MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    Aug 10 2017, 9:08 am
court except for the purpose of establishing
                                                                  CLERK
the defense of res judicata, collateral                       Indiana Supreme Court
                                                                 Court of Appeals
estoppel, or the law of the case.                                  and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Lorie Bohannon                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lorie Bohannon,                                          August 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1609-CR-2152
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable William J. Nelson
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49G18-1502-F6-4352



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2152 | August 10, 2017   Page 1 of 8
                                          Statement of the Case
[1]   Lorie Bohannon appeals her conviction for theft, as a Level 6 felony, following

      a bench trial. Bohannon raises seven issues for our review, but we consider

      only the following three issues:

               1.       Whether the trial court erred when it considered video
                        evidence.


               2.       Whether the State presented sufficient evidence to support
                        Bohannon’s conviction.


               3.       Whether Bohannon has demonstrated that she received
                        ineffective assistance from her trial counsel.


[2]   We affirm.1


                                   Facts and Procedural History2
[3]   On February 5, 2015, Bohannon went to the Beech Grove Walmart and

      proceeded with a number of items to the self-scan checkout station. There,

      Bohannon placed a stack of steaks, valued at $140, which she had placed inside

      one plastic bag, on the scanner such that only the bottom steak was scanned.

      Bohannon then placed the steaks back in her shopping cart and proceeded to



      1
        Bohannon also asserts that she was falsely imprisoned by a Walmart employee, but that argument was not
      developed below and has no relevance to this appeal from her conviction and sentence. Accordingly, we
      dismiss Bohannon’s apparent attempt to raise for the first time in this criminal appeal her putative civil claim.
      2
        Bohannon’s appendix does not comply with Indiana Appellate Rule 50(B)(1), and the Statement of Facts
      in her appellate brief is not in accordance with our standard of review, which is contrary to Appellate Rule
      46(A)(6)(b).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2152 | August 10, 2017               Page 2 of 8
      exit the building. At the exit, Kristopher Britton and another Walmart

      employee, who both had observed Bohannon’s actions, stopped her, and police,

      who had already arrived, arrested Bohannon.


[4]   The State charged Bohannon with theft, as a Level 6 felony. 3 At her ensuing

      bench trial, Britton testified as to his observations of Bohannon on February 5.

      During his testimony, the State had surveillance video, which consisted of three

      different angles showing Bohannon inside the Walmart, admitted into evidence.

      Bohannon’s counsel informed the court that he had “no objection” to the

      admission of the video. Tr. Vol. 2 at 9. However, Bohannon’s counsel stated

      that he was “concerned” and wanted “the entire video to be presented” rather

      than “portions of the video.” Id. at 11. The total video time was about ninety

      minutes. The trial court, however, noted that there was “a lot of silent time”

      with portions that were not “really relevant.” Id. at 13. Accordingly, the State

      asked “to play [the video] at a times 4 speed.” Id. at 16. The court responded:

      “let’s try it . . . and if you [Bohannon] object . . . or if I don’t understand what’s

      going on, then we’ll back it back down to normal speed.” Id. Bohannon did

      not object.


[5]   Following Britton’s testimony and description of the video evidence, Bohannon

      testified in her own defense. She stated that, while it looked like she was

      attempting to leave the Walmart with unpaid goods, she was actually “waitin[g]




      3
          Bohannon’s theft offense was elevated to a Level 6 felony based on prior, unrelated convictions.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2152 | August 10, 2017                 Page 3 of 8
      on my brother to come so that I could pay” for those items. Id. at 62.

      Bohannon’s brother also testified and confirmed that Bohannon had texted him

      and mentioned the unpurchased meat.


[6]   The court found Bohannon guilty as charged. According to the court:


              [Bohannon] . . . clearly pushed the cart past the . . . EAS
              [security] towers into the area towards the exit . . . . [S]he clearly
              did not pay for the meat . . . [or] 15 [other] unpaid items . . . .
              [T]he behavior of Ms. Bohannon [in the video] was very strange,
              I mean, it really was. [B]ut on top of it all, her admission to her
              brother that hey, I didn’t pay for this meat, . . . and then[,] in the
              Court’s opinion, after th[at] evidence, [she] attempted to leave
              the store by passing all points of payment, which is the threshold
              that the Court can use in this case to determine whether or not
              she intended to deprive Walmart of the use of value of the items.
              And . . . I think it’s enough, so I’m finding her guilty of theft.


      Id. at 85-86. The court entered its judgment of conviction and sentenced

      Bohannon accordingly. This appeal ensued.


                                     Discussion and Decision
                                   Issue One: Admission of Evidence

[7]   We first consider Bohannon’s argument on appeal that the trial court erred

      when it “allow[ed] the video evidence to be admitted without being completely

      viewed, not being complete footage of the defendant in the store, and played at

      a faster[-]than[-]real[-]time speed . . . .” Appellant’s Br. at 11. We generally

      review the trial court’s decision to admit evidence for an abuse of discretion.

