Terry A. Benyon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 20, 2017
• Docket: 49A02-1703-CR-570
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 20 2017, 5:29 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Terry A. Benyon, October 20, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1703-CR-570 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc Rothenberg, Appellee-Plaintiff. Judge Trial Court Cause No. 49G02-1610-F5-42328

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 1 of 14 Case Summary [1] Terry Benyon (“Benyon”) appeals his conviction, following a jury trial, of

count VII, theft, as a Level 6 felony,1 and his sentences for one count of corrupt

business influence, as a Level 5 felony; 2 six counts of theft, as Level 6 felonies;3

one count of attempted theft, as a Level 6 felony;4 and a habitual offender

enhancement.5

[2] We affirm in part, reverse in part, and remand with instructions.

Issues [3] Benyon raises the following two issues on appeal:

I. Whether the State presented sufficient evidence to support his conviction of count VII, theft, as a Level 6 felony.

II. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

1 Ind. Code § 35-43-4-2(a)(1). 2 I.C. § 35-45-6-2. 3 I.C. § 35-43-4-2(a)(1). 4 Id.; I.C. § 35-41-5-1. 5 I.C. § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 2 of 14 Facts and Procedural History [4] Beginning in approximately April of 2016, Benyon began a streak of thefts from

clothing stores around the Indianapolis area. Store surveillance videos captured

Benyon engaged in many of these thefts. Benyon stole merchandise in large

quantities and sold it “on the streets,” in gas stations, in Wal-Marts, in beauty

shops, in barber shops, and in liquor stores. State’s Ex. 23 at 7. Benyon trained

and used teenage accomplices—one as young as twelve years old—to carry out

the thefts with him. He organized a system in which he would sell the

merchandise in bulk and on “pay days” when he could “get rid of [it]” fast. Id.

at 16.

[5] On May 23, 2016, Benyon and a young female accomplice stole approximately

200 pairs of underwear, valued between $9.50 and $16.50 each, from a Gap

store at the Fashion Mall at Keystone, which resulted in a loss of between

$1,900 and $3,300 for that store. On July 3, 2016, Benyon and a female

accomplice stole approximately 200 pairs of underwear from the Victoria’s

Secret store at the Castleton Square Mall, totaling a loss of $2,100 for that store.

[6] On July 12, 2016, Benyon and a thirteen- or fourteen-year-old male accomplice

returned to the Victoria’s Secret store at the Castleton Square Mall and

committed another theft. An assistant store manager noted that something was

“amiss” because she saw that Benyon’s bag was full of store items for which he

had not paid. Tr. Vol. II at 62-63. The store manager followed Benyon and his

accomplice. A store associate tried to stop Benyon, but Benyon ran away with

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 3 of 14 the bag of merchandise. Several Victoria’s Secret employees and an employee

from another store chased Benyon through the mall, but he fled into his truck

and “erratic[ally]” and “very quickly” drove away. Id. at 85, 87. The store

manager estimated that Benyon had stolen approximately 200 pairs of

underwear, valued at $10.50 each, totaling a loss of about $2,000 for the store.

[7] On August 5, 2016, Benyon went to the Victoria’s Secret store at the Circle

Center Mall and committed a theft of approximately twenty “bralettes” worth

$25 to $30 each. Id. at 100-101. Store employees chased Benyon through the

mall, but he got away from them. On August 6, 2016, Benyon returned to the

Gap store at the Fashion Mall and took approximately four drawers’ worth and

two table tops’ worth of underwear from the store and placed them in a bag.

Benyon left the store without paying for the merchandise which store

employees valued at approximately $2,000.

[8] On September 26, 2016, Benyon and a female accomplice went to the Ulta

Beauty store located on Hardegan Street. At that store, Benyon took twenty-

nine fragrances from the men’s fragrance area, which the store manager valued

between $60 to $100 each, totaling a loss of about $2,865 for the store. On

October 2, 2016, Benyon and a female accomplice stole approximately 560

items of clothing from the Victoria’s Secret store at the Fashion Mall, totaling a

loss of $7,000 for the store.

