MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 20 2015, 10:59 am 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
Sherri Lane, July 20, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1410-CR-715 v. Appeal from the Marion Superior Court
State of Indiana, Lower Court Cause No. 49F09-1307-FD-44299 Appellee-Petitioner. The Honorable Barbara Crawford, Judge
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 1 of 7 Statement of the Case [1] Appellant/Defendant, Sherri Lane (“Lane”), appeals her conviction of Class D
felony theft where the judgement was entered as a Class A misdemeanor. 1
Lane argues that there was insufficient evidence to demonstrate an intent to
deprive K-Mart of its property. We disagree and affirm her conviction.
[2] We affirm.
Issue Whether there was sufficient evidence to support Lane’s theft conviction.
Facts [3] On July 7, 2013, Lane entered a K-Mart store to return a “Dora [the Explorer]
[] 4 Wheeler Quad [‘car’].” (Tr. 54). Lane placed the car inside of a shopping
cart beside the car’s packaging box and then approached the service desk. Lane
presented her receipt and requested a refund. However, K-Mart employees told
her that a refund could not be issued because the date on the receipt was past
“the refund policy date.” (Tr. 55). Janetta Sumners (“Sumners”), a loss
prevention associate, noticed that Lane became upset by the refusal of her
refund request and heard Lane say that “she would never shop there again.”
(Tr. 57). Sumners then observed Lane proceeding to the store’s north exit and
1 IND. CODE § 35-43-4-2(a). We note that effective July 1, 2014, a new version of this theft statute was enacted and that Class D felony theft is now a Class A misdemeanor. Because Lane committed her crime in 2013, we will apply the statute in effect at that time.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 2 of 7 watched her turn around before exiting and begin to shop. At that time, the car
and its empty packaging box remained in Lane’s cart.
[4] Sumners informed another loss prevention associate to watch Lane on the
surveillance cameras because Lane’s behavior was unusual. After returning to
the office to view the surveillance video as it recorded, Sumners saw Lane select
items and put “all but a couple of the items” into the car’s empty packaging
box. (Tr. 65). Sumners also saw Lane place a K-Mart bag over the car’s
packaging box. Thereafter, Lane passed through both sets of the doors at the
north exit with her cart of unpurchased merchandise. K-Mart loss prevention
personnel detained Lane and took her to the security office. When Sumners
asked Lane why she had stolen the items in the cart, Lane responded that “she
was upset that she didn’t get a refund.” (Tr. 77). Lane was then asked to
remove the items from the car’s packaging box; the various items recovered
totaled approximately $600 in value.
[5] Soon after, Sumners called the police and reported that they had a shoplifter in
custody. Officer Sean McCurdy (“Officer McCurdy”) of the Indianapolis
Metropolitan Police Department arrived at the store’s security office, and he
asked Lane why she had been stealing. Lane responded that she was upset that
she could not return the car. While Lane was speaking to police, her teenage
son was waiting outside of the office. When he came back into the office, Lane
told her son “this is why you do not do things out of anger.” (Tr. 79).
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 3 of 7 [6] The State charged Lane with Class D felony theft on July 7, 2013. On July 23,
2014, the trial court held a jury trial. During the trial, Sumners and Officer
McCurdy testified to the above mentioned facts. Lane testified and denied
making any self-incriminating statements to Sumners, her son, or Officer
McCurdy. Lane stated that she was a frequent shopper at K-Mart and that she
had gone to the store to return the car and shop for school items. She claimed
that she had been upset about not being able to return the item and had been
planning to leave, but, her son had reminded her about school shopping. She
also testified that she had exited the store with the unpurchased merchandise,
not intending to steal them, but to purchase paper plates that she claimed were
on display outside of the north entrance. Because she was unable to locate an
employee to get permission to go outside of the store to get the paper plates,
Lane stated that she was unwilling to leave the car and her purse in the cart
unattended.
[7] During the trial, both Sumners and Officer McCurdy testified that Lane never
mentioned paper plates to them, and Sumners testified that she had never seen
K-Mart selling plates during a sidewalk sale. Similarly, she also testified that
the only sidewalk sale at that time was a sale for flowers located near the south
entrance. The surveillance footage introduced as an exhibit during the trial also
contradicted Lane’s claim that she looked for a K-mart associate before she
exited the north entrance.
[8] At the conclusion of the trial, the jury found Lane guilty as charged. At Lane’s
sentencing hearing, the trial court entered her theft conviction as a Class A
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 4 of 7 misdemeanor. The trial court sentenced Lane to three hundred sixty-five (365)
days, with three hundred fifty-nine (359) days suspended to probation and a
total credit time of six (6) days. Lane now appeals.
Decision [9] Lane contends that her theft conviction was not supported by sufficient
evidence. Specifically, she argues that there was insufficient evidence to
establish her intent to deprive K-Mart of the value and use of the unpurchased
items.
