
ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE
William P. Greenaway                    Steve Carter
Noblesville, Indiana                         Attorney General
                                        Indianapolis, Indiana

                                        Grant H. Carlton
                                        Deputy Attorney General
                                        Indianapolis, Indiana


                                   In The
                            INDIANA SUPREME COURT

GREGORY LEONARD WRIGHT,           )
                                        )
      Defendant-Appellant,              )
                                       )
           v.                           )    29S02-0301-CR-33
                                        )
STATE OF INDIANA,                       )
                                        )
      Plaintiff-Appellee.                    )
            ________________________________________________

                   APPEAL FROM THE HAMILTON SUPERIOR COURT
                   The Honorable William J. Hughes, Judge
                         Cause No. 29D03-9906-DF-128
              ________________________________________________

                           On Petition To Transfer


                              January 24, 2003

DICKSON, Justice
      On April 11, 1999, Gregory Wright entered a Wal-Mart store in Carmel,
Indiana, gathered merchandise from throughout the store and presented those
goods, along with another shopping cart full of items he brought in from
his car (and for which he had no receipt) to the store return desk.  Wal-
Mart loss prevention officers observed his actions and advised the manager
to approve a refund if Wright requested one.  Wright did seek and receive a
full refund of $880.57. As Wright left the store with the refund, loss
prevention officers arrested him.  He was thereafter convicted of theft,
but the Court of Appeals reversed and remanded to the trial court, finding
the evidence insufficient to establish theft but sufficient to support a
conviction for the lesser-included offense of attempted theft.  Wright v.
State, 754 N.E.2d 550, 554 (Ind. Ct. App. 2001).  We grant the State's
petition for transfer and affirm the trial court.
      In his appeal, the defendant challenges the sufficiency of the
evidence, claiming that the prosecution failed to prove that the refund he
obtained was "unauthorized" as required by the definition of theft.  Ind.
Code § 35-43-4-2(a).  The crime of theft is defined as "knowingly or
intentionally exerting 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).  Dispositive to this case is whether
Wright's control over the $880.57 was "unauthorized" within the meaning of
the statute.  Indiana Code § 35-43-4-1(b) defines "unauthorized control,"
in relevant part,[1] as control exerted 1) without the other's consent, or
2) by creating a false impression in the other person.  The defendant
argues, and the Court of Appeals agreed, that the defendant neither took
the refund money without Wal-Mart's consent nor created a false impression.

      As to the first contention, the defendant reasons that when the store
manager authorized the refund at the instruction of loss prevention
personnel, Wal-Mart consented to the defendant's control over the money.
We disagree.  Wal-Mart loss prevention personnel observed Wright's actions
from the time he initially entered the store until he left with the refund
money, and in fact witnessed him take from the store shelves many of the
items he presented for a refund.  Record at 305-10.  By instructing a
manager to approve a refund should the defendant request one, Wal-Mart was
not authorizing the defendant to exert control over the refunded money, but
was rather permitting the scope of the defendant's plans to be tested,
intending all the while to reassert rightful control of the money once the
criminal act was complete.  This is evidenced by the fact that loss
prevention personnel apprehended the defendant once he exited the store in
possession of the money.  Record at 309.
      The defendant next argues that he did not exert unauthorized control
over the refunded money because he did not create a false impression in Wal-
Mart.  He reasons that, although he tried to deceive Wal-Mart, Wal-Mart
knew the truth all along, and was therefore never operating under the false
impression that the defendant was lawfully entitled to the refund.  We
agree.  Wright did not create a false impression in Wal-Mart.
      However, a person may exert unauthorized control over the property of
another either by creating a false impression or by exerting control
without the other's consent.   I. C. § 35-43-4-1(b).  The evidence is
sufficient to show that the defendant knowingly or intentionally exerted
unauthorized control over the property of Wal-Mart by taking the refund
money without Wal-Mart's consent, thus satisfying the statutory
requirements for theft under Indiana Code § 35-43-4-2(a).
                                 Conclusion
      The defendant's conviction is affirmed.

      SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
      [1] Indiana Code § 35-43-4-1 lists additional forms of unauthorized
control, none of which are at issue in this case.

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                                    vote.