[9] Sometime in October of 2016, the asset protection coordinator for Stein Mart,

Diana Chiscon-Floyd (“Chiscon-Floyd”), became aware that someone was

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 4 of 14 stealing Michael Kors coats from the Stein Mart store located at West 86th

Street. The coats were each valued between $119.99 and $149.99. On October

24, Chiscon-Floyd observed Benyon and a female accomplice enter the store

and start “staging” the Michael Kors coats by moving them closer to the

emergency exit door. Tr. Vol. II at 152. The female accomplice then left the

store with Benyon and entered his truck, and Benyon then returned to the store

by himself. Chiscon-Floyd recognized Benyon and his accomplice, and she

called the police. The police arrived and arrested Benyon. The police searched

Benyon’s truck pursuant to a search warrant, and they found a bag containing

numerous pairs of underwear with tags still on them.

[10] After waiving his Miranda rights, Benyon provided a statement to police in

which he admitted to being “the thief”; admitted to reselling stolen

merchandise; admitted to earning $600 per 200 pairs of stolen underwear;

admitted to using the proceeds to pay for his rent, truck, and insurance;

admitted to training and using teenage assistants to help him with the thefts;

and noted that Victoria’s Secret used “little girls to play security in [the] stores”

while placing “tens of thousands of dollars’ worth of merchandise in front of

[him]” and “dar[ing him] to take it.” State’s Ex. 23 at 6, 18.

[11] The State charged Benyon with multiple counts of theft and one count of

corrupt business influence. At Benyon’s jury trial, the State introduced

testimony of the various stores’ employees who witnessed the thefts, and some

of the stores’ surveillance video tapes showing Benyon stealing merchandise.

One of the admitted surveillance videos was of Benyon at the Victoria’s Secret

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 5 of 14 store on August 5, 2016. That video showed that, during the course of about

eighteen seconds, Benyon cleared off all of the bralettes lying on top of a table

at the front of the store and placed them in a white bag. The merchandising

manager at the store, Taryn Tibbs (“Tibbs”), testified that there was no

merchandise in the drawers beneath the table. She testified that she had made

eye contact with Benyon just as he had finished taking the items from the table,

and she had then seen him leave the store without paying for the items. Tibbs

and another manager had chased Benyon, but he had run down the stairs of the

mall. Tibbs testified that there had been about twenty bralettes worth $25 to

$30 each on the table at the time of the theft.

[12] The jury found Benyon guilty of one count of corrupt business influence, as a

Level 5 felony, six counts of theft, as Level 6 felonies, and one count of

attempted theft, as a Level 6 felony. The jury found Benyon not guilty of two

additional counts of theft, as Level 6 felonies. Benyon subsequently pled guilty

to the habitual offender enhancement.

[13] Benyon had a sentencing hearing on February 17, 2017, at the end of which the

trial court noted that, while Benyon had expressed remorse for the crimes, it

“was apparent” in Benyon’s statement to the police that Benyon “almost took

pride in his [theft] setup.”6 Tr. Vol. III at 7. The court noted that Benyon had

6 For example, Benyon stated to police that he made $600 for 200 pairs of underwear and “that’s more [income] than most people bring home in a week.” State’s Ex. 22 at 10. He further stated to police that he “mock[ed] this country for its freedom … to move about and the fact that you would [l]ay tens of thousands

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 6 of 14 stolen a large amount of inventory to supply his “corrupt business practice,”

and his crimes involved multiple victims. Id. at 8. The trial court also noted

that Benyon’s extensive criminal history, much of which involved similar

crimes, was an aggravator. Specifically, the trial court pointed out that,

including the instant convictions other than the habitual offender enhancement,

Benyon had twenty-one felony convictions. The court also noted that, in the

past, Benyon had been given “multiple opportunities at alternative

sentencings.” Id. Given the aggravating circumstances, the trial court

specifically found that “short term imprisonment” or a sentence split between

imprisonment and alternative placements was warranted. Id. at 9-10.

[14] The trial court sentenced Benyon to consecutive terms of five years’

imprisonment for Level 5 felony corrupt business influence, with an additional

two years for the habitual offender enhancement; two years for each of the six

counts of Level 6 felony theft; and two years for Level 6 felony attempted theft.