[10] Our supreme court has held that when the sufficiency of evidence is challenged
we will consider only the evidence most favorable to the judgement without
reweighing that evidence or judging the credibility of the witness. Wright v.
State, 828 N.E.2d 904, 906 (Ind. 2005). We respect the jury’s “exclusive
province to weigh conflicting evidence.” Alkhalidi v. State, 753 N.E.2d 625, 627
(Ind. 2001). Likewise, it is not necessary for the evidence to “‘overcome every
reasonable hypothesis of innocence.’” Drane v. State, 867 N.E.2d 144, 147 (Ind.
2007) (quoting Moore v. State, 652 N.E. 2d 53, 55 (Ind. 1995), reh’g denied). We
will affirm the trial court “‘if the probative evidence and reasonable inferences
drawn from the evidence could have allowed a reasonable trier of fact to find
the defendant guilty beyond a reasonable doubt.’” McHenry v. State, 820 N.E.2d
124, 126 (Ind. 2005) (quoting Tobar v. State,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 20 2015, 10:59 am 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
Sherri Lane, July 20, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1410-CR-715 v. Appeal from the Marion Superior Court
State of Indiana, Lower Court Cause No. 49F09-1307-FD-44299 Appellee-Petitioner. The Honorable Barbara Crawford, Judge
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 1 of 7 Statement of the Case [1] Appellant/Defendant, Sherri Lane (“Lane”), appeals her conviction of Class D
felony theft where the judgement was entered as a Class A misdemeanor. 1
Lane argues that there was insufficient evidence to demonstrate an intent to
deprive K-Mart of its property. We disagree and affirm her conviction.
[2] We affirm.
Issue Whether there was sufficient evidence to support Lane’s theft conviction.
Facts [3] On July 7, 2013, Lane entered a K-Mart store to return a “Dora [the Explorer]
[] 4 Wheeler Quad [‘car’].” (Tr. 54). Lane placed the car inside of a shopping
cart beside the car’s packaging box and then approached the service desk. Lane
presented her receipt and requested a refund. However, K-Mart employees told
her that a refund could not be issued because the date on the receipt was past
“the refund policy date.” (Tr. 55). Janetta Sumners (“Sumners”), a loss
prevention associate, noticed that Lane became upset by the refusal of her
refund request and heard Lane say that “she would never shop there again.”
(Tr. 57). Sumners then observed Lane proceeding to the store’s north exit and
1 IND. CODE § 35-43-4-2(a). We note that effective July 1, 2014, a new version of this theft statute was enacted and that Class D felony theft is now a Class A misdemeanor. Because Lane committed her crime in 2013, we will apply the statute in effect at that time.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 2 of 7 watched her turn around before exiting and begin to shop. At that time, the car
and its empty packaging box remained in Lane’s cart.
[4] Sumners informed another loss prevention associate to watch Lane on the
surveillance cameras because Lane’s behavior was unusual. After returning to
the office to view the surveillance video as it recorded, Sumners saw Lane select
items and put “all but a couple of the items” into the car’s empty packaging
box. (Tr. 65). Sumners also saw Lane place a K-Mart bag over the car’s
packaging box. Thereafter, Lane passed through both sets of the doors at the
north exit with her cart of unpurchased merchandise. K-Mart loss prevention
personnel detained Lane and took her to the security office. When Sumners
asked Lane why she had stolen the items in the cart, Lane responded that “she
was upset that she didn’t get a refund.” (Tr. 77). Lane was then asked to
remove the items from the car’s packaging box; the various items recovered
totaled approximately $600 in value.
[5] Soon after, Sumners called the police and reported that they had a shoplifter in
custody. Officer Sean McCurdy (“Officer McCurdy”) of the Indianapolis
Metropolitan Police Department arrived at the store’s security office, and he
asked Lane why she had been stealing. Lane responded that she was upset that
she could not return the car. While Lane was speaking to police, her teenage
son was waiting outside of the office. When he came back into the office, Lane
told her son “this is why you do not do things out of anger.” (Tr. 79).
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 3 of 7 [6] The State charged Lane with Class D felony theft on July 7, 2013. On July 23,
2014, the trial court held a jury trial. During the trial, Sumners and Officer
McCurdy testified to the above mentioned facts. Lane testified and denied
making any self-incriminating statements to Sumners, her son, or Officer
McCurdy. Lane stated that she was a frequent shopper at K-Mart and that she
had gone to the store to return the car and shop for school items. She claimed
that she had been upset about not being able to return the item and had been
planning to leave, but, her son had reminded her about school shopping. She
also testified that she had exited the store with the unpurchased merchandise,
not intending to steal them, but to purchase paper plates that she claimed were
on display outside of the north entrance. Because she was unable to locate an
employee to get permission to go outside of the store to get the paper plates,
Lane stated that she was unwilling to leave the car and her purse in the cart
unattended.
