MEMORANDUM DECISION Feb 03 2015, 8:18 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Gregory F. Zoeller Ripstra Law Office Attorney General of Indiana Jasper, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark A. Kimmel, February 3, 2015
Appellant-Defendant, Court of Appeals Cause No. 51A05-1407-CR-351 v. Appeal from the Martin Circuit Court Honorable Lynne El. Ellis, Judge State of Indiana, Cause No. 51C01-1101-FD-003 Appellee-Plaintiff
Friedlander, Judge.
[1] Mark A. Kimmel (Kimmel) appeals his conviction of Theft,1 a class D felony,
presenting the following restated issues for review:
1 The version of the governing statute, i.e., Ind. Code Ann. § 35-43-4-2(a) (West, Westlaw 2013), in effect at the time this offense was committed classified it as a class D felony. This statute has since been revised and
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 1 of 8 1. Must the conviction be reversed because there was a fatal variance between the allegations in the charging information and the evidence adduced at trial?
2. Was the evidence sufficient to support the judgment?
[2] We affirm.
[3] The facts favorable to the conviction are that brothers Tom and Jeff Kimmel
owned and operated Indian Creek Stone Products (Indian Creek), which sold
dimensional stone, sandstone, and veneer to individuals and contractors. The
company’s sole purpose was to quarry and sell stone. It had a long-standing
policy not to compete with its contractor customers and thus did not engage in
installation work. Kimmel, who was the cousin of Tom and Jeff, worked as
Indian Creek’s sales manager. Before he was employed by Indian Creek and
several times during his employment, Kimmel was told by Tom that he
(Kimmel) was not permitted to engage in any installation work with Indian
Creek’s stone, although Kimmel repeatedly expressed an interest in doing such
work.
[4] In 2007, Tom received a call from Jim Sherman, who owned a residence in
Bloomington, Indiana. Sherman was upset because he claimed Indian Creek
had done a poor job of the stone installation on the exterior of his residence.
Tom drove to the residence and inspected the installation. He recognized the
stone as having come from Indian Creek’s quarry and described the installation
in its current form reclassifies this as a Level 6 felony. See I.C. § 35-43-4-2(a)(1)(A) (West, Westlaw current with all 2014 Public Laws of the Second Regular Session and Second Regular Technical Session of the 118th General Assembly). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed before this date, it retains the former classification.
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 2 of 8 job as follows: “Mortar smeared all [sic], it looked like monkeys had laid it.
There was mortal [sic] all over all of the windows. Uh, we walked around the
house, uh, it was, it was the worse [sic] mess that I have ever seen in my life.”
Transcript at 90-91. Tom informed Sherman that Indian Creek did not do
installation work, but Sherman insisted that Indian Creek had indeed done the
installation. At that point, Tom suspected that Kimmel was involved in the
substandard installation.
[5] Several days later, Tom confronted Kimmel about the situation, and Kimmel
denied knowing anything about it. When Tom informed Kimmel that he had
been to the Sherman residence, however, Kimmel confessed to knowledge
about the installation. Kimmel admitted he had been partially paid for doing
the installation and claimed that he planned to pay Indian Creek for the stone.
Tom asked where the money was and Kimmel admitted that he had spent it.
Kimmel was then fired. Later, office manager Staci Kimmel found invoices for
the Sherman installation on Kimmel’s desk, in his handwriting. She also found
a notebook entry in which Kimmel essentially admitted stealing from Indian
Creek. Further investigation revealed that Kimmel had intercepted the delivery
invoice from driver Kevin Elliott before the paperwork was delivered to the
office. This was contrary to normal business practices. Kimmel never paid
Indian Creek for the stone he had removed from the yard and used for the
Sherman installation.
[6] In January 2011, the State charged Kimmel with class D felony theft and the
matter proceeded to trial in June 2014. A jury found Kimmel guilty as charged
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 3 of 8 and the trial court sentenced him to two years, with one year executed and one
year suspended to probation. Kimmel was also ordered to pay restitution.