This resulted in an aggregate sentence of twenty-one years. The trial court

ordered the sentences for three counts of Level 6 felony theft to be served in

community corrections, the sentences for two other counts of Level 6 felony

theft to be suspended to probation,7 and the sentences for one count of Level 6

of dollars’ worth of merchandise in front of me[,] overprice it[,] … and dare me to take it[,]” while “using basically little girls to play security in your stores. … Why don’t you go and hire security[?]” Id. at 17-18. 7 The sentence for count VII, for which Benyon maintains there was insufficient evidence, was one of the sentences suspended to probation.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 7 of 14 felony theft and attempted Level 6 felony theft to be entirely suspended, with no

probation.

[15] This appeal ensued.

Discussion and Decision Sufficiency of the Evidence [16] Benyon challenges the sufficiency of the evidence to support his conviction on

count VII, theft, as a Level 6 felony, for his theft of bralettes from Victoria’s

Secret on August 5, 2016. Our standard of review of the sufficiency of the

evidence is well-settled:

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

Moreover, “[a] conviction may be based on circumstantial evidence alone so

long as there are reasonable inferences enabling the factfinder to find the

defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 8 of 14 [17] To support Benyon’s conviction of theft, as a Level 6 felony, the State was

required to prove beyond a reasonable doubt that: (1) Benyon; (2) knowingly or

intentionally; (3) exerted unauthorized control over property of another person;

(4) with the intent to deprive the other person of any part of its value or use; (5)

and the value of the property was at least $750 and less than $50,000. I.C. § 35-

43-4-2(a)(1)(A).8 Benyon contends that the State failed to provide sufficient

evidence that the value of the property he stole from Victoria’s Secret on August

5, 2016 was worth at least $750. We agree.

[18] The only evidence of the value of the property stolen on August 5 was Tibbs’

testimony and the surveillance video admitted as State’s Exhibit 6. Tibbs, the

store merchandising manager, testified that the store surveillance video in

Exhibit 6 showed Benyon clearing off bralettes on a table in the front of the

store, putting them in a white bag, and then leaving the store without paying for

them. Tibbs further testified that there were “like twenty” bralettes on the table

on the day that Tibbs stole them, and she said they were worth between $25 to

$30 each. Tibbs stated that there were no bralettes in the drawers under the

table at the time Benyon stole the bralettes. Thus, even if we assume that each

bralette was $30, the evidence established that the total value of the stolen

8 Subsection (a)(1) also provides that the crime of theft is a Level 6 felony if the person charged has a prior unrelated conviction for theft under that section. I.C. § 35-43-4-2(a)(1)(C)(i). The record shows that Benyon had eight unrelated prior convictions for theft under Indiana Code Section 35-43-4-2 during the period of June 1991 through January 2016. Appellant’s Conf. App. at 162-168. However, the challenged count VII does not base the Level 6 felony charge on prior unrelated convictions, but solely on the allegation that the value of the stolen property was at least $750 and less than $50,000. Id. at 26. And the jury verdict on that count found him “guilty of theft, a Level 6 felony, as charged in count VII.” Id. at 151 (emphasis added).

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 9 of 14 property was $600 at most, i.e., less than the $750 minimum necessary to

convict Benyon of a Level 6 felony.

[19] The State acknowledges that it “may have presented insufficient evidence to

support [Benyon’s] conviction for one count of Level 6 felony theft.”

Appellee’s Br. at 13. Nevertheless, it suggests that the jury could have properly

inferred from the surveillance video that Benyon stole more than twenty

bralettes and, therefore, at least $750 worth of property. However, any such

inferences would be “pure speculation and devoid of evidentiary support.”

Lane v. State, 175 Ind. App. 543, 372 N.E.2d 1223, 1226 (1978). The only

evidence of the value of the stolen property establishes that it was less than

$750. Therefore, the State has failed to prove an essential element of Level 6

felony theft, and we reverse Benyon’s conviction on count VII.

[20] However, Benyon’s challenge to the sufficiency of the evidence is directed only

to the element of the value of the stolen property. Benyon does not challenge

the evidence that he stole merchandise from Victoria’s Secret on August 5;

rather, he merely points out that the evidence showed that the value of that

merchandise was less than $750. Appellant’s Br. at 9-10. Thus, the evidence

was sufficient to support a conviction for the lesser included offense of theft of

property valued at less than $750, a Class A misdemeanor. I.C. § 35-43-4-2(a).

