MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 16 2020, 10:13 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 Ann M Sutton Curtis T. Hill, Jr. Indianapolis, IN Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Melva Wright, July 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2344 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Charnette D. Appellee-Plaintiff Garner, Judge The Honorable Ronnie Huerta, Magistrate Trial Court Cause No. 49G09-1810-F6-33847
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 1 of 7 Case Summary
[1] Melva Wright appeals her conviction of theft as a Level 6 felony. She raises two
issues on appeal:
I. Whether the State presented sufficient evidence to convict her of theft; and
II. Whether her 270-day sentence is inappropriate in light of the nature of the offense and her character.
[2] We affirm.
Facts & Procedural History
[3] Sometime in August 2018, Wright began living at Herbert Smith’s residence.
The two had not seen each other in many years, having originally met at church
where Smith was an assistant pastor. After seeing Wright on the street and
learning that she was homeless, Smith offered her a place to stay. Wright lived
with Smith for about three months and during that time he bought her food and
clothing but did not give her a key.
[4] Smith owned a Samsung smart watch, which he received as part of a package
deal with his phone and tablet. He occasionally wore the watch, but most of the
time it remained on a computer stand next to his bed. One day he noticed the
watch was missing, so he questioned Wright. She denied taking it, but after
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 2 of 7 repeated questioning, Wright admitted to pawning it. Smith had not given
Wright permission to do anything with the watch.
[5] Wright took Smith to Cash America where she had pawned the watch. After
locating his watch, Smith was unable to obtain the watch from Cash America
until law enforcement arrived on scene and made a report. An investigation
revealed that the watch matched the serial number of Smith’s watch.
Furthermore, identification information and fingerprint copies taken when the
watch was pawned matched those of the seller, Wright.
[6] On October 3, 2018, the State charged Wright with Class A misdemeanor theft
and Level 6 felony theft. After a jury trial, Wright was convicted of a Class A
misdemeanor theft, which was enhanced to Level 6 felony theft based on prior
convictions of theft and robbery. The court then sentenced Wright to 270 days
in jail. She now appeals.
Discussion & Decision
I. Sufficiency of Evidence
[7] Wright argues that the State failed to show sufficient evidence to convict her of
theft. The standard of review for such a claim is well settled. A reviewing court
must consider only the probative evidence and reasonable inferences supporting
the conviction and should not assess witness credibility or reweigh the evidence.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The evidence is sufficient if an
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 3 of 7 inference may be reasonably drawn from it to support the conviction. Id. at 147.
Further, a conviction should be upheld unless, “no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt.” Id. at 146-
47.
[8] In order to prove a conviction for theft, the State was required to show, beyond
a reasonable doubt, that Wright knowingly or intentionally exerted
unauthorized control over Smith’s Samsung smart watch with the intent to
deprive Smith of any part of its value or use. See Ind. Code § 35-43-4-2(a).
[9] Wright contends that there is insufficient evidence to prove that she pawned the
watch without Smith’s approval. However, she does not dispute that she
pawned the watch, as evidenced by her identification and fingerprint obtained
from the pawn store. She claims only that Smith’s testimony is insufficient to
show that she did not have permission to pawn the watch.
[10] It is not this court’s responsibility to reweigh evidence or assess witness
credibility, specifically Smith’s credibility. Here, Smith testified that he did not
give Wright permission to have his watch or do anything with it, expressly
testifying that she did not have permission to pawn the watch. Smith housed
Wright because she was in need of a place to stay and provided her with food
and clothing. Upon discovering that his watch had disappeared, Smith
questioned Wright as to its whereabouts and she admitted to pawning it. At no
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 4 of 7 point did Smith give Wright permission to do so. For these reasons, we
conclude that the State presented sufficient evidence to convict Wright of theft.
II. Sentencing
[11] Wright contends that her 270-day sentence that is to be executed in jail is
inappropriate. Sentencing is principally a discretionary function, and therefore
the trial court’s judgement should receive considerable deference. Cardwell v.