1.
[7] Kimmel first argues that his conviction must be reversed because there was a
fatal variance between the charging information and the evidence adduced at
trial. Specifically, he notes that the State had evidence of the specific dates of
this offense but did not present it. Moreover, the charging information alleged
that the crime occurred over a thirty-month period (“between June 1, 2007 and
December 14, 2009”), Appellant’s Appendix at 12, whereas the State’s proof
showed only that the acts occurred sometime in 2007.
[8] “A variance is an essential difference between proof and pleading.” Neff v. State,
915 N.E.2d 1026, 1031-32 (Ind. Ct. App. 2009), adhered to on reh’g, 922 N.E.2d
44 (2010) (quoting Reinhardt v. State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008)),
trans denied. A variance is deemed fatal if the defendant is misled by the charge
in the preparation and maintenance of his defense and he was harmed or
prejudiced as a result. Neff v. State, 915 N.E.2d 1026. Generally, failure to
make a specific objection at trial waives the issue of a material variance issue.
Id. At trial, Kimmel did not object to the State’s evidence on this basis.
Therefore, the issue is waived.
[9] Even if it were not waived, however, Kimmel would not be entitled to reversal.
When time is not an element of a crime, or of the essence of the offense, the
State is required to prove only that the offense occurred any time within the
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 4 of 8 statutory period of limitations. Id., see also Ind. Code Ann. § 35-34-1-2(a)(5)
(West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular
Session and Second Regular Technical Session of the 118th General Assembly)
(a charging information must state “the date of the offense with sufficient
particularity to show that the offense was committed within the period of
limitations applicable to that offense”).
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MEMORANDUM DECISION Feb 03 2015, 8:18 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Gregory F. Zoeller Ripstra Law Office Attorney General of Indiana Jasper, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark A. Kimmel, February 3, 2015
Appellant-Defendant, Court of Appeals Cause No. 51A05-1407-CR-351 v. Appeal from the Martin Circuit Court Honorable Lynne El. Ellis, Judge State of Indiana, Cause No. 51C01-1101-FD-003 Appellee-Plaintiff
Friedlander, Judge.
[1] Mark A. Kimmel (Kimmel) appeals his conviction of Theft,1 a class D felony,
presenting the following restated issues for review:
1 The version of the governing statute, i.e., Ind. Code Ann. § 35-43-4-2(a) (West, Westlaw 2013), in effect at the time this offense was committed classified it as a class D felony. This statute has since been revised and
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 1 of 8 1. Must the conviction be reversed because there was a fatal variance between the allegations in the charging information and the evidence adduced at trial?
2. Was the evidence sufficient to support the judgment?
[2] We affirm.
[3] The facts favorable to the conviction are that brothers Tom and Jeff Kimmel
owned and operated Indian Creek Stone Products (Indian Creek), which sold
dimensional stone, sandstone, and veneer to individuals and contractors. The
company’s sole purpose was to quarry and sell stone. It had a long-standing
policy not to compete with its contractor customers and thus did not engage in
installation work. Kimmel, who was the cousin of Tom and Jeff, worked as
Indian Creek’s sales manager. Before he was employed by Indian Creek and
several times during his employment, Kimmel was told by Tom that he
(Kimmel) was not permitted to engage in any installation work with Indian
Creek’s stone, although Kimmel repeatedly expressed an interest in doing such
work.
[4] In 2007, Tom received a call from Jim Sherman, who owned a residence in
Bloomington, Indiana. Sherman was upset because he claimed Indian Creek
had done a poor job of the stone installation on the exterior of his residence.
Tom drove to the residence and inspected the installation. He recognized the
stone as having come from Indian Creek’s quarry and described the installation
in its current form reclassifies this as a Level 6 felony. See I.C. § 35-43-4-2(a)(1)(A) (West, Westlaw current with all 2014 Public Laws of the Second Regular Session and Second Regular Technical Session of the 118th General Assembly). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed before this date, it retains the former classification.
