LaShawn A. Tanks v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 30, 2019
• Docket: 19A-CR-910
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 30 2019, 10:32 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Rodney T. Sarkovics Curtis T. Hill, Jr. Sarkovics Law Attorney General of Indiana Carmel, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

LaShawn A. Tanks, December 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-910 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable David K. Najjar, Appellee-Plaintiff. Judge Trial Court Cause No. 29D05-1704-F6-2417

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019 Page 1 of 8 Statement of the Case [1] LaShawn Tanks (“Tanks”) appeals his convictions, following a jury trial, of

Level 6 felony theft1 and Level 6 felony fraud.2 He argues that the evidence is

insufficient to support his convictions because the State failed to: (1) establish

venue in Hamilton County; and (2) prove his identity beyond a reasonable

doubt. Concluding that the evidence is sufficient, we affirm his convictions.

[2] We affirm.

Issues 1. Whether there is sufficient evidence to establish venue in Hamilton County.

2. Whether there is sufficient evidence to prove Tanks’ identity beyond a reasonable doubt.

Facts [3] The facts most favorable to the verdict reveal that the State charged Tanks with

Level 6 felony theft and Level 6 felony fraud in March 2017. Testimony at trial

revealed that Kayla Stauffer (“Stauffer”) had lunch at a Carmel restaurant on

March 1, 2017 at approximately 2:00 p.m. Stauffer ordered her meal at the

counter and used a Chase credit card to pay for it. Tanks, who is 6’5” tall and

1 IND. CODE § 35-43-4-2. 2 I.C. § 35-43-5-4.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019 Page 2 of 8 weighs nearly 300 pounds, brought her food to her table. There were only two

employees in the restaurant at the time of Stauffer’s purchase, the man who had

taken her payment at the cash register and Tanks.

[4] That same evening, Stauffer received an alert from Chase about recent use on

her credit card. Stauffer noticed that she did not have the credit card in her

possession and contacted Chase regarding the alert. Stauffer learned that

several purchases had been made with her card that evening at Meijer and Hat

World, both located on the west side of Indianapolis within a mile from Tanks’

home. She told the Chase representative that she had not authorized any

purchases that day other than her lunch and that she had not seen her credit

card since she had made that purchase.

[5] The following day, Stauffer contacted the Carmel Police Department and

reported the unauthorized purchases. Carmel Police Department Officer

Michael Pitman (“Officer Pitman”) was dispatched to the restaurant where

Stauffer had purchased lunch. Officer Pitman testified that he had talked to the

manager and had obtained a list of employees who had worked the previous

day, which included Tanks. Timecards showed that Tanks had left the

restaurant at approximately 5:20 p.m. the previous day. While speaking with

the manager, Officer Pitman noticed Tanks, who was wearing a bright red cap,

walk into the parking lot and move his light blue Ford SUV to an underground

parking garage. When he returned to the restaurant, Tanks was no longer

wearing the red cap.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019 Page 3 of 8 [6] Officer Pitman further testified that he had gone to the westside Indianapolis

Meijer and obtained surveillance photographs of the parking lot and store that

had been taken at approximately 6:30 p.m. the evening of the unauthorized

purchases. In the photographs, the officer noticed a man, whom he identified

as Tanks, park the blue Ford SUV that he had seen Tanks move at the Carmel

restaurant. The photographs also showed Tanks entering the store, walking

throughout it, and purchasing almost $400 worth of items. Tanks was wearing

a bright red cap. The Meijer surveillance photos were admitted into evidence at

trial without objection.

[7] Also at trial, Carmel Police Department Detective Mark Paris (“Detective

Paris”) testified that he had gone to the westside Hat World to obtain

surveillance video of the purchases made with Stauffer’s credit card. Detective

Paris identified the man making the purchases as Tanks after comparing Tanks’

BMV photograph to the man in the video. The surveillance video was also

admitted into evidence at trial without objection.

[8] At the close of the presentation of evidence, Tanks orally moved for a directed

verdict on the theft charge based on the State’s alleged failure to establish venue

in Hamilton County. Tanks specifically argued as follows:

They have not presented any evidence that my client committed an official, or excuse me, an essential element of the offense within the confines of Hamilton County. The only testimony that was given within, that occurred within Hamilton County does not have my client in possession of the card, touching the card, taking the card, only that she, Ms. Kayla Stauffer - I think I'm pronouncing that right - gave it to somebody else. She Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019 Page 4 of 8 doesn't know what happened to the card after that point. Even if, assuming is a big assumption, that the person in the security video for both Meijer and Hat World is my client, both of those things happened in Marion County, not Hamilton County. And I do not believe they have proven anything in Hamilton County.

(Tr. 114).

[9] The State responded that there was no dispute that Tanks had been present in

the Hamilton County restaurant when Stauffer had purchased lunch with her

credit card. He had clocked out of the Carmel restaurant at 5:20 p.m., and the

unauthorized transactions had occurred an hour later in Indianapolis.

