MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 26 2020, 11:22 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Tina L. Mann Wieneke Law Office, LLC Deputy Attorney General Brooklyn, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shawn Lyndell Lewis, May 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2727 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Gary J. Schutte, Appellee-Plaintiff Magistrate Trial Court Cause No. 82C01-1908-F6-5567
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 1 of 6 [1] Shawn Lewis appeals his conviction for Level 6 Felony Theft,1 arguing that the
evidence is insufficient to support the conviction. Finding the evidence
sufficient, we affirm.
Facts [2] On July 25, 2019, at 2:10 a.m, Lewis entered a Walmart store riding an electric
shopping cart with a large duffle-like black bag in the basket of the cart. The bag
appeared empty when he entered the store. Lewis proceeded to the electronics
department and backed up the cart towards a locked glass case that contained
Apple products and headphones. After looking around, Lewis then turned
toward the glass case, broke the lock, and took items out of the case and placed
them in the bag in his cart; Lewis stopped removing items only when other
shoppers were in the neighboring aisle.
[3] Next, Lewis rode the cart with the now-full black bag away from the electronics
case and back through the store, grabbing some of the plastic bags available at
the checkout lanes in the garden center area of the store. He rode around the
store some more and eventually rode toward the front of the store, entering a
closed self-checkout area. Lewis then left the closed self-checkout area with the
cart containing the black bag and plastic shopping bags he had grabbed from the
checkout area and exited through the first set of double doors at the front of the
store. He parked the cart off to the side and remained in that area for
1 Ind. Code § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 2 of 6 approximately six minutes while he placed some items from his cart into the
Walmart plastic shopping bags. He then walked out of the second set of double
doors to the outside, carrying the shopping bags and wearing the black bag over
his shoulders like a backpack. Lewis did not pay for anything before exiting the
store.
[4] Later that morning, loss prevention officer David Shepard arrived for work at
the Walmart store and was informed about the empty electronics case and
possible theft. Shepard reviewed the video footage and went to look at the glass
electronics case, and found that “[i]t was empty and where the lock is supposed
to be at, that sleeve was broken.” Tr. Vol. II p. 36. According to the probable
cause affidavit, a few weeks later an officer was dispatched to the same
Walmart store in response to a report of a customer refusing to leave; the
customer was identified as Lewis and matched the appearance of the person in
the surveillance footage from the night of the alleged theft. See Appellant’s App.
p. 14.
[5] On August 12, 2019, the State charged Lewis with two counts of Level 6 felony
theft and one count of Class B misdemeanor possession of marijuana. 2 On
September 26, 2019, the trial court granted Lewis’s motion to sever, and the
jury trial held the next day proceeded on one theft charge. On September 27,
2019, the jury found Lewis guilty of Class A misdemeanor theft. Following the
2 During a search incident to Lewis’s arrest, the searching officer discovered a small plastic baggie in Lewis’s wallet containing a leafy green substance that tested positive for marijuana. Appellant’s App. p. 14.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 3 of 6 verdict, Lewis pleaded guilty to an enhancement to a Level 6 felony due to a
prior conviction. On October 22, 2019, the trial court sentenced Lewis to two
years in the Department of Correction. Lewis now appeals.
Discussion and Decision [6] Lewis’s sole argument on appeal is that the evidence is insufficient to support
the conviction. More specifically, he argues that the evidence shows only that
he removed the items from the glass electronics case, but that the State failed to
present evidence showing the items were never actually purchased or otherwise
left behind in the store.
[7] In reviewing the sufficiency of the evidence to support a conviction, we must
consider only the probative evidence and the reasonable inferences supporting
the verdict, and we will neither assess witness credibility nor reweigh the
evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless
no reasonable factfinder could find the elements of the crime proved beyond a
reasonable doubt. Id.
