1 of 7 [1] Jennifer Lynn Hand appeals her conviction for Level 6 felony theft. 1 She also
appeals the trial court’s order of restitution as the court did not inquire into her
ability to pay. We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History [2] Hand worked as an assistant manager at the Circle K store located on Bradford
Street in Marion, Indiana (“Store #2203”). She was a “trusted employee.” (Tr.
Vol. II at 88.) However, Hand had been experiencing problems in her family
and had requested time off to travel to see them out of state.
[3] Ericka Kroft was the manager at Store #2203. Robert Haynes was the market
manager over that store and seventeen others. On May 16, 2017, Haynes was
notified by the corporate office that no deposit had been made for Store #2203
for May 11, 2017. Store #2203 used Star Financial (“Star”) as its bank.
[4] Haynes informed Kroft the company had been unable to locate the deposit for
Store #2203. Kroft investigated. 2 Because Kroft had been scheduled to work
on May 11, Kroft assumed she had taken the deposit to the bank. However,
1 Ind. Code § 35-43-4-2 (2017). 2 Circle K had procedures in place whereby either the manager or one of the two assistant managers must take the daily deposit to the bank. This person was to go straight to the bank from the store. If it was a weekday, the deposit was to be made inside the bank with the “first available teller.” (Tr. Vol. II at 75.) The bank teller would keep the white copy of the deposit slip and return the pink and yellow copies, together with the deposit receipt. The person making the deposit was to return the documentation to the store immediately or at the beginning of that person’s next shift at the store. On weekends, the person was allowed to use the bank’s dropbox and the documentation would be retrieved during Monday’s deposit.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 2 of 7 she could not locate the deposit receipt from the bank or the pink and yellow
copies of the deposit slip, which the store retains. Kroft contacted Star to
request the bank review its documentation for a deposit and its security footage
to see if she had been there that day. Star was unable to find any
documentation of a deposit for Store #2203 that day. Nor did Star’s security
footage show Kroft at the bank that day. Kroft thought she had requested Star
to see if Hand had been in the bank that day; however, she was not “one
hundred percent [sure]” she had. (Id. at 114.) Nonetheless, Star personnel
“knew what [Hand] looked like.” (Id. at 115.)
[5] Hand and Kroft both worked on May 11, 2017. Both were authorized to make
deposits for Store #2203. Kroft remembered asking Hand to take the deposit to
the bank and Hand complying. However, Kroft was unable to locate any of the
deposit documentation. Haynes came to the store but was also unable to find
the deposit documentation. Kroft and Haynes reviewed Store #2203’s security
footage. That footage showed Kroft dealing with a customer complaining of
credit card fraud, Hand leaving the store with the deposit, and Kroft leaving the
store without the deposit.
[6] On May 25, 2017, Marion Police Department Officer Cody Weigle was called
to Store #2203 to take a report of theft from Haynes and Kroft. The State filed
a charge of Level 6 felony theft against Hand. On February 26, 2018, the trial
court held a jury trial. The jury found Hand guilty.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 3 of 7 [7] On March 14, 2018, the trial court sentenced Hand to two years, with six
months suspended to probation. As a condition of her probation, Hand was
ordered to pay restitution “to Circle K in the amount of $2,876.84.” (Appealed
Order at 2.) After sentencing Hand to one and one-half years executed and six
months on “formal supervised probation[,]” (Tr. Vol. II at 176), the trial court
ordered Hand to pay the restitution as a condition of her probation “in equal
monthly installments until such time as the restitution is paid in full.” (Id.)
Discussion and Decision Sufficiency of Evidence
[8] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the
credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference reasonably may be drawn from it to support the verdict. Id. at
147.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 4 of 7 [9] To prove Hand committed Level 6 felony theft, the State had to present
evidence Hand “knowingly or intentionally exert[ed] unauthorized control over
the property of at least $750.00 . . . with the intent to deprive Circle K of any
part of the use or value of the property[.]” (App. Vol. II at 18); see also Ind.
Code § 35-43-4-2 (elements of theft). “[I]ntent is a mental function and without
a confession, it must be determined from a consideration of the conduct, and
the natural consequences of the conduct.” Duren v. State, 720 N.E.2d 1198,
1202 (Ind. Ct. App. 1999), trans. denied. Accordingly, intent often must be
proven by circumstantial evidence. Id. The trier of fact is entitled to infer intent
from the surrounding circumstances. White v. State, 772 N.E.2d 408, 412 (Ind.
