Melissa Anderson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 17, 2018
• Docket: 49A04-1710-CR-2222
• Status: Published

Opinion

FILED MEMORANDUM DECISION Apr 17 2018, 9:12 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Houdek Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Melissa Anderson, April 17, 2018

Appellant-Defendant, Court of Appeals Case No. 49A04-1710-CR-2222

v. Appeal from the Marion Superior Court State of Indiana, The Honorable James Osborn, Judge Trial Court Cause No. Appellee-Plaintiff 49G09-1604-F6-12926

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018 Page 1 of 5 Case Summary [1] In April of 2016, Appellant-Defendant Melissa Anderson was stopped leaving a

Wal-Mart after having scanned only forty-eight of the fifty-three items in her

shopping cart. Surveillance video revealed that Anderson had handled two of

the items before placing them in her cart un-scanned and that the other three

items were in the same location as another item that had removed, scanned,

and returned to the cart. The State charged Anderson with Level 6 felony theft

with a prior conviction, she was found guilty as charged, and the trial court

sentenced her to 545 days of incarceration with all but eight suspended.

Anderson contends that the State produced insufficient evidence to sustain a

finding that she had the intent to commit theft. Because we disagree, we affirm.

Facts and Procedural History [2] On April 5, 2016, Anderson went to an Indianapolis Wal-Mart with her two

young children. Anderson drew the attention of Sarah Hill, the store’s asset

protection manager, because of the large number of items that she had with her

in the self-checkout line. As she watched surveillance video, Hill noticed a

confrontation between Anderson and the attendant, seemingly because the

attendant had asked Anderson to move to an attended checkout lane according

to store policy. Because Anderson was argumentative and had so many items,

Hill continued to watch her.

Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018 Page 2 of 5 [3] Anderson scanned a box of French toast sticks and put that box as well as a box

of toaster strudels on the scale; the box of toaster strudels ended up in

Anderson’s cart un-scanned. Anderson lifted a bag of dog food from the

ground and placed it into her cart without scanning it. Anderson scanned a

case of Dr. Pepper that was taken from beneath the basket of her cart and

returned it to that location after scanning, but did not scan the other cases of

soda or a bag of potatoes that were in the same location. Anderson passed all

points of sale without paying for the bag of dog food, bag of potatoes, case of

Mountain Dew, case of Pepsi, and box of toaster strudels that were in her cart.

The total value of those items was $30.41. It was determined that Anderson

had paid for only forty-eight of the fifty-three items that were in her cart.

[4] On April 6, 2016, the State charged Anderson with Level 6 felony theft. On

July 19, 2017, a jury found Anderson guilty of Class A misdemeanor theft. The

court found that Anderson had a prior conviction for theft and so entered

judgment of conviction as Level 6 felony. On August 31, 2017, the trial court

sentenced Anderson to 545 days of incarceration and suspended all but eight

days, which Anderson had already served.

Discussion and Decision [5] Anderson contends that the State failed to produce sufficient evidence to sustain

her theft conviction. When reviewing the sufficiency of the evidence, we

neither weigh the evidence nor resolve questions of credibility. Jordan v. State,

656 N.E.2d 816, 817 (Ind. 1995). We look only to the evidence of probative

Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018 Page 3 of 5 value and the reasonable inferences to be drawn therefrom which support the

verdict. Id. If from that viewpoint there is evidence of probative value from

which a reasonable trier of fact could conclude that the defendant was guilty

beyond a reasonable doubt, we will affirm the conviction. Spangler v. State, 607

N.E.2d 720, 724 (Ind. 1993).

[6] To sustain Anderson’s theft conviction, the State was required to establish that

she “knowingly or intentionally exert[ed] unauthorized control over the

property of another person, with intent to deprive the other person of any part

of its value or use.” Ind. Code § 35-43-4-2. Anderson does not dispute that she

left the checkout without paying for five items in her cart but argues that the

State failed to present sufficient evidence to permit the inference that she

knowingly or intentionally committed theft. Intent may be proven by

circumstantial evidence. McCaskill v. State, 3 N.E.3d 1047, 1050 (Ind. Ct. App.

2016). A defendant’s intent can be inferred from his or her conduct and the

natural and usual sequence to which such conduct logically and reasonably

points. Id. With respect to a conviction that rests at least partially on

circumstantial evidence, this Court will only reverse when it can be said that as

a matter of law that reasonable persons could not form inferences with regard to

each material element of the offense. Id.

[7] The State produced sufficient evidence to sustain a finding that Anderson

intended to commit theft. Anderson resisted to point of confrontation when she

was asked to go to an attended register pursuant to a store policy specifically

designed to prevent theft, giving rise to an inference that that is precisely why

Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018 Page 4 of 5 she resisted. At least two of the items at issue, the bag of dog food and the box

of toaster strudels, were handled by Anderson and placed in her cart without

being scanned. Moreover, Anderson removed a case of Dr. Pepper from the

basket of her shopping cart, scanned it, and returned it to the same location

without scanning the three other items that were also under the basket. Under

the circumstances, the jury was entitled to conclude that Anderson did not

accidentally fail to scan the two items that she handled at the register and that

she did not actually fail to notice the three items underneath the basket of her

cart. It is worth noting that most of the items Anderson brought to the register

were, in fact, scanned, indicating a familiarity with the self-checkout process.

Moreover, a case of Dr. Pepper from the same location as three of the un-

scanned items was removed, scanned, and returned, undercutting any

suggestion that the three items were simply overlooked. Anderson’s argument

is nothing more than an invitation to reweigh the evidence, which we will not

do. We conclude that the State produced sufficient evidence to sustain

Anderson’s conviction for Level 6 felony theft.

[8] The judgment of the trial court is affirmed.

Baker, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018 Page 5 of 5