MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 01 2019, 5:44 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 William T. Myers Curtis T. Hill, Jr. Whitehurst & Myers Law Attorney General of Indiana Marion, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jennifer M. Culver, October 1, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2661 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff. Newton, Judge Trial Court Cause No. 35D01-1803-F6-48
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 1 of 6 Statement of the Case [1] Jennifer M. Culver appeals her conviction for theft, as a Level 6 felony,
following a jury trial. Culver raises one issue on appeal, namely, whether the
State presented sufficient evidence to support her conviction.
[2] We affirm.
Facts and Procedural History [3] On February 6, 2018, Culver and her two children went to Los Amigos
restaurant for dinner. Culver ordered a chalupa, a child’s cheese quesadilla,
and two drinks. When the food arrived, Culver questioned her waiter whether
the chalupa being served was actually a chalupa. Accordingly, Culver’s waiter
asked Ramiro Escamilla, the restaurant’s manager, to speak to Culver.
Escamilla explained to Culver that she had received a chalupa, as ordered, but
that the chalupa was simply a different shape than what she was used to getting
at other restaurants. He offered to either replace the chalupa with something
else or to remove the food and take it off of her bill. In response, Culver said:
“no, that’s fine, that’s ok.” Tr. Vol. II at 29. Escamilla asked if Culver was
sure and again offered to get her something else. Culver again declined
Escamilla’s offer. Escamilla then left Culver and her children to eat.
[4] Escamilla returned to Culver’s table approximately ten or fifteen minutes later.
When he arrived, Escamilla noticed that the “[p]lates were clean.” Id. at 30.
Escamilla then directed Culver’s waiter to leave the bill, which totaled $11.73.
Escamilla saw the waiter leave the bill on Culver’s table. He then watched
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 2 of 6 Culver and her children “briskly walk” out of the restaurant without stopping at
the cash register to pay. Id. at 49. Escamilla went to Culver’s table and “looked
around” because “sometimes people do leave money” on the table. Id. at 32.
Escamilla saw the bill, but he did not see any money. He then took the bill and
went outside. Culver was at her van, and Escamilla told her that she forgot to
pay her bill. In response, Culver said: “I’m not paying for that shit.” Id. at 33.
Escamilla then wrote down Culver’s license plate number and called the police.
[5] Officer Clayton Baker with the Huntington City Police Department responded
to Escamilla’s call. Officer Baker ran the license plate number Escamilla had
provided to him, and the results confirmed that the van belonged to Culver.
Officer Baker then called Culver approximately five times but was unable to
speak with her. Officer Baker left Culver a voicemail telling her that Los
Amigos wanted her to pay her bill and, if she did, they would not pursue legal
action. A few days later, after Culver had failed to return his call, Officer Baker
called again and left a similar voicemail. When Culver still did not return his
call, Officer Baker asked Deputy Marshall Jeremy Goff with the Roanoke
Police Department to contact Culver. Deputy Marshall Goff spoke with Culver
at her place of employment, gave her the Huntington City Police Department’s
phone number, and asked her to call them about an unpaid restaurant bill.
Culver never called Officer Baker.
[6] The State charged Culver with one count of theft, as a Level 6 felony. At
Culver’s ensuing jury trial, the State presented as evidence Escamilla’s
testimony. Escamilla testified that, while he offered to remove the uneaten
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 3 of 6 food from Culver’s table and remove it from the bill when she initially
complained about the food, he never indicated to her that she did not have to
pay for food that she and her children ate. He further testified that, when he
went back to check on Culver and her children, “all the food was eaten.” Id. at
55. In her defense, Culver presented her testimony and the testimony of her
son. Culver testified that one of the waiters at the restaurant had told her that
she did not need to pay for the complained-of food. She further testified that
she had left ten dollars on the table, which she believed was “more than
enough” to cover the remainder of her bill. Id. at 93. Culver’s son also testified
that Culver had left ten dollars on the table.
