Pursuant to Ind. Appellate Rule 65(D),
this 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:

SUZY ST. JOHN                                    GREGORY F. ZOELLER
Marion County Public Defender                    Attorney General of Indiana
Indianapolis, Indiana
                                                 GEORGE P. SHERMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Apr 19 2012, 9:15 am
                               IN THE
                    COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




BERRY MOSS,                                      )
                                                 )
       Appellant- Defendant,                     )
                                                 )
              vs.                                )      No. 49A04-1107-CR-360
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee- Plaintiff,                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Shatrese Flowers, Commissioner
                            Cause No. 49F19-1102-CM-9551




                                       April 19, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                 Case Summary and Issue

       Following a bench trial, Berry Moss appeals his conviction of criminal conversion,

a Class A misdemeanor. Moss presents one issue on appeal: whether sufficient evidence

was presented to sustain his conviction for conversion. Concluding the evidence is

sufficient, we affirm.

                               Facts and Procedural History

       On February 11, 2011, Moss entered a Marsh Supermarket in Indianapolis and

began picking out various items without the assistance of a shopping cart. Moss began

by picking out a potato, which he placed inside the sleeve of his jacket. Moss then

proceeded to the deli section and picked out a package of steaks, which he placed inside

the waistband of his jacket. Lastly, Moss made his way to the health and beauty aids

section of the store and picked out a toothbrush and put it in his front pants pocket.

       During the course of Moss’s shopping, loss prevention officers Evan Strater and

Andrew Mattern were observing Moss via the store’s live-feed on closed-circuit

television. Both Strater and Mattern watched Moss proceed past all points of checkout

without paying for the items he had selected and enter the vestibule near the main

entrance where shopping carts and seasonal merchandise are kept. Upon entering the

vestibule, Moss was apprehended by Strater and Mattern who identified themselves as

loss prevention officers. Strater and Mattern found Moss to be in possession of the

merchandise he had picked out but had not yet paid for.

       Moss was charged with criminal conversion, a Class A misdemeanor, and was

found guilty following a bench trial on June 30, 2011. He was sentenced to 365 days in


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jail with 363 days suspended and 180 days on probation.          Moss now appeals his

conviction of criminal conversion.

                                Discussion and Decision

                                 I. Standard of Review

      In challenging the sufficiency of the evidence to support a conviction, “we neither

reweigh the evidence nor judge witness credibility.” Caruthers v. State, 926 N.E.2d

1016, 1022 (Ind. 2010) (quoting Jones v. State, 783 N.E.2d 1132 (Ind. 2003)). We affirm

the judgment if there is “substantial evidence of probative value supporting each element

of the crime from which a reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt.” Id. at 1022.

                               II. Evidence of Conversion

      The statute defining criminal conversion states: “A person who knowingly or

intentionally exerts unauthorized control over property of another person commits

criminal conversion, a Class A misdemeanor.” Ind. Code §35-43-4-3(a).

      Moss contends there was insufficient evidence to prove beyond a reasonable doubt

that he intentionally or knowingly exercised unauthorized control over the items because

mere possession of the items on his person is insufficient absent the intent to prevent

discovery or the inability to pay for the items. Indiana Code section 35-43-4-4, for

purposes of determining evidence of unauthorized control of property, states:

      (c) 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 is displayed or offered to a point beyond that
             at which payment should be made;


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      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.

Ind. Code §35-43-4-4(c).

      The Indiana legislature was very clear in enacting this statute as to what

constitutes unauthorized control of property.   In interpreting the requisite mens rea

necessary for a charge of criminal conversion, “intentionally” and “knowingly” are

defined as follows:

      (a) A person engages in conduct “intentionally” if, when he engages in the
      conduct, it is his conscious objective to do so.
      (b) A person engages in conduct “knowingly” if, when he engages in the
      conduct, he is aware of a high probability that he is doing so.

Ind. Code §35-41-2-2.

      Moss argues that simply hiding un-purchased items on his person is inadequate to

be knowing or intentional exertion of unauthorized control. We agree with Moss’s

argument that mere concealment of the un-purchased items alone is insufficient to show

unauthorized control as defined by statute. However, Moss passed all points of checkout

without paying for the concealed items. Moss’s concealment of the un-purchased items

in combination with his removal of the items to the vestibule, a “point beyond that at

which payment should be made,” Ind. Code §35-43-4-4(c)(2), establishes that he was

either aware he was exercising unauthorized control over the property or it was his

conscious objective to do so.

      It was reasonable for the trial court to determine, considering the surrounding

circumstances, that there was no other explanation for Moss’s concealment of the

property except to “exert unauthorized control.” Even assuming that Moss was passing

                                          4
all points of checkout in order to retrieve a shopping cart for the items and to return to the

store, it is unreasonable to assume that a reasonable person would conceal the items in his

clothing if he had the intention of paying for them later. Moss further argues that as more

and more Hoosiers “go green” each year, many people bring their own reusable shopping

bags to the store and it would be unreasonable to say that items placed in these bags

brought from home would be an exercise of unauthorized control. Appellant’s Br. at 7.

Although it is becoming a common trend for stores to allow shoppers to use their own

shopping bags, placing items in one’s shirt sleeve, jacket waistband, and pants pocket is

not one and the same with this common practice of “going green.”

       Moss also refers us to the case of Morris v. State, 921 N.E.2d 40 (Ind. Ct. App.

2010), trans. denied, in support of his argument that absent the inability to pay for the

items, simply concealing the items without first paying for them does not establish that he

intended to prevent discovery. The defendant in Morris had stuffed store merchandise

into a black plastic trash bag, but then dropped the bag and walked toward the store exit

when he realized he was being watched by store security. He was charged with theft and

the trial court denied his request for a jury instruction describing conversion as a lesser-

included offense. Although Morris did say that moving un-purchased items within the

confines of a store with no intent or ability to purchase them constitutes unauthorized

control over property, id. at 43, it did so in the context of trying to “illustrate[ ] the

elusive difference between the crimes of theft and conversion” rather than as a statement

on what is required to prove conversion. The evidence before us does not establish

whether Moss did in fact have the ability to pay for the concealed items, but even if he

did, it is irrelevant. Moss’s concealment of the items in a manner not authorized by
                                              5
Marsh, along with his actions in passing all points of checkout without attempting to pay

for the items, is sufficient evidence of his unauthorized control over the property.

                                        Conclusion

       The State presented sufficient evidence that Moss committed the crime of

conversion. His conviction is therefore affirmed.

       Affirmed.

NAJAM, J., and VAIDIK, J., concur.




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