MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Sep 26 2016, 9:23 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Laura Paul Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Malena Shumaker, September 26, 2016
Appellant-Defendant, Court of Appeals Case No. 77A05-1603-CR-468 v. Appeal from the Sullivan Superior Court. The Honorable Hugh R. Hunt, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 77D01-1512-CM-830
Darden, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 1 of 7 Statement of the Case 1 [1] Malena Shumaker appeals her conviction of theft, a Class A misdemeanor.
We affirm.
Issue [2] Shumaker presents one issue, which we restate as: whether there is sufficient
evidence to sustain her conviction for theft as an accomplice.
Facts and Procedural History [3] On December 1, 2015, Shumaker, her boyfriend Michael Myers, and Stephen
Boatman stopped at a convenience store in Sullivan, Indiana, to get gasoline for
their car. Shumaker and Myers entered the store while Boatman stayed with
the car.
[4] A surveillance camera recorded Shumaker’s actions in the store but did not
record any audio. Shumaker waited until another customer had finished his
transaction with the clerk before approaching the counter. Myers momentarily
stepped away from Shumaker and out of the camera’s view. Shumaker tried to
exchange a $25 gift card for cash, but the clerk refused.
[5] Next, Myers walked up to the counter and stood next to Shumaker, near the
cash register. A small red Salvation Army donation bucket sat on the counter
1 Ind. Code § 35-43-4-2 (2014).
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 2 of 7 in front of the cash register, out of the clerk’s sight. As Shumaker and the clerk
were talking, Myers looked down at the bucket, put his hand on it, and furtively
slid it back and forth on the counter until it was close to where he was standing.
[6] When the clerk turned around to get cigarettes for Shumaker, Shumaker turned
to Myers, made eye contact, and said something to him. At that point, Myers
slipped the bucket into his jacket and turned to walk out of the store. As Myers
was leaving the store, Shumaker leaned over and onto the counter and was
talking to the clerk, whose back was to Shumaker, as she appeared to retrieve
another item for Shumaker. Shumaker paid for the cigarettes and purchased $5
worth of gasoline, and then she left the store. The three drove away after
Boatman put gasoline in the car.
[7] Later, the clerk discovered the donation bucket was missing and called the
police. An investigation led to Myers and Shumaker. The State charged
Shumaker with theft. The case was tried to the bench, and the trial court
determined Shumaker was guilty. The court imposed a sentence, and this
appeal followed.
Discussion and Decision [8] Rarely do we have an opportunity to see evidence from the same perspective as
the finder of fact, but in this case the primary piece of evidence is State’s Exhibit
1, the surveillance recording. Nevertheless, we cannot observe the demeanor of
the parties’ witnesses, which is extremely important, and we must be hesitant to
overlook the finder of fact’s role, therein, in doing so. As a result, when an
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 3 of 7 appellant challenges the sufficiency of the evidence to sustain a conviction, we
neither reweigh the evidence nor judge the credibility of the witnesses. Wright v.
State, 828 N.E.2d 904, 905-06 (Ind. 2005). We consider conflicting evidence in
the light most favorable to the judgment. Id. at 906. We will affirm if the
probative evidence and reasonable inferences drawn from the evidence could
have allowed a reasonable finder of fact to find the defendant guilty beyond a
reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
[9] Shumaker argues the State failed to provide sufficient evidence to establish that
she was an active participant in the theft of the donation bucket. To obtain a
conviction for theft, the State was required to prove beyond a reasonable doubt,
that: (1) Shumaker (2) knowingly or intentionally (3) exerted unauthorized
control over property of another person (4) with intent to deprive the other
person of any part of its value. Ind. Code § 35-43-4-2. Myers testified at trial
and admitted to stealing the bucket, claiming that Shumaker had nothing to do
with the crime. The State countered by arguing that Shumaker was guilty of
theft as Myers’ accomplice. As stated by the governing statute: “A person who
knowingly or intentionally aids, induces, or causes another person to commit
an offense commits that offense.” Ind. Code § 35-41-2-4 (1977).
[10] In order to sustain a conviction as an accomplice, there must be evidence of the
defendant’s affirmative conduct, either in the form of acts or words, from which
an inference of common design or purpose to effect the commission of a crime
may reasonably be drawn. Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct.