      E.g., McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004). But Bohannon did not

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2152 | August 10, 2017   Page 4 of 8
      object to the State’s request to admit the video evidence. Bohannon also did

      not object when the trial court proposed to watch the video at an accelerated

      speed. As such, Bohannon has not preserved this issue for appellate review,

      and we will not consider it.4 E.g., Lockhart v. State, 609 N.E.2d 1093, 1098 (Ind.

      1993).


                                    Issue Two: Sufficiency of the Evidence

[8]   We next consider Bohannon’s argument that the State failed to present

      sufficient evidence to support her conviction.5 Our standard of review is clear:

      in reviewing such claims, we will consider only the evidence most favorable to

      the verdict and the reasonable inferences to be drawn therefrom. Leonard v.

      State, 73 N.E.3d 155, 160 (Ind. 2017). We will affirm the conviction if there is

      probative evidence from which a reasonable jury could have found the

      defendant guilty beyond a reasonable doubt. Id. We will neither reweigh the

      evidence nor reassess the credibility of witnesses. Id.


[9]   To show that Bohannon committed theft, as a Level 6 felony, the State was

      required to prove beyond a reasonable doubt that Bohannon knowingly or

      intentionally exerted unauthorized control over the property of another person,




      4
        Relatedly, Bohannon argues that the trial court committed judicial misconduct in the manner in which it
      viewed the video and that the prosecutor committed misconduct in presenting the video at an accelerated
      rate. But Bohannon did not object to the alleged misconduct below and therefore has not preserved our
      review of those claims. In any event, her arguments on appeal are not supported by cogent reasoning. App.
      R. 46(A)(8)(a). Further, Bohannon does not argue on appeal that any of her challenges to the video evidence
      demonstrates fundamental error. See id.
      5
          We agree with the State that Bohannon’s apparent Issue 5 is superfluous to this issue.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2152 | August 10, 2017          Page 5 of 8
       with the intent to deprive the other person of any part of its value or use, and

       that she had a prior unrelated conviction for theft or criminal conversion. Ind.

       Code § 35-43-4-2(a)(1)(C) (2014). On appeal, Bohannon asserts only that the

       State failed to prove that she intended to deprive Walmart of the value or use of

       the steaks.


[10]   We cannot agree. The evidence shows that Bohannon passed a stack of steaks

       over a self-scan checkout such that only the bottom steak was scanned.

       Bohannon then placed all the steaks in her shopping cart and went past security

       checkmarks to the store’s exit. The trial court was free to conclude that that

       evidence demonstrated Bohannon’s intent to deprive Walmart of the value or

       use of the steaks. Bohannon’s argument to the contrary on appeal simply asks

       us to reweigh the evidence to give her self-serving testimony controlling weight,

       which we will not do. The State presented sufficient evidence to support

       Bohannon’s conviction.


                             Issue Three: Effective Assistance of Counsel

[11]   Bohannon next asserts that her trial counsel rendered ineffective assistance.


               When evaluating an ineffective assistance of counsel claim, we
               apply the two-part test articulated in Strickland v. Washington, 466
               U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
               State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
               prong, “the defendant must show deficient performance:
               representation that fell below an objective standard of
               reasonableness, committing errors so serious that the defendant
               did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
               McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing

       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2152 | August 10, 2017   Page 6 of 8
               Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
               second prong, “the defendant must show prejudice: a reasonable
               probability (i.e. a probability sufficient to undermine confidence
               in the outcome) that, but for counsel’s errors, the result of the
               proceeding would have been different.” Id. (citing Strickland, 466
               U.S. at 694, 104 S. Ct. 2052).


       Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017).


[12]   According to Bohannon, her trial counsel rendered ineffective assistance

       because he did not present evidence to show that Bohannon was allergic to

       shellfish, which (according to Bohannon) would have made it unlikely that she

       would have stolen a bag of shrimp. Bohannon further asserts that her counsel

       rendered ineffective assistance because he did not introduce documents that

       would have shown that “all but 4 of the items alleged . . . were indeed paid for.”

       Appellant’s Br. at 10.


[13]   Bohannon has not demonstrated ineffective assistance of counsel. Even if we

       were to accept Bohannon’s argument on appeal, the fact remains that the State

       showed that Bohannon attempted to leave Walmart with numerous, unpaid-for

       steaks. That was enough to support Bohannon’s conviction, and her challenge

       to her counsel’s assistance does not affect that evidence. In other words,

       Bohannon has presented no cogent argument to show that any error in her

       counsel’s conduct resulted in prejudice to her. Thus, we reject Bohannon’s

       argument.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2152 | August 10, 2017   Page 7 of 8
                                                   Conclusion

[14]   In sum, we affirm Bohannon’s conviction for theft, as a Level 6 felony.


[15]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2152 | August 10, 2017   Page 8 of 8