[7] At the conclusion of the first phase of the trial, the jury found Culver guilty of
theft. During the second phase, Culver admitted that she had a prior, unrelated
conviction for theft. Accordingly, the trial court entered judgment of conviction
against Culver for theft, as a Level 6 felony, and sentenced her accordingly.
This appeal ensued.
Discussion and Decision [8] Culver contends that the State failed to present sufficient evidence to support
her conviction. Our standard of review on a claim of insufficient evidence is
well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 4 of 6 We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[9] To prove that Culver committed theft, as a Level 6 felony, the State was
required to show that Culver knowingly or intentionally exerted unauthorized
control over the property of another person with the intent to deprive the other
person of any part of its value and that Culver had a prior unrelated conviction
for theft. Ind. Code § 35-43-4-2(a)(1) (2018). On appeal, Culver contends that
the State presented insufficient evidence to prove that she exerted unauthorized
control over the restaurant’s property. Specifically, Culver contends that the
State failed to present sufficient evidence to support her conviction because she
and her ten-year old son both testified that “she left $10 on the table” before she
left the restaurant and because she testified that “one of the waiters told her that
she didn’t have to pay for the food[.]” Appellant’s Br. at 10.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 01 2019, 5:44 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 William T. Myers Curtis T. Hill, Jr. Whitehurst & Myers Law Attorney General of Indiana Marion, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jennifer M. Culver, October 1, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2661 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Appellee-Plaintiff. Newton, Judge Trial Court Cause No. 35D01-1803-F6-48
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 1 of 6 Statement of the Case [1] Jennifer M. Culver appeals her conviction for theft, as a Level 6 felony,
following a jury trial. Culver raises one issue on appeal, namely, whether the
State presented sufficient evidence to support her conviction.
[2] We affirm.
Facts and Procedural History [3] On February 6, 2018, Culver and her two children went to Los Amigos
restaurant for dinner. Culver ordered a chalupa, a child’s cheese quesadilla,
and two drinks. When the food arrived, Culver questioned her waiter whether
the chalupa being served was actually a chalupa. Accordingly, Culver’s waiter
asked Ramiro Escamilla, the restaurant’s manager, to speak to Culver.
Escamilla explained to Culver that she had received a chalupa, as ordered, but
that the chalupa was simply a different shape than what she was used to getting
at other restaurants. He offered to either replace the chalupa with something
else or to remove the food and take it off of her bill. In response, Culver said:
“no, that’s fine, that’s ok.” Tr. Vol. II at 29. Escamilla asked if Culver was
sure and again offered to get her something else. Culver again declined
Escamilla’s offer. Escamilla then left Culver and her children to eat.
[4] Escamilla returned to Culver’s table approximately ten or fifteen minutes later.
When he arrived, Escamilla noticed that the “[p]lates were clean.” Id. at 30.
Escamilla then directed Culver’s waiter to leave the bill, which totaled $11.73.
Escamilla saw the waiter leave the bill on Culver’s table. He then watched
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 2 of 6 Culver and her children “briskly walk” out of the restaurant without stopping at
the cash register to pay. Id. at 49. Escamilla went to Culver’s table and “looked
around” because “sometimes people do leave money” on the table. Id. at 32.
Escamilla saw the bill, but he did not see any money. He then took the bill and
went outside. Culver was at her van, and Escamilla told her that she forgot to
pay her bill. In response, Culver said: “I’m not paying for that shit.” Id. at 33.
Escamilla then wrote down Culver’s license plate number and called the police.
[5] Officer Clayton Baker with the Huntington City Police Department responded
to Escamilla’s call. Officer Baker ran the license plate number Escamilla had
provided to him, and the results confirmed that the van belonged to Culver.