2002).
[10] The State presented evidence that: 1) Hand was given the deposit; 2) Hand left
Store #2203 with the deposit; 3) Star did not have documentation of a deposit
from Store #2203 that day; 4) the documentation Store #2203 keeps after a
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 05 2018, 6:21 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David M. Payne Curtis T. Hill, Jr. Ryan & Payne Attorney General of Indiana Marion, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jennifer Lynn Hand, December 5, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-890 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Jeffrey D. Todd Appellee-Plaintiff Trial Court Cause No. 27D01-1706-F6-293
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 1 of 7 [1] Jennifer Lynn Hand appeals her conviction for Level 6 felony theft. 1 She also
appeals the trial court’s order of restitution as the court did not inquire into her
ability to pay. We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History [2] Hand worked as an assistant manager at the Circle K store located on Bradford
Street in Marion, Indiana (“Store #2203”). She was a “trusted employee.” (Tr.
Vol. II at 88.) However, Hand had been experiencing problems in her family
and had requested time off to travel to see them out of state.
[3] Ericka Kroft was the manager at Store #2203. Robert Haynes was the market
manager over that store and seventeen others. On May 16, 2017, Haynes was
notified by the corporate office that no deposit had been made for Store #2203
for May 11, 2017. Store #2203 used Star Financial (“Star”) as its bank.
[4] Haynes informed Kroft the company had been unable to locate the deposit for
Store #2203. Kroft investigated. 2 Because Kroft had been scheduled to work
on May 11, Kroft assumed she had taken the deposit to the bank. However,
1 Ind. Code § 35-43-4-2 (2017). 2 Circle K had procedures in place whereby either the manager or one of the two assistant managers must take the daily deposit to the bank. This person was to go straight to the bank from the store. If it was a weekday, the deposit was to be made inside the bank with the “first available teller.” (Tr. Vol. II at 75.) The bank teller would keep the white copy of the deposit slip and return the pink and yellow copies, together with the deposit receipt. The person making the deposit was to return the documentation to the store immediately or at the beginning of that person’s next shift at the store. On weekends, the person was allowed to use the bank’s dropbox and the documentation would be retrieved during Monday’s deposit.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 2 of 7 she could not locate the deposit receipt from the bank or the pink and yellow
copies of the deposit slip, which the store retains. Kroft contacted Star to
request the bank review its documentation for a deposit and its security footage
to see if she had been there that day. Star was unable to find any
documentation of a deposit for Store #2203 that day. Nor did Star’s security
footage show Kroft at the bank that day. Kroft thought she had requested Star
to see if Hand had been in the bank that day; however, she was not “one
hundred percent [sure]” she had. (Id. at 114.) Nonetheless, Star personnel
“knew what [Hand] looked like.” (Id. at 115.)
[5] Hand and Kroft both worked on May 11, 2017. Both were authorized to make
deposits for Store #2203. Kroft remembered asking Hand to take the deposit to
the bank and Hand complying. However, Kroft was unable to locate any of the
deposit documentation. Haynes came to the store but was also unable to find
the deposit documentation. Kroft and Haynes reviewed Store #2203’s security
footage. That footage showed Kroft dealing with a customer complaining of
credit card fraud, Hand leaving the store with the deposit, and Kroft leaving the
store without the deposit.
[6] On May 25, 2017, Marion Police Department Officer Cody Weigle was called
to Store #2203 to take a report of theft from Haynes and Kroft. The State filed
a charge of Level 6 felony theft against Hand. On February 26, 2018, the trial
court held a jury trial. The jury found Hand guilty.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 3 of 7 [7] On March 14, 2018, the trial court sentenced Hand to two years, with six
months suspended to probation. As a condition of her probation, Hand was
ordered to pay restitution “to Circle K in the amount of $2,876.84.” (Appealed
Order at 2.) After sentencing Hand to one and one-half years executed and six
months on “formal supervised probation[,]” (Tr. Vol. II at 176), the trial court
ordered Hand to pay the restitution as a condition of her probation “in equal
monthly installments until such time as the restitution is paid in full.” (Id.)