App. 2005), trans. denied. An accomplice need not participate in each and every
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 4 of 7 element of the crime in order to be convicted of it. Berry v. State, 819 N.E.2d
443, 450 (Ind. Ct. App. 2004), trans. denied. Furthermore, it is not necessary for
the State to show a defendant was party to a preconceived scheme, such as a
conspiracy; it must merely demonstrate concerted action or participation in an
illegal act. Id.
[11] In determining whether a person aided another in the commission of a crime,
we consider: (1) presence at the scene of the crime; (2) companionship with
another engaged in criminal activity; (3) failure to oppose the crime; and (4) a
defendant’s conduct before, during, and after the occurrence of the crime.
Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003). A defendant’s mere presence
during the commission of the crime or failure to oppose the crime are, by
themselves, insufficient to establish accomplice liability. Ransom v. State, 850
N.E.2d 491, 496 (Ind. Ct. App. 2006).
[12] In this case, it is undisputed that Shumaker was present during the theft. She
entered the convenience store with her companion, Myers, and engaged in a
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Sep 26 2016, 9:23 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Laura Paul Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Malena Shumaker, September 26, 2016
Appellant-Defendant, Court of Appeals Case No. 77A05-1603-CR-468 v. Appeal from the Sullivan Superior Court. The Honorable Hugh R. Hunt, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 77D01-1512-CM-830
Darden, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 1 of 7 Statement of the Case 1 [1] Malena Shumaker appeals her conviction of theft, a Class A misdemeanor.
We affirm.
Issue [2] Shumaker presents one issue, which we restate as: whether there is sufficient
evidence to sustain her conviction for theft as an accomplice.
Facts and Procedural History [3] On December 1, 2015, Shumaker, her boyfriend Michael Myers, and Stephen
Boatman stopped at a convenience store in Sullivan, Indiana, to get gasoline for
their car. Shumaker and Myers entered the store while Boatman stayed with
the car.
[4] A surveillance camera recorded Shumaker’s actions in the store but did not
record any audio. Shumaker waited until another customer had finished his
transaction with the clerk before approaching the counter. Myers momentarily
stepped away from Shumaker and out of the camera’s view. Shumaker tried to
exchange a $25 gift card for cash, but the clerk refused.
[5] Next, Myers walked up to the counter and stood next to Shumaker, near the
cash register. A small red Salvation Army donation bucket sat on the counter
1 Ind. Code § 35-43-4-2 (2014).
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 2 of 7 in front of the cash register, out of the clerk’s sight. As Shumaker and the clerk
were talking, Myers looked down at the bucket, put his hand on it, and furtively
slid it back and forth on the counter until it was close to where he was standing.
[6] When the clerk turned around to get cigarettes for Shumaker, Shumaker turned
to Myers, made eye contact, and said something to him. At that point, Myers
slipped the bucket into his jacket and turned to walk out of the store. As Myers
was leaving the store, Shumaker leaned over and onto the counter and was
talking to the clerk, whose back was to Shumaker, as she appeared to retrieve
another item for Shumaker. Shumaker paid for the cigarettes and purchased $5
worth of gasoline, and then she left the store. The three drove away after
Boatman put gasoline in the car.
[7] Later, the clerk discovered the donation bucket was missing and called the
police. An investigation led to Myers and Shumaker. The State charged
Shumaker with theft. The case was tried to the bench, and the trial court
determined Shumaker was guilty. The court imposed a sentence, and this
appeal followed.
Discussion and Decision [8] Rarely do we have an opportunity to see evidence from the same perspective as
the finder of fact, but in this case the primary piece of evidence is State’s Exhibit
1, the surveillance recording. Nevertheless, we cannot observe the demeanor of
the parties’ witnesses, which is extremely important, and we must be hesitant to
overlook the finder of fact’s role, therein, in doing so. As a result, when an
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 3 of 7 appellant challenges the sufficiency of the evidence to sustain a conviction, we
neither reweigh the evidence nor judge the credibility of the witnesses. Wright v.
State, 828 N.E.2d 904, 905-06 (Ind. 2005). We consider conflicting evidence in
the light most favorable to the judgment. Id. at 906. We will affirm if the
probative evidence and reasonable inferences drawn from the evidence could
have allowed a reasonable finder of fact to find the defendant guilty beyond a
reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
[9] Shumaker argues the State failed to provide sufficient evidence to establish that
she was an active participant in the theft of the donation bucket. To obtain a
conviction for theft, the State was required to prove beyond a reasonable doubt,
that: (1) Shumaker (2) knowingly or intentionally (3) exerted unauthorized
control over property of another person (4) with intent to deprive the other
person of any part of its value. Ind. Code § 35-43-4-2. Myers testified at trial
and admitted to stealing the bucket, claiming that Shumaker had nothing to do
with the crime. The State countered by arguing that Shumaker was guilty of
theft as Myers’ accomplice. As stated by the governing statute: “A person who
knowingly or intentionally aids, induces, or causes another person to commit
an offense commits that offense.” Ind. Code § 35-41-2-4 (1977).
