Tony Edelen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 24, 2016
• Docket: 49A02-1510-CR-1722
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 24 2016, 9:21 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court 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

Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tony Edelen, May 24, 2016 Appellant-Defendant, Court of Appeals Cause No. 49A02-1510-CR-1722 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton Graham, Appellee-Plaintiff. Judge The Honorable Duane Merchant, Judge Pro-Tempore Trial Court Cause No. 49G07-1503-CM-8223

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 1 of 5 Case Summary [1] Tony Edelen appeals his conviction for Class A misdemeanor theft. We affirm.

Issue [2] The sole issue is whether there is sufficient evidence to sustain Edelen’s

conviction.

Facts [3] On January 20, 2015, Matthew Cavendish was working as a loss prevention

officer for a Kroger grocery store in Indianapolis. On that date, he noticed

Edelen come into the store. Cavendish recognized Edelen from several

previous encounters with him. Cavendish watched Edelen from a distance and

saw him take four bottles of whiskey from the shelf and remove security caps

from the top of the bottles. Edelen then concealed the bottles on his person and

walked out of the store without paying for them. Cavendish lost sight of Edelen

after he left the store and before police arrived on the scene. When police

arrived and found and detained Edelen, he had no stolen merchandise on him.

However, Cavendish went behind the store, where he had seen Edelen walking

towards before police arrived, and found four bottles of whiskey with the

security caps removed.

[4] The State charged Edelen with Class A misdemeanor theft. After a bench trial,

Edelen was convicted as charged. Edelen now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 2 of 5 Analysis [5] Edelen contends there was insufficient evidence to convict him of theft. When

reviewing a claim of insufficient evidence, we must consider only the probative

evidence and reasonable inferences supporting a conviction without reweighing

evidence or assessing witness credibility. Lewis v. State, 34 N.E.3d 240, 245

(Ind. 2015). The evidence is sufficient if a reasonable trier of fact could have

found the defendant guilty beyond a reasonable doubt. Id.

[6] “A person who knowingly or intentionally exerts unauthorized control over

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

of its value or use, commits theft, a Class A misdemeanor.” Ind. Code § 35-43-

4-2(a). Additionally:

Evidence that a person:

(1) concealed property displayed or offered for sale or hire; and

(2) 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 owner of the property of a part of its value and that the person exerted unauthorized control over the property.

I.C. § 35-43-4-4(c).

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 3 of 5 [7] Edelen complains that he was not actually in possession of the four bottles of

whiskey when he was apprehended by police outside the Kroger. However, the

theft statute does not require that a defendant be found in possession of the

stolen property. K.F. v. State, 961 N.E.2d 501, 508 (Ind. Ct. App. 2012), trans.

denied. He also faults the lack of certain evidence, such as proof that the

whiskey bottles came from the Kroger, surveillance video, and fingerprint or

DNA evidence. Police and prosecutors are entitled to allocate investigative

resources, depending on the severity of the offense, and are not required to

collect every piece of evidence possible in every single case that comes before

them. Rather, we note the well-settled rule that a single eyewitness’s testimony

is sufficient to sustain a conviction. Rutherford v. State, 866 N.E.2d 867, 871

(Ind. Ct. App. 2007). Here, Cavendish presented unequivocal eyewitness

testimony that he observed Edelen remove four bottles of whiskey from a shelf,

pull the security caps off of them, conceal them, and then walk out of the store

without paying for them. Although the bottles were not on Edelen’s person

when police apprehended him, they were located in an area behind the store

where Cavendish had seen Edelen walking after he left the store. This is

sufficient evidence that Edelen stole the bottles of whiskey, particularly in light

of Indiana Code Section 35-43-4-4(c). Edelen’s claims that Cavendish’s

testimony by itself was insufficient is clearly an invitation to reweigh the

evidence, which we must refuse.

Conclusion [8] There is sufficient evidence to sustain Edelen’s conviction for theft. We affirm.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 4 of 5 [9] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 5 of 5