Discussion and Decision Sufficiency of Evidence
[8] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the
credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference reasonably may be drawn from it to support the verdict. Id. at
147.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 4 of 7 [9] To prove Hand committed Level 6 felony theft, the State had to present
evidence Hand “knowingly or intentionally exert[ed] unauthorized control over
the property of at least $750.00 . . . with the intent to deprive Circle K of any
part of the use or value of the property[.]” (App. Vol. II at 18); see also Ind.
Code § 35-43-4-2 (elements of theft). “[I]ntent is a mental function and without
a confession, it must be determined from a consideration of the conduct, and
the natural consequences of the conduct.” Duren v. State, 720 N.E.2d 1198,
1202 (Ind. Ct. App. 1999), trans. denied. Accordingly, intent often must be
proven by circumstantial evidence. Id. The trier of fact is entitled to infer intent
from the surrounding circumstances. White v. State, 772 N.E.2d 408, 412 (Ind.
2002).
[10] The State presented evidence that: 1) Hand was given the deposit; 2) Hand left
Store #2203 with the deposit; 3) Star did not have documentation of a deposit
from Store #2203 that day; 4) the documentation Store #2203 keeps after a
successful deposit was missing; and 5) Hand had family crises during this
timeframe that resulted in travel expenses.
[11] Hand contends the State’s evidence was purely circumstantial and, therefore,
insufficient to prove Hand committed theft. Although no one saw Hand steal
the money, it was reasonable for the jury to infer she did because, together with
the security footage indicating Hand left the store with the deposit, neither the
bank nor the store had record of the deposit being made. See Bonds v. State, 721
N.E.2d 1238, 1242 (Ind. 1999) (“circumstantial evidence will be deemed
sufficient if inferences may reasonably be drawn that enable the trier of fact to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 5 of 7 find the defendant guilty beyond a reasonable doubt”). Hand’s request for us to
consider alternative theories for why the deposit was missing are an invitation
for us to reweigh the evidence, which we cannot do. See McHenry v. State, 820
N.E.2d 124, 126 (Ind. 2005) (appellate court does not reweigh evidence or
judge the credibility of witnesses).
Restitution
[12] “Generally, an order of restitution is within the trial court’s discretion, and it
will be reversed only upon a finding of an abuse of that discretion. An abuse of
discretion occurs when the trial court misinterprets or misapplies the law.”
Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004). A restitution order
must be supported by sufficient evidence of actual loss sustained by the victim
of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.
A trial court may order restitution as a condition of probation; however, as a
defendant can be imprisoned for failing to meet the conditions of probation, the
trial court is required to inquire into the defendant’s ability to pay that
restitution. Bell v. State, 59 N.E.3d 959, 963 (Ind. 2016).
[13] Hand argues the trial court abused its discretion because it did not inquire as to
her ability to pay restitution. The State agrees. If a trial court fails to make
such an inquiry and a defendant fails to provide sufficient evidence of her
inability to pay, the appropriate remedy is to remand for a new restitution
order. Id. at 966.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 6 of 7 [14] Here, the trial court ordered restitution of $2,876.84 and ordered it be paid
during her probation, i.e., in six months; however, the court did not inquire as
to Hand’s ability to pay restitution or to pay it at that rate. Hand also did not
have an opportunity to present any evidence of her inability to pay restitution.
Hand is entitled to such an inquiry. See M.L. v. State,838 N.E.2d 525, 530 (Ind.
Ct. App. 2005) (defendant is entitled to a hearing on his or her ability to pay
restitution), reh’g denied, trans. denied. As the trial court’s order for restitution
constitutes an abuse of discretion because it did not make an inquiry into
Hand’s ability to pay restitution, we reverse the restitution order and remand to
the trial court with instructions to inquire into Hand’s ability to pay an order of
restitution. See Bell, 59 N.E.3d at 966 (proper remedy for failure to inquire into
defendant’s ability to pay is to reverse and remand for a new order following an
inquiry as to ability to pay).
Conclusion [15] Although circumstantial, the State presented sufficient evidence Hand
committed theft. The trial court abused its discretion when it entered a
restitution order as a condition of her probation without inquiring into Hand’s
ability to pay. Accordingly, we affirm in part, reverse in part, and remand with
instructions.
[16] Affirmed in part, reversed in part, and remanded.
Baker, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 7 of 7