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 2 of 8 job as follows: “Mortar smeared all [sic], it looked like monkeys had laid it.
There was mortal [sic] all over all of the windows. Uh, we walked around the
house, uh, it was, it was the worse [sic] mess that I have ever seen in my life.”
Transcript at 90-91. Tom informed Sherman that Indian Creek did not do
installation work, but Sherman insisted that Indian Creek had indeed done the
installation. At that point, Tom suspected that Kimmel was involved in the
substandard installation.
[5] Several days later, Tom confronted Kimmel about the situation, and Kimmel
denied knowing anything about it. When Tom informed Kimmel that he had
been to the Sherman residence, however, Kimmel confessed to knowledge
about the installation. Kimmel admitted he had been partially paid for doing
the installation and claimed that he planned to pay Indian Creek for the stone.
Tom asked where the money was and Kimmel admitted that he had spent it.
Kimmel was then fired. Later, office manager Staci Kimmel found invoices for
the Sherman installation on Kimmel’s desk, in his handwriting. She also found
a notebook entry in which Kimmel essentially admitted stealing from Indian
Creek. Further investigation revealed that Kimmel had intercepted the delivery
invoice from driver Kevin Elliott before the paperwork was delivered to the
office. This was contrary to normal business practices. Kimmel never paid
Indian Creek for the stone he had removed from the yard and used for the
Sherman installation.
[6] In January 2011, the State charged Kimmel with class D felony theft and the
matter proceeded to trial in June 2014. A jury found Kimmel guilty as charged
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 3 of 8 and the trial court sentenced him to two years, with one year executed and one
year suspended to probation. Kimmel was also ordered to pay restitution.
1.
[7] Kimmel first argues that his conviction must be reversed because there was a
fatal variance between the charging information and the evidence adduced at
trial. Specifically, he notes that the State had evidence of the specific dates of
this offense but did not present it. Moreover, the charging information alleged
that the crime occurred over a thirty-month period (“between June 1, 2007 and
December 14, 2009”), Appellant’s Appendix at 12, whereas the State’s proof
showed only that the acts occurred sometime in 2007.
[8] “A variance is an essential difference between proof and pleading.” Neff v. State,
915 N.E.2d 1026, 1031-32 (Ind. Ct. App. 2009), adhered to on reh’g, 922 N.E.2d
44 (2010) (quoting Reinhardt v. State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008)),
trans denied. A variance is deemed fatal if the defendant is misled by the charge
in the preparation and maintenance of his defense and he was harmed or
prejudiced as a result. Neff v. State, 915 N.E.2d 1026. Generally, failure to
make a specific objection at trial waives the issue of a material variance issue.
Id. At trial, Kimmel did not object to the State’s evidence on this basis.
Therefore, the issue is waived.
[9] Even if it were not waived, however, Kimmel would not be entitled to reversal.
When time is not an element of a crime, or of the essence of the offense, the
State is required to prove only that the offense occurred any time within the
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 4 of 8 statutory period of limitations. Id., see also Ind. Code Ann. § 35-34-1-2(a)(5)
(West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular
Session and Second Regular Technical Session of the 118th General Assembly)
(a charging information must state “the date of the offense with sufficient
particularity to show that the offense was committed within the period of
limitations applicable to that offense”). Pursuant to Ind. Code Ann. § 35-41-4-
2(a)(1) (West, Westlaw current with all 2014 Public Laws of the 2014 Second
Regular Session and Second Regular Technical Session of the 118th General
Assembly), the statute of limitations for a class D felony is five years after the
commission of the offense. The evidence showed that this incident occurred in
2007. The charging information was filed in January 2011. Therefore, the
information was filed within the five-year limitations period.