State, 895 N.E.2d 1219, 1223 (Ind. 2008). Pursuant to Indiana Appellate Rule
7(b), an appellate court may revise a sentence if it finds that the sentence is
“inappropriate in light of the nature of the offense and the character of the
offender.” “The question is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate.” Fonner v.
State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). When considering
appropriateness, there are myriad of factors to take into account and ultimately
there is no right answer in determining a proper sentence. Cardwell, 895 N.E.2d
at 1224. Furthermore, the defendant has the burden of persuading us that his or
her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
[12] The starting point for an appropriateness analysis is to look at the advisory
sentence the legislature has selected for the crime committed and compare it to
the sentence imposed. Connor v. State, 58 N.E.3d 215, 220 (Ind. Ct. App. 2020).
The sentencing range for a Level 6 felony is between six months and two and a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 5 of 7 half years, with an advisory sentence of one year. Ind. Code. § 35-50-2-7(b).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 16 2020, 10:13 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 Ann M Sutton Curtis T. Hill, Jr. Indianapolis, IN Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Melva Wright, July 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2344 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Charnette D. Appellee-Plaintiff Garner, Judge The Honorable Ronnie Huerta, Magistrate Trial Court Cause No. 49G09-1810-F6-33847
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 1 of 7 Case Summary
[1] Melva Wright appeals her conviction of theft as a Level 6 felony. She raises two
issues on appeal:
I. Whether the State presented sufficient evidence to convict her of theft; and
II. Whether her 270-day sentence is inappropriate in light of the nature of the offense and her character.
[2] We affirm.
Facts & Procedural History
[3] Sometime in August 2018, Wright began living at Herbert Smith’s residence.
The two had not seen each other in many years, having originally met at church
where Smith was an assistant pastor. After seeing Wright on the street and
learning that she was homeless, Smith offered her a place to stay. Wright lived
with Smith for about three months and during that time he bought her food and
clothing but did not give her a key.
[4] Smith owned a Samsung smart watch, which he received as part of a package
deal with his phone and tablet. He occasionally wore the watch, but most of the
time it remained on a computer stand next to his bed. One day he noticed the
watch was missing, so he questioned Wright. She denied taking it, but after
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 2 of 7 repeated questioning, Wright admitted to pawning it. Smith had not given
Wright permission to do anything with the watch.
[5] Wright took Smith to Cash America where she had pawned the watch. After
locating his watch, Smith was unable to obtain the watch from Cash America
until law enforcement arrived on scene and made a report. An investigation
revealed that the watch matched the serial number of Smith’s watch.
Furthermore, identification information and fingerprint copies taken when the
watch was pawned matched those of the seller, Wright.
[6] On October 3, 2018, the State charged Wright with Class A misdemeanor theft
and Level 6 felony theft. After a jury trial, Wright was convicted of a Class A
misdemeanor theft, which was enhanced to Level 6 felony theft based on prior
convictions of theft and robbery. The court then sentenced Wright to 270 days
in jail. She now appeals.
Discussion & Decision
I. Sufficiency of Evidence
[7] Wright argues that the State failed to show sufficient evidence to convict her of
theft. The standard of review for such a claim is well settled. A reviewing court
must consider only the probative evidence and reasonable inferences supporting
the conviction and should not assess witness credibility or reweigh the evidence.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The evidence is sufficient if an
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 3 of 7 inference may be reasonably drawn from it to support the conviction. Id. at 147.
Further, a conviction should be upheld unless, “no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt.” Id. at 146-
47.
[8] In order to prove a conviction for theft, the State was required to show, beyond
a reasonable doubt, that Wright knowingly or intentionally exerted
unauthorized control over Smith’s Samsung smart watch with the intent to
deprive Smith of any part of its value or use. See Ind. Code § 35-43-4-2(a).