[10] In order to sustain a conviction as an accomplice, there must be evidence of the
defendant’s affirmative conduct, either in the form of acts or words, from which
an inference of common design or purpose to effect the commission of a crime
may reasonably be drawn. Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct.
App. 2005), trans. denied. An accomplice need not participate in each and every
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 4 of 7 element of the crime in order to be convicted of it. Berry v. State, 819 N.E.2d
443, 450 (Ind. Ct. App. 2004), trans. denied. Furthermore, it is not necessary for
the State to show a defendant was party to a preconceived scheme, such as a
conspiracy; it must merely demonstrate concerted action or participation in an
illegal act. Id.
[11] In determining whether a person aided another in the commission of a crime,
we consider: (1) presence at the scene of the crime; (2) companionship with
another engaged in criminal activity; (3) failure to oppose the crime; and (4) a
defendant’s conduct before, during, and after the occurrence of the crime.
Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003). A defendant’s mere presence
during the commission of the crime or failure to oppose the crime are, by
themselves, insufficient to establish accomplice liability. Ransom v. State, 850
N.E.2d 491, 496 (Ind. Ct. App. 2006).
[12] In this case, it is undisputed that Shumaker was present during the theft. She
entered the convenience store with her companion, Myers, and engaged in a
conversation with the clerk while Myers furtively moved the donation bucket
back and forth along the counter until it was near him and out of the sight of
the clerk. It is obvious from the video that just before Myers slipped the bucket
into his jacket, Shumaker turned to Myers, made eye contact, and had a verbal
exchange with him. After Myers had completed the theft, Shumaker did not
extricate herself from the situation, disassociate herself from Myers, or
otherwise oppose the crime. To the contrary, from viewing the video she
appears that she may have distracted the clerk by leaning over and onto the
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 5 of 7 counter and drawing attention to herself, thus allowing Myers to leave the store
unnoticed. Finally, Shumaker got into the car with Myers and Boatman and
drove away.
[13] Shumaker argues that Myers admitted at trial that he stole the donation bucket,
and he claimed he did it without Shumaker’s prior knowledge. The trial court
was the finder of fact, and the task of weighing credibility is reserved to it alone.
The court was not required to believe Myers, who also stated at trial that his
memory of the night in question was hazy because he had been under the
influence of controlled substances. Myers also stated he still loved Shumaker.
In summary, crediting Myers’ testimony would require us to reweigh the
evidence, which our standard of review forbids.
[14] In any event, arguably, it may appear that Shumaker had no advance
knowledge of the crime, but, the video strongly suggests that she became
acutely aware of the crime as it was developing and ultimately occurred and it
could be reasonably construed that she participated in it. Therefore, the
evidence is sufficient to establish that she knowingly took concerted action to
participate in the crime of theft as an accomplice. See Smith v. State, 809 N.E.2d
938, 945 (Ind. Ct. App. 2004), (evidence sufficient to sustain conviction for
resisting law enforcement with a vehicle as an accomplice because, even though
defendant was a passenger in the car, he did not ask the driver to stop and
removed the license plate from the rear window in an attempt to hinder police
identification), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 6 of 7 [15] Shumaker cites Pennington v. State, 459 N.E.2d 764 (Ind. Ct. App. 1984), in
support of her claim, but that case is distinguishable. In that case, a panel of
this Court found the evidence insufficient to support a conviction of theft as an
accomplice because there was no evidence that the defendant distracted the
store employee while her brother left the store with a stolen radio. By contrast,
in this case the surveillance video clearly showed Shumaker making eye contact
with Myers and saying something to him just before he slid the donation bucket
into his jacket. Next, Shumaker leaned over and onto the counter and engaged
in a conversation with the clerk as Myers prepared to leave the store, giving the
appearance of providing cover or a distraction to prevent the detection of the
crime and/or his participation.
Conclusion [16] For the foregoing reasons, we affirm the judgment of the trial court.
[17] Affirmed.
Baker, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016 Page 7 of 7