[21] “On appeal, this Court may order a modification of the judgment of conviction

to that of a lesser included offense because of an insufficiency of evidence on a

particular element of the crime.” Baird v. State, 955 N.E.2d 845, 849 (Ind. Ct.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 10 of 14 App. 2011) (internal quotations and citations omitted). Therefore, we reverse

Benyon’s conviction on count VII for theft, as a Level 6 felony, because the

evidence was insufficient to sustain that conviction. However, we remand this

case with instructions that the trial court enter a judgment on count VII of theft,

as a Class A misdemeanor, sentence Benyon accordingly, and continue to treat

the sentence for count VII as suspended to probation.

Inappropriateness of Sentence [22] Benyon maintains that his sentence is inappropriate in light of the nature of the

offense and his character. Article 7, Sections 4 and 6 of the Indiana

Constitution “authorize[] independent appellate review and revision of a

sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

Ct. App. 2007) (alteration original). This appellate authority is implemented

through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

7(B) requires the appellant to demonstrate that his sentence is inappropriate in

light of the nature of his offenses and his character. See Ind. Appellate Rule

7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

the trial court’s recognition or non-recognition of aggravators and mitigators as

an initial guide to determining whether the sentence imposed was

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

However, “a defendant must persuade the appellate court that his or her

sentence has met th[e] inappropriateness standard of review.” Roush, 875

N.E.2d at 812 (alteration original). He must demonstrate that his sentence is

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 11 of 14 inappropriate in light of both the nature of the offense and his character.

Baumholser v. State, 62 N.E.3d 411, 418 (Ind. Ct. App. 2016), trans. denied.

[23] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

(Ind. 2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

end of the day turns on “our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other facts that

come to light in a given case.” Id. at 1224. The question is not whether another

sentence is more appropriate, but rather whether the sentence imposed is

inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

Deference to the trial court “prevail[s] unless overcome by compelling evidence

portraying in a positive light the nature of the offense (such as accompanied by

restraint, regard, and lack of brutality) and the defendant’s character (such as

substantial virtuous traits or persistent examples of good character).” Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[24] The trial court specifically found that the nature of Benyon’s offenses were such

that they warranted imprisonment for at least part of his sentence. We agree.

As the trial court noted, Benyon stole a very large amount of merchandise from

multiple victims, and he did so in order to run his own “business” with stolen

inventory. Benyon created and maintained an organized theft operation in

which he trained and used teenagers—and one minor as young as twelve years

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 12 of 14 old—to help him steal. His sentence was not inappropriate in light of the

nature of his offenses.

[25] Benyon also asserts that his sentence was inappropriate in light of his good

character. Specifically, he points out that he has “acknowledged he has a

problem stealing” and “would like to address that problem” through

community corrections rather than incarceration. Appellant’s Br. at 12.

Although the trial court noted that Benyon had expressed remorse, and that he

had agreed to make restitution “if he can,” it also noted that it was apparent

from Benyon’s statement to police that he “almost took pride in his [theft]

setup.” Tr. Vol. III at 7, 9. In fact, in his statement to police, Benyon seemed

to blame the stores’ lack of security for his crimes. That is hardly evidence of

remorse. Moreover, Benyon has an extensive criminal history, with thirteen

felony convictions, not including the eight felony convictions in the instant

case. Eight of his past convictions were also for theft. And, although Benyon

has received alternative sentences to prison in the past, he has violated

probation multiple times and he has continued to commit crime after crime.

None of this reflects well on his character. See, e.g., Garcia v. State, 47 N.E.3d

1249, 1251 (Ind. Ct. App. 2015), trans. denied.

[26] Benyon’s sentence is not inappropriate in light of the nature of his offenses and

his character.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 13 of 14 Conclusion [27] We reverse Benyon’s conviction on count VII for theft, as a Level 6 felony,

because the evidence was insufficient to sustain that conviction. We remand

this case with instructions that the trial court instead enter a judgment on count

VII of theft, as a Class A misdemeanor, sentence Benyon accordingly, and

continue to treat the sentence for count VII as suspended to probation. We

affirm the trial court’s sentence of Benyon in all other respects, as it is not

inappropriate in light of the nature of the offenses or his character.

[28] Affirmed in part, reversed in part, and remanded with instructions.

Baker, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017 Page 14 of 14