[9] Wright contends that there is insufficient evidence to prove that she pawned the
watch without Smith’s approval. However, she does not dispute that she
pawned the watch, as evidenced by her identification and fingerprint obtained
from the pawn store. She claims only that Smith’s testimony is insufficient to
show that she did not have permission to pawn the watch.
[10] It is not this court’s responsibility to reweigh evidence or assess witness
credibility, specifically Smith’s credibility. Here, Smith testified that he did not
give Wright permission to have his watch or do anything with it, expressly
testifying that she did not have permission to pawn the watch. Smith housed
Wright because she was in need of a place to stay and provided her with food
and clothing. Upon discovering that his watch had disappeared, Smith
questioned Wright as to its whereabouts and she admitted to pawning it. At no
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 4 of 7 point did Smith give Wright permission to do so. For these reasons, we
conclude that the State presented sufficient evidence to convict Wright of theft.
II. Sentencing
[11] Wright contends that her 270-day sentence that is to be executed in jail is
inappropriate. Sentencing is principally a discretionary function, and therefore
the trial court’s judgement should receive considerable deference. Cardwell v.
State, 895 N.E.2d 1219, 1223 (Ind. 2008). Pursuant to Indiana Appellate Rule
7(b), an appellate court may revise a sentence if it finds that the sentence is
“inappropriate in light of the nature of the offense and the character of the
offender.” “The question is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate.” Fonner v.
State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). When considering
appropriateness, there are myriad of factors to take into account and ultimately
there is no right answer in determining a proper sentence. Cardwell, 895 N.E.2d
at 1224. Furthermore, the defendant has the burden of persuading us that his or
her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
[12] The starting point for an appropriateness analysis is to look at the advisory
sentence the legislature has selected for the crime committed and compare it to
the sentence imposed. Connor v. State, 58 N.E.3d 215, 220 (Ind. Ct. App. 2020).
The sentencing range for a Level 6 felony is between six months and two and a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 5 of 7 half years, with an advisory sentence of one year. Ind. Code. § 35-50-2-7(b).
Wright acknowledges that her sentence is below the advisory sentence but
argues that it was still too harsh given the petty nature of the offense and the
steps she is actively taking to improve her character.
[13] We begin by acknowledging that the nature of the offense is not particularly
egregious, except that she chose to steal from someone who considered her a
friend and had been helping her in a time of need. By doing so, she violated
Smith’s trust and the sanctity of his home. She also denied taking it when Smith
confronted her about it, only admitting it after his repeated questioning. We
find nothing about the nature of the offense that warrants a reduction in her
sentence.
[14] When considering the character of the offender, we look at “substantial
virtuous traits or persistent examples of good character.” Moon v. State, 110
N.E.3d 1156, 1162 (Ind. Ct. App. 2018). Further, “one relevant fact is the
defendant’s criminal history.” Denham v. State, 142 N.E.3d 514, 517 (Ind. Ct.
App. 2020).
[15] The record shows that Wright has an extensive criminal history. She has at least
eight prior misdemeanor convictions, and five prior felony convictions. These
crimes include theft, prostitution, resisting law enforcement, robbery, and
arson. While many of her convictions are dated, we observe that her most
recent was for a theft committed less than a year before the current incident and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 6 of 7 shortly after her release from serving a lengthy sentence for Class B felony
arson.
[16] Wright asserts that her efforts in the months leading up to the sentencing to
improve herself, taking classes at Ivy Tech and applying for housing, reflect
highly of her character. While we commend her on her recent efforts to
improve her character, her past convictions cannot be ignored. In light of her
criminal history and her failure to appear in front of the trial court on multiple
occasions, Wright’s less than advisory sentence is not inappropriate.
[17] Wright has failed to show that her sentence of 270 days in jail is inappropriate
in light of the nature of the offense and her character.
[18] Judgment affirmed.
Bailey, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020 Page 7 of 7