Officer Baker then called Culver approximately five times but was unable to
speak with her. Officer Baker left Culver a voicemail telling her that Los
Amigos wanted her to pay her bill and, if she did, they would not pursue legal
action. A few days later, after Culver had failed to return his call, Officer Baker
called again and left a similar voicemail. When Culver still did not return his
call, Officer Baker asked Deputy Marshall Jeremy Goff with the Roanoke
Police Department to contact Culver. Deputy Marshall Goff spoke with Culver
at her place of employment, gave her the Huntington City Police Department’s
phone number, and asked her to call them about an unpaid restaurant bill.
Culver never called Officer Baker.
[6] The State charged Culver with one count of theft, as a Level 6 felony. At
Culver’s ensuing jury trial, the State presented as evidence Escamilla’s
testimony. Escamilla testified that, while he offered to remove the uneaten
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 3 of 6 food from Culver’s table and remove it from the bill when she initially
complained about the food, he never indicated to her that she did not have to
pay for food that she and her children ate. He further testified that, when he
went back to check on Culver and her children, “all the food was eaten.” Id. at
55. In her defense, Culver presented her testimony and the testimony of her
son. Culver testified that one of the waiters at the restaurant had told her that
she did not need to pay for the complained-of food. She further testified that
she had left ten dollars on the table, which she believed was “more than
enough” to cover the remainder of her bill. Id. at 93. Culver’s son also testified
that Culver had left ten dollars on the table.
[7] At the conclusion of the first phase of the trial, the jury found Culver guilty of
theft. During the second phase, Culver admitted that she had a prior, unrelated
conviction for theft. Accordingly, the trial court entered judgment of conviction
against Culver for theft, as a Level 6 felony, and sentenced her accordingly.
This appeal ensued.
Discussion and Decision [8] Culver contends that the State failed to present sufficient evidence to support
her conviction. Our standard of review on a claim of insufficient evidence is
well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 4 of 6 We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[9] To prove that Culver committed theft, as a Level 6 felony, the State was
required to show that Culver knowingly or intentionally exerted unauthorized
control over the property of another person with the intent to deprive the other
person of any part of its value and that Culver had a prior unrelated conviction
for theft. Ind. Code § 35-43-4-2(a)(1) (2018). On appeal, Culver contends that
the State presented insufficient evidence to prove that she exerted unauthorized
control over the restaurant’s property. Specifically, Culver contends that the
State failed to present sufficient evidence to support her conviction because she
and her ten-year old son both testified that “she left $10 on the table” before she
left the restaurant and because she testified that “one of the waiters told her that
she didn’t have to pay for the food[.]” Appellant’s Br. at 10.
[10] We acknowledge that both Culver and her son testified that Culver left money
on the table. However, it was the jury’s responsibility to judge the credibility of
the witnesses, and the jury was free to disbelieve or discount their testimony
given the other evidence. Culver’s argument on appeal is simply a request that
we reweigh the evidence, which we cannot do. Rather, the evidence most
favorable to the trial court’s judgment demonstrates that Culver and her two
children went to Los Amigos restaurant for dinner, ordered, ate the food that
was delivered, and then left without paying the bill. Specifically, Escamilla
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 5 of 6 testified that, when Culver complained that she did not receive the food she had
ordered, Escamilla offered to either replace the food with something else or
remove the uneaten food and take it off of her bill. However, in response to
Escamilla’s offer, Culver said that things were “fine.” Tr. Vol. II at 29. Indeed,
when Escamilla returned to Culver’s table ten or fifteen minutes later, he
noticed that the “[p]lates were clean” and that “they finished their food[.]” Id.
at 30, 55. Escamilla also testified that, after the waiter placed the bill on
Culver’s table, she left the restaurant without paying. And, when Escamilla
followed her to the parking lot to ask her to pay, she responded that she was
“not paying for that shit.” Id. at 33. Further, Culver continued to refuse to pay
the bill even after Officer Baker told her in at least two voicemails that Los
Amigos would not pursue legal action if she paid her bill. Based on that
evidence, we conclude that a reasonable fact-finder could conclude that Culver
committed theft, as a Level 6 felony. We affirm Culver’s conviction.
[11] Affirmed.
Vaidik, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019 Page 6 of 6