[8] To convict Lewis of theft, the State had to prove beyond a reasonable doubt
that Lewis “knowingly or intentionally exert[ed] unauthorized control over
property of another person, with intent to deprive the other person of any part
of its value or use.” I.C. § 35-43-4-2(a). To “exert control over property” in this
context means “to obtain, take, carry, drive, lead away, conceal, abandon, sell,
convey, encumber, or possess property.” I.C. § 35-43-4-1(a). A person’s control
over another’s property is then “unauthorized” if the control is exerted without
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 4 of 6 the other person’s consent. Id. § 35-43-4-1(b). Evidence that a person “concealed
property displayed or offered for sale or hire” and “removed the property from
any place within the business premises at which it was displayed or offered to a
point beyond that at which payment should be made” constitutes prima facie
evidence of intent to deprive the property owner of part of the property’s value
and that the person exerted unauthorized control. I.C. § 35-43-4-4(c).
[9] Here, the jury watched the store surveillance video footage showing Lewis
entering the store with an electric shopping cart containing a black duffle-like
bag, riding to the electronics section, breaking the lock to the glass case,
removing items, and heaving the black bag back into the cart. The footage also
showed Lewis then leaving the electronics section with the bag in his cart,
riding around the store to the garden center, grabbing plastic shopping bags
from a closed register, driving the cart into a closed self-checkout area
unattended by employees, grabbing more empty plastic bags, and finally
pausing between the two sets of exit doors to place some loose items in the
shopping bags and exiting the store with the shopping bags and the now-full
black bag. The video shows that Lewis made no attempt to proceed to an open
register to make any purchases before leaving the store.
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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 May 26 2020, 11:22 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Tina L. Mann Wieneke Law Office, LLC Deputy Attorney General Brooklyn, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shawn Lyndell Lewis, May 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2727 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Gary J. Schutte, Appellee-Plaintiff Magistrate Trial Court Cause No. 82C01-1908-F6-5567
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 1 of 6 [1] Shawn Lewis appeals his conviction for Level 6 Felony Theft,1 arguing that the
evidence is insufficient to support the conviction. Finding the evidence
sufficient, we affirm.
Facts [2] On July 25, 2019, at 2:10 a.m, Lewis entered a Walmart store riding an electric
shopping cart with a large duffle-like black bag in the basket of the cart. The bag
appeared empty when he entered the store. Lewis proceeded to the electronics
department and backed up the cart towards a locked glass case that contained
Apple products and headphones. After looking around, Lewis then turned
toward the glass case, broke the lock, and took items out of the case and placed
them in the bag in his cart; Lewis stopped removing items only when other
shoppers were in the neighboring aisle.
[3] Next, Lewis rode the cart with the now-full black bag away from the electronics
case and back through the store, grabbing some of the plastic bags available at
the checkout lanes in the garden center area of the store. He rode around the
store some more and eventually rode toward the front of the store, entering a
closed self-checkout area. Lewis then left the closed self-checkout area with the
cart containing the black bag and plastic shopping bags he had grabbed from the
checkout area and exited through the first set of double doors at the front of the
store. He parked the cart off to the side and remained in that area for
1 Ind. Code § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 2 of 6 approximately six minutes while he placed some items from his cart into the
Walmart plastic shopping bags. He then walked out of the second set of double
doors to the outside, carrying the shopping bags and wearing the black bag over
his shoulders like a backpack. Lewis did not pay for anything before exiting the
store.
[4] Later that morning, loss prevention officer David Shepard arrived for work at
the Walmart store and was informed about the empty electronics case and
possible theft. Shepard reviewed the video footage and went to look at the glass
electronics case, and found that “[i]t was empty and where the lock is supposed
to be at, that sleeve was broken.” Tr. Vol. II p. 36. According to the probable
cause affidavit, a few weeks later an officer was dispatched to the same
Walmart store in response to a report of a customer refusing to leave; the
customer was identified as Lewis and matched the appearance of the person in
the surveillance footage from the night of the alleged theft. See Appellant’s App.
p. 14.
[5] On August 12, 2019, the State charged Lewis with two counts of Level 6 felony
theft and one count of Class B misdemeanor possession of marijuana. 2 On
September 26, 2019, the trial court granted Lewis’s motion to sever, and the
jury trial held the next day proceeded on one theft charge. On September 27,
2019, the jury found Lewis guilty of Class A misdemeanor theft. Following the
2 During a search incident to Lewis’s arrest, the searching officer discovered a small plastic baggie in Lewis’s wallet containing a leafy green substance that tested positive for marijuana. Appellant’s App. p. 14.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 3 of 6 verdict, Lewis pleaded guilty to an enhancement to a Level 6 felony due to a
prior conviction. On October 22, 2019, the trial court sentenced Lewis to two
years in the Department of Correction. Lewis now appeals.
