Lorinda Harper v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 25, 2012
• Docket: 90A02-1110-CR-981
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED May 25 2012, 9:17 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN GREGORY F. ZOELLER Acklin Law Office, LLC Attorney General of Indiana Westfield, Indiana ANN L. GOODWIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

LORINDA HARPER, ) ) Appellant-Defendant, ) ) vs. ) No. 90A02-1110-CR-981 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE WELLS CIRCUIT COURT The Honorable Kenton W. Kiracofe, Judge Cause No. 90C01-1109-FD-55

May 25, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Lorinda Harper (“Harper”) appeals from her conviction after a bench trial of receiving

stolen property1 as a Class D felony. Harper presents the following issue for our review:

whether the evidence of Harper’s unexplained possession of a motor vehicle at the time of

her arrest is sufficient to support her conviction of receiving stolen property.

We affirm.

FACTS AND PROCEDURAL HISTORY

On December 8, 2006, at approximately 3:00 a.m., Joel Knell’s (“Knell”) wife went

into premature labor. Knell shoveled the sidewalk and started his Ford Windstar minivan.

Knell went indoors to help his wife, and discovered that the van was missing when he

returned outside. Knell testified at trial that he did not know Harper and did not give her

permission to drive his van.

On February 5, 2007, Officer Greg Steele (“Officer Steele”) of the Bluffton Police

Department initiated a traffic stop of a vehicle driven by Harper. In the process of that

investigation, Officer Steele learned that the vehicle was the Knells’ van, which had been

reported stolen. The van was impounded and towed. Officer Steele told Harper that the

vehicle had been reported stolen. Harper denied that the minivan was stolen, and offered no

explanation for her possession of the vehicle.

Several weeks after the traffic stop, Harper’s attorney submitted to police officers

statements by Amber Snider (“Snider”) and Ambrosia Booher (“Booher”) implicating Cody

Lopez (“Lopez”) in the theft of the Knells’ minivan. Snider and Harper knew each other

1 See Ind. Code § 35-43-4-2(b). 2 from a time where they were in jail together and Snider was serving a sentence for receiving

stolen property. Snider lived with Harper and had dated Lopez until the relationship ended

unpleasantly in 2006. Booher had also met Harper in jail and considered Harper to be her

best friend.

Initially, Lopez was charged with the theft of the Knells’ minivan. Officer Steele

began to question the credibility of at least one of the people who had implicated Lopez in

the theft. Ultimately, on September 24, 2010, the State charged Harper with auto theft and

receiving stolen property, each as a Class D felony.

Harper waived her right to a jury trial and was convicted after her bench trial. Lopez

denied stealing the minivan, loaning the minivan, or giving Snider, Booher, or Harper

permission to drive the minivan. Snider and Booher indicated that Lopez brought the

minivan to Harper, told her that it belonged to his aunt, and allowed Harper to borrow it.

Booher’s husband, Christopher Dagger (“Dagger”), who was dating Snider in 2007, testified

that he was present when Lopez allowed Harper to use the minivan. Dagger stated that

although he had his own vehicle, Lopez let Harper, Snider, and Booher use the minivan to

run errands. At the conclusion of her trial, the trial court found Harper not guilty of auto

theft and guilty of receiving stolen property. The trial court sentenced Harper to three years

executed with one year suspended. Harper now appeals.

DISCUSSION AND DECISION

Harper argues that there is insufficient evidence to support her conviction for

receiving stolen property. In order to establish that Harper had committed the offense, the

3 State was required to show beyond a reasonable doubt that Harper knowingly or

intentionally, received, retained, or disposed of the Knells’ minivan, which had been the

subject of a theft. Harper claims that, at best, the State established only her unexplained

possession of stolen property, which is insufficient to support her conviction.

When reviewing the sufficiency of the evidence to support a conviction, “appellate

courts must consider only the probative evidence and reasonable inferences supporting the

verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting McHenry v. State, 820

N.E.2d 124, 126 (Ind. 2005)). “It is the fact-finder’s role, not that of appellate courts, to

assess witness credibility and weigh the evidence to determine whether it is sufficient to

support a conviction.” Id. We affirm the conviction unless no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt.” Id. (citing Jenkins v.

State, 726 N.E.2d 268, 270 (Ind. 2000)). It is therefore not necessary that the evidence

“overcome every reasonable hypothesis of innocence.” Id. at 147 (citing Moore v. State, 652

N.E.2d 53, 55 (Ind. 1995)).

In Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010), our Supreme Court held that

“the mere unexplained possession of recently stolen property standing alone does not

automatically support a conviction for theft.” Mere unexplained possession “is to be

considered along with the other evidence in a case.” Id. The jury must assess the fact of

possession and all the surrounding evidence about the possession to determine if a rational

juror could find the defendant guilty beyond a reasonable doubt. Id. While knowledge that

the property is stolen may be established by circumstantial evidence, knowledge of the stolen

4 nature of the property may not be inferred solely from the unexplained possession of recently

stolen property. Id.

In the present case, we are faced not with the unexplained possession of recently

stolen property, but with an explanation for such possession that the trial court as trier of fact

rejected. Harper and defense witnesses claimed that Lopez allowed Harper to drive the

vehicle, and Lopez denied that he had stolen the vehicle and that he had allowed Harper to

drive the minivan. The trial court rejected Harper’s explanation. Harper’s possession of the

minivan is not “unexplained” because Harper offered an explanation that the trial court

rejected, i.e., that Lopez had loaned the vehicle to her. From the trial court’s rejection of

Harper’s explanation, we may infer that the trial court found Harper’s explanation to be false

and misleading. Possession of stolen property coupled with the defendant’s false or

misleading explanation of such possession has long been held to be sufficient evidence upon

which to support a conviction for receiving stolen property. See Barnett v. State, 834 N.E.2d

169, 172 (Ind. Ct. App. 2005) (knowledge inferred from possession coupled with false or

evasive explanation). Consequently, the evidence is sufficient to support Harper’s

conviction.

Affirmed.

BAKER, J., and BROWN, J., concur.