[7] During the trial, both Sumners and Officer McCurdy testified that Lane never
mentioned paper plates to them, and Sumners testified that she had never seen
K-Mart selling plates during a sidewalk sale. Similarly, she also testified that
the only sidewalk sale at that time was a sale for flowers located near the south
entrance. The surveillance footage introduced as an exhibit during the trial also
contradicted Lane’s claim that she looked for a K-mart associate before she
exited the north entrance.
[8] At the conclusion of the trial, the jury found Lane guilty as charged. At Lane’s
sentencing hearing, the trial court entered her theft conviction as a Class A
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 4 of 7 misdemeanor. The trial court sentenced Lane to three hundred sixty-five (365)
days, with three hundred fifty-nine (359) days suspended to probation and a
total credit time of six (6) days. Lane now appeals.
Decision [9] Lane contends that her theft conviction was not supported by sufficient
evidence. Specifically, she argues that there was insufficient evidence to
establish her intent to deprive K-Mart of the value and use of the unpurchased
items.
[10] Our supreme court has held that when the sufficiency of evidence is challenged
we will consider only the evidence most favorable to the judgement without
reweighing that evidence or judging the credibility of the witness. Wright v.
State, 828 N.E.2d 904, 906 (Ind. 2005). We respect the jury’s “exclusive
province to weigh conflicting evidence.” Alkhalidi v. State, 753 N.E.2d 625, 627
(Ind. 2001). Likewise, it is not necessary for the evidence to “‘overcome every
reasonable hypothesis of innocence.’” Drane v. State, 867 N.E.2d 144, 147 (Ind.
2007) (quoting Moore v. State, 652 N.E. 2d 53, 55 (Ind. 1995), reh’g denied). We
will affirm the trial court “‘if the probative evidence and reasonable inferences
drawn from the evidence could have allowed a reasonable trier of fact to find
the defendant guilty beyond a reasonable doubt.’” McHenry v. State, 820 N.E.2d
124, 126 (Ind. 2005) (quoting Tobar v. State, 740 N.E.2d 109, 111-12 (Ind.
2000)).
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 5 of 7 [11] To convict Lane of theft as charged, the State was required to prove beyond a
reasonable doubt that she “knowingly or intentionally exerted unauthorized
control over [K-Mart’s] property . . . with [the] intent to deprive . . . [K-Mart] of
any part of its value or use[.]” I. C. § 35-43-4-2(a). Lane does not dispute that
she “knowingly selected certain items for sale and placed them either in her
shopping basket [or inside] of the empty [car] box.” (Lane Br. 5). Instead, she
argues that there was insufficient evidence to demonstrate her intent to deprive
K-Mart of its items’ value or use. Id.
[12] This Court has held that “‘[i]ntent’ is ‘a mental function, and without a
confession, it must be determined from a consideration of the conduct and the
natural consequences of the conduct giving rise to the charge that the defendant
committed theft.”’ Duren v. State, 720 N.E.2d 1198, 1202 (Ind. Ct. App. 1999)
(quoting Brant v. State, 535 N.E.2d 189, 191 (Ind. Ct. App. 1989), trans. denied),
trans. denied. “[I]ntent may be proven by circumstantial evidence, and it may be
inferred from a defendant’s conduct and the natural and usual consequences to
which such conduct logically and reasonably points.” Long v. State, 935 N.E.2d
194, 197 (Ind. Ct. App. 2010), trans. denied. Accordingly, a theft conviction
may be sustained by circumstantial evidence. See Ward v. State, 439 N.E.2d
156, 159 (Ind. 1982) (holding that an “[u]nexplained possession of [] stolen
property will support an inference of guilt . . . and of theft of that property”).
[13] Here, Lane contends that the evidence that she walked out of the store through
both sets of doors of the north exit with a cart of unpurchased merchandise was
insufficient to show that she intended to deprive K-Mart of the unpurchased
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 6 of 7 merchandise’s use or value. She argues that she walked out of the doors only to
retrieve paper plates from a sidewalk sale. She also contends that she attempted
to locate a K-Mart employee before exiting the store to view the sidewalk sale,
but she was unsuccessful. Additionally, Lane challenges the credibility of
Sumners’ and Officer McCurdy’s testimony, arguing that she did not make any
self-incriminating statements.
[14] We disagree. Sumners’ testimony and the surveillance footage contradicts
Lane’s arguments. Sumners testified that the only sidewalk sale occurring at
that time was the sale of flowers outside of the south entrance, and that she had
never seen paper plates sold during a sidewalk sale. Similarly, the surveillance
video also contradicts Lane’s claims because it shows her walking past the
service area and through the doors without stopping or looking for an
employee. Therefore, Lane’s argument is nothing more than a request for this
Court to reweigh the evidence and the witnesses’ credibility, which we will not
do. Wright, 828 N.E.2d at 906. Accordingly, there was sufficient evidence to
support Lane’s theft conviction.
[15] Affirmed.
Crone, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015 Page 7 of 7