Discussion and Decision [6] Lewis’s sole argument on appeal is that the evidence is insufficient to support
the conviction. More specifically, he argues that the evidence shows only that
he removed the items from the glass electronics case, but that the State failed to
present evidence showing the items were never actually purchased or otherwise
left behind in the store.
[7] In reviewing the sufficiency of the evidence to support a conviction, we must
consider only the probative evidence and the reasonable inferences supporting
the verdict, and we will neither assess witness credibility nor reweigh the
evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless
no reasonable factfinder could find the elements of the crime proved beyond a
reasonable doubt. Id.
[8] To convict Lewis of theft, the State had to prove beyond a reasonable doubt
that Lewis “knowingly or intentionally exert[ed] unauthorized control over
property of another person, with intent to deprive the other person of any part
of its value or use.” I.C. § 35-43-4-2(a). To “exert control over property” in this
context means “to obtain, take, carry, drive, lead away, conceal, abandon, sell,
convey, encumber, or possess property.” I.C. § 35-43-4-1(a). A person’s control
over another’s property is then “unauthorized” if the control is exerted without
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 4 of 6 the other person’s consent. Id. § 35-43-4-1(b). Evidence that a person “concealed
property displayed or offered for sale or hire” and “removed the property from
any place within the business premises at which it was displayed or offered to a
point beyond that at which payment should be made” constitutes prima facie
evidence of intent to deprive the property owner of part of the property’s value
and that the person exerted unauthorized control. I.C. § 35-43-4-4(c).
[9] Here, the jury watched the store surveillance video footage showing Lewis
entering the store with an electric shopping cart containing a black duffle-like
bag, riding to the electronics section, breaking the lock to the glass case,
removing items, and heaving the black bag back into the cart. The footage also
showed Lewis then leaving the electronics section with the bag in his cart,
riding around the store to the garden center, grabbing plastic shopping bags
from a closed register, driving the cart into a closed self-checkout area
unattended by employees, grabbing more empty plastic bags, and finally
pausing between the two sets of exit doors to place some loose items in the
shopping bags and exiting the store with the shopping bags and the now-full
black bag. The video shows that Lewis made no attempt to proceed to an open
register to make any purchases before leaving the store.
[10] Lewis concedes that there is sufficient evidence to show he broke the lock to the
glass case and removed the electronics from the case, but claims there is
insufficient evidence that Lewis either did not actually purchase the items or
“did not leave the items somewhere in the store.” Appellant’s Br. p. 8. The only
case he cites for support is Purvis v. State, in which this Court found the evidence
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 5 of 6 was sufficient to support a conviction of theft where video surveillance footage
showed the defendant taking video games, concealing them underneath his
clothing and shopping cart, and leaving the store without stopping to pay for
the concealed games. 87 N.E.3d 1119, 1122-23 (Ind. Ct. App. 2017), aff’d on
reh’g. Lewis attempts to distinguish his case by emphasizing the fact that the
Purvis defendant was ultimately found in possession of the items at his home
more than a week later. Id. at 1123. But this argument ignores the portion of the
opinion where we concluded that the video evidence showing the defendant
taking and concealing video games, combined with the lack of evidence
showing he either paid for the items or left them in the store, are “circumstances
[that] alone would be sufficient to support the determination that Purvis
knowingly or intentionally exerted unauthorized control over Walmart’s
property with an intent to deprive Walmart of the property’s value.” Id. at 1124;
see also K.F. v. State, 961 N.E.2d 501, 508 (Ind. Ct. App. 2012) (“[T]he theft
statute does not require the State to prove that a defendant was found in
possession of the stolen property or that the property was later recovered in
order to find that a person committed theft.”).
[11] As such, we find that the jury could reasonably conclude from the video footage
evidence of Lewis that all statutory elements of theft were supported by
sufficient evidence.
[12] The judgment of the trial court is affirmed.
Bradford, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020 Page 6 of 6