According to the State, “there [was] no inference or determination from the

evidence that [could] be made other than that in that short period of time

[Tanks] removed that card from Carmel to Marion County and consummated

those purchases.” (Tr. 115). The State concluded that because “they are so

closely woven in time and place . . . there [was] ample evidence in the record

for the jury to find venue appropriate in Hamilton County.” (Tr. 115). The

trial court denied ‘ motion, and the jury convicted him of theft and fraud.

Tanks now appeals.

Decision [10] Tanks argues that there is insufficient evidence to support his theft and fraud

convictions because the State failed to: (1) establish venue in Hamilton County;

and (2) prove his identity as the perpetrator of the offenses beyond a reasonable

doubt. We address each of his arguments in turn.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019 Page 5 of 8 1. Venue

[11] Tanks first argues that there is insufficient evidence to establish venue in

Hamilton County. Specifically, Tanks contends that there is “no evidence that

Tanks touched or possessed the credit card, or took any act in furtherance of

either charge, in Hamilton County.” (Tanks’ Br. at 8).

[12] Tanks is correct that he has a constitutional and statutory right to be tried in the

county where the offenses were committed. See Ind. Const. Art. I, § 13 and

Ind. code § 35-32-2-1(a). If the commission of an offense begins in one county

and continues into another county, the State may file charges in any of the

involved counties. Davis v. State, 520 N.E.2d 1271, 1274 (Ind. 1988). The State

is required to prove venue, although it is not an element of the offense. Peacock

v. State, 126 N.E.2d 892, 897 (Ind. Ct. App. 2019). As a result, the State may

prove venue by a preponderance of the evidence rather than by proof beyond a

reasonable doubt. Id. Circumstantial evidence may be sufficient to establish

proper venue. Id. We neither weigh the evidence nor resolve questions of

credibility but look to the evidence and reasonable inferences drawn therefrom

that support the conclusion of requisite venue. Id.

[13] Here, we find ample circumstantial evidence to establish venue in Hamilton

County. Specifically, our review of the evidence reveals that Stauffer used her

credit card to purchase lunch at a Carmel restaurant at approximately 2:00 p.m.

and had last seen her card at that time. Tanks, who was only one of two

employees in the restaurant, clocked out at 5:20 p.m. and the unauthorized

Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019 Page 6 of 8 purchases began approximately an hour later in Indianapolis. Contrary to

Tanks’ argument, this evidence and the reasonable inferences to be drawn

therefrom supports the conclusion that Tanks touched or possessed the card in

Hamilton County. The evidence is therefore sufficient to establish venue in

Hamilton County.

2. Identity

[14] Tanks also argues that there is insufficient evidence to support his theft and

fraud convictions because the State failed to prove his identity as the perpetrator

of the offenses beyond a reasonable doubt. Our standard of review for

sufficiency of the evidence claims is well settled. We consider only the

probative evidence and reasonable inferences supporting the verdict. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or

judge witness credibility. Id. We will affirm the conviction unless no

reasonable fact finder could find the elements of the crime proven beyond a

reasonable doubt. Id. The evidence is sufficient if an inference may be

reasonably drawn from it to support the verdict. Id. at 147. “Identity may be

established entirely by circumstantial evidence and the logical inferences drawn

therefrom.” Cherry v. State, 57 N.E.3d 867, 877 (Ind. Ct. App. 2016) (citing

Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind. 1990)), trans. denied.

[15] Tanks specifically argues that “[n]one of the State’s evidence reflected that the

individual who possessed and/or used [Stauffer’s] credit card was Tanks.”

(Tanks’ Br. at 12). However, our review of the evidence reveals sufficient

Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019 Page 7 of 8 evidence to support the jury’s conclusion that Tanks was the individual who

committed the offenses.

[16] Specifically, the evidence reveals that surveillance photographs from Meijer

showed a man that Officer Pitman identified as 6’5” Tanks arriving in the

parking lot. Tanks was driving the blue Ford SUV that Officer Pitman had seen

him move from the Carmel restaurant parking lot to a nearby underground

garage. The photographs also showed a man that Officer Pitman identified as

Tanks making the unauthorized purchases with Stauffer’s credit card. These

photographs were admitted into evidence at trial without objection, and the jury

had the opportunity to compare the man in the photographs to Tanks.

[17] In addition, the surveillance video from Hat World showed a man that

Detective Paris identified as Tanks making the unauthorized purchases with

Stauffer’s credit card. The video was also admitted into evidence at trial

without objection, and the jury had the opportunity to compare the man in the

video to Tanks. This evidence is sufficient to prove Tanks’ identity beyond a

reasonable doubt and support his convictions. Tanks’ argument that the images

are not clear enough to identify him is an invitation for us to reweigh the

evidence, which we cannot do. See Drane, 867 N.E.2d at 146.

[18] Affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019 Page 8 of 8