[10] Moreover, we discern no fatal variance between the offenses alleged in the
charging instrument and the proof presented at trial. The charging instrument
alleged that Kimmel exerted unauthorized control over Indian Creek products
between June 1, 2007 and December 14, 2009. The probable cause affidavit
provided to Kimmel during discovery reflected that the Sherman incident was
the only incident alleged during that time. Kimmel makes no claim that he is
vulnerable to the risk of being prosecuted for the same conduct as a result of the
alleged fatal variance. Therefore, Kimmel has failed to establish either element
of the Neff test required to establish a fatal variance.
2.
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 5 of 8 [11] Kimmel contends the evidence was not sufficient to support his conviction. He
argues that (1) the sale of stone to Sherman was not unauthorized, and (2) he
intended to pay Indian Creek for the stone and therefore did not intend to
deprive Indian Creek of the stone’s value and use. In order to establish the
offense of theft as a class D felony as charged, the State was required to prove
that Kimmel knowingly or intentionally exerted unauthorized control over
Indian Creek property, with the intent to deprive Indian Creek of any part of its
value or use. I.C. § 35-43-4-2(a). When reviewing the sufficiency of the
evidence needed to support a criminal conviction, we neither reweigh evidence
nor judge witness credibility. Thang v. State, 10 N.E.3d 1256 (Ind. 2014). We
consider only “the evidence supporting the judgment and any reasonable
inferences that can be drawn from such evidence.” Id. at 1258 (quoting Henley
v. State, 881 N.E.2d 639, 652 (Ind. 2008)). We will affirm a conviction “if there
is substantial evidence of probative value supporting each element of the offense
such that a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Id. A verdict of guilt may be based upon an
inference that is reasonably drawn from the evidence. All inferences are viewed
in a light most favorable to the conviction. Bailey v. State, 979 N.E.2d 133 (Ind.
2012).
[12] We begin with Kimmel’s argument that the sale of stone to Sherman was not
unauthorized. It is true, as Kimmel points out, that he was authorized as sales
manager to sell the company’s product to customers such as Sherman. The
State presented evidence, however, that in this particular case Sherman paid
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 6 of 8 Kimmel personally for the stone that Sherman purchased but Kimmel did not
turn that money over to Indian Creek. The evidence indicated that Kimmel
was not authorized to accept payment for stone and keep such payment for
himself. Such activity, i.e., accepting payment for Indian Creek’s product and
using the money himself, was not authorized by Indian Creek’s owner, Tom
Kimmel. Thus, Kimmel intentionally exerted unauthorized control over Indian
Creek’s property.
[13] Kimmel’s second argument is that he did not intend to deprive Indian Creek of
any part of the value of its property because he intended to pay Indian Creek for
the stone that he sold to Sherman. Intent is a mental function. Therefore,
absent a confession, it often must be proven by circumstantial evidence. See
Ritchie v. State, 809 N.E.2d 258 (Ind. 2004), cert. denied, 546 U.S. 828 (2005).
The fact-finder is entitled to infer intent “from a defendant’s conduct and the
natural and usual sequence to which such conduct logically and reasonably
points.” Hightower v. State, 866 N.E.2d 356, 368 (Ind. Ct. App. 2007) (quoting
E.H. v. State, 764 N.E.2d 681, 683 (Ind. Ct. App. 2002), trans. denied), trans.
denied. We first observe that the trial court was not required to believe
Kimmel’s claim that he intended to reimburse Indian Creek. See Edgecomb v.
State, 673 N.E.2d 1185 (Ind. 1985). Indeed, Kimmel’s actions in this
transaction were consistent with the view that he did not intend to pay Indian
Creek. He uncharacteristically intercepted the delivery driver and delivery
paperwork such that the relevant Indian Creek personnel were not aware of the
transaction. After receiving payment for the stone from Sherman, Kimmel took
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 7 of 8 that money and spent it on other things. As of the time of the filing of the
charging information approximately four years later, Kimmel had yet to repay
Indian Creek for the stone. The evidence was sufficient to prove the elements
of theft.
[14] Judgment affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015 Page 8 of 8