Khalil Reeves v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 23, 2016
• Docket: 49A04-1508-CR-1132
• Status: Published

Opinion

FILED MEMORANDUM DECISION Mar 23 2016, 7:04 am

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

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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Khalil Reeves, March 23, 2016

Appellant-Defendant, Court of Appeals Case No. 49A04-1508-CR-1132 v. Appeal from the Marion Superior Court. The Honorable Anne Flannelly, State of Indiana, Magistrate. Appellee-Plaintiff. Cause No. 49G07-1411-CM-52521

Darden, Senior Judge

Statement of the Case [1] The trial court determined that Khalil Reeves stole jeans from a store. Reeves

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 49A04-1508-CR-1132 | March 23, 2016 Page 1 of 5 Issue [2] Reeves raises one issue, which we restate as: whether the evidence is sufficient

to sustain his conviction.

Facts and Procedural History [3] On November 21, 2014, Tyler Gutierrez was at his job managing a clothing

store located in Castleton Square Mall in Indianapolis. When Gutierrez

returned to the store after taking a break, he saw a man later identified as

Reeves shopping with another man and two women.

[4] As Gutierrez spoke with his subordinates, he watched Reeves walk toward the

store’s exit carrying two pairs of jeans in his right hand. Reeves walked past the

point of sale without stopping to pay. As Reeves left the store, sensors on the

jeans set off an alarm. Later, a review of the security recording showed Reeves

approaching a display of jeans and then carrying the jeans toward the exit.

[5] Gutierrez and another store employee followed Reeves and Reeves’

companions. Gutierrez stopped Reeves and repeatedly asked him to return the

jeans. Reeves refused and said the jeans were his. He did not offer to produce

a receipt for the jeans. Instead, Reeves dropped the jeans and swung at

Gutierrez with his right fist. Reeves and Gutierrez ended up on the floor, and

Reeves got up and ran away with his companions. Gutierrez and his fellow

employee gave chase, caught up with Reeves elsewhere in the mall, and

subdued him.

Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1132 | March 23, 2016 Page 2 of 5 [6] When Gutierrez retrieved the jeans, the store’s sensors were still attached.

Later, Gutierrez examined his store’s sales records for that day and did not find

any purchases of the brand, size, and SKU number of the jeans that Reeves had

carried out of the store.

[7] The State charged Reeves with one count of theft. The case was tried to the

bench. The court determined that Reeves was guilty and imposed sentencing.

Reeves now appeals.

Discussion and Decision [8] Reeves argues the State did not demonstrate that he took the jeans without

paying. When we review the sufficiency of the evidence to support a criminal

conviction, we consider only the probative evidence and reasonable inferences

supporting the judgment. Buelna v. State, 20 N.E.3d 137, 141 (Ind. 2014). We

neither reweigh the evidence nor assess witness credibility. Id. We will affirm

the conviction unless no reasonable factfinder could conclude the elements of

the crime were proven beyond a reasonable doubt. Id.

[9] To convict Reeves of theft as a Class A misdemeanor, the State was required to

prove, beyond a reasonable doubt, that Reeves (1) knowingly or intentionally

(2) exerted unauthorized control (3) over property of the store (4) with intent to

deprive the store of any part of its value or use. Ind. Code § 35-43-4-2.

[10] The evidence most favorable to the conviction shows that Reeves walked out of

the store with two pairs of jeans without paying for them. The jeans still had

the store’s sensors attached and set off an alarm. Gutierrez and another Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1132 | March 23, 2016 Page 3 of 5 employee confronted Reeves and repeatedly directed him to return the jeans.

Instead of complying or producing a receipt, Reeves refused, dropped the jeans,

and attempted to strike Gutierrez. After ending up on the floor, Reeves fled but

was later apprehended. The store’s records indicated that the jeans in question

had not been purchased.

[11] Reeves claims that Gutierrez’s testimony is the only evidence against him and

that the testimony is incredibly dubious. The incredible dubiosity rule allows a

court to impinge upon a fact-finder’s determination of witness credibility in

limited circumstances. Bullock v. State, 903 N.E.2d 156, 164 (Ind. Ct. App.

2009). The rule applies only when a single witness presents inherently

improbable testimony and there is a complete lack of supporting circumstantial

evidence. Id. Incredible dubiosity is a difficult standard to meet, requiring

ambiguous, inconsistent testimony that runs counter to human experience.

Carter v. State, 44 N.E.3d 47, 52 (Ind. Ct. App. 2015).

[12] Here, based on our review of the record, we cannot conclude Gutierrez’s

testimony was improbable or equivocal. He clearly identified Reeves in court

and testified that he saw Reeves walk out of the store with jeans in his hand

without paying for them. In addition, Gutierrez also testified that he and

Reeves were later involved in an altercation over the jeans. Gutierrez’s

testimony was supported by additional evidence in the form of security

recordings showing Reeves approaching a jeans display in the store and then

leaving while carrying jeans in his hand, with the sensor tags still attached to

the jeans. Reeves’ claim must fail.

Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1132 | March 23, 2016 Page 4 of 5 [13] Reeves also points to evidence that he had purchased the jeans with cash and

rejected the sales clerk’s offer of a bag. This argument is a request to reweigh

the evidence, which our standard of review forbids.

Conclusion [14] For the foregoing reasons, we affirm the judgment of the trial court.

[15] Affirmed.

Vaidik, C.J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1132 | March 23, 2016 Page 5 of 5