MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 11 2018, 9:09 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas B. O’Farrell                                      Curtis T. Hill, Jr.
McClure / O’Farrell                                      Attorney General of Indiana
Indianapolis, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mickey Diaz,                                             October 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1165
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable David K. Najjar,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         29D05-1706-CM-4285



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1165 | October 11, 2018                  Page 1 of 6
[1]   Mickey Diaz appeals her conviction for Class A Misdemeanor Conversion, 1

      arguing that the evidence is insufficient to support the conviction. Finding the

      evidence sufficient, we affirm.


                                                     Facts
[2]   On June 16, 2017, Gloria Jackson and her son went to Home Depot in

      Noblesville. After they had finished shopping, Jackson’s son took their cart to

      the cart return without realizing that Jackson’s purse was still in the cart.


[3]   Diaz, her husband, and their two children had also been shopping at Home

      Depot. When Diaz returned their cart to the cart return, she found the purse in

      another cart, looked around, did not see anyone, and took the purse with her

      when she and her family left the store.


[4]   Jackson and her son quickly realized that they had left Jackson’s purse; they

      returned to Home Depot to retrieve it. Jackson went inside the store to see if

      anyone had turned in her purse, but no one had. Jackson’s iPhone was in her

      purse; therefore, Jackson’s son used the Find My iPhone application to locate

      and track the phone and the purse. They called the police, who began

      searching for the phone and the purse using the tracking information provided

      by Jackson’s son.




      1
          Ind. Code § 35-43-4-3(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1165 | October 11, 2018   Page 2 of 6
[5]   Initially, the iPhone was at a McDonald’s in Cicero, but it then began traveling

      northbound on State Road 19 north of Cicero. Eventually, the officers began

      following Diaz’s vehicle. They followed the vehicle into a subdivision and

      conducted a traffic stop.


[6]   Hamilton County Sheriff’s Deputy Jeff Wright approached Diaz, who was

      sitting in the passenger seat, and asked for her identification. When Diaz

      picked up her purse to retrieve her identification, Deputy Wright noticed a

      second purse matching the description of Jackson’s purse sitting partially under

      Diaz’s seat. Deputy Wright asked Diaz if the purse was hers, and Diaz

      responded that it belonged to a friend and that she was taking the purse to her

      friend at a middle school. The deputy asked Diaz if he looked inside that purse

      whether he would find identification belonging to her friend.


[7]   At that point, Diaz stated that she found the purse in a shopping cart at Home

      Depot and planned to turn it in to the owner when she had time. Diaz claimed

      that she was running late in getting her two children to school. She stated that

      her husband was abusive, that she was scared of him, and that she was scared

      to tell him at Home Depot that she had picked up the purse because they were

      already running late to take the children to school. Another deputy asked Diaz

      why, if they were in such a hurry, they had stopped at McDonald’s, driven into

      a subdivision, and failed to take the most direct route to the school. Diaz

      responded that they had stopped at McDonald’s because she was thirsty.

      Jackson responded to the traffic stop, identified the purse as hers, and verified

      that nothing had been taken from the purse.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1165 | October 11, 2018   Page 3 of 6
[8]    On June 22, 2017, the State charged Diaz with Class A misdemeanor

       conversion. At the conclusion of Diaz’s April 19, 2018, bench trial, the trial

       court found her guilty as charged, imposing a sentence of court costs totaling

       $185. Diaz now appeals.


                                       Discussion and Decision
[9]    Diaz argues that the evidence is insufficient to support her conviction. When

       reviewing the sufficiency of the evidence to support a conviction, we must

       consider only the probative evidence and reasonable inferences supporting the

       conviction and will neither assess witness credibility nor reweigh the evidence.

       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless no

       reasonable factfinder could find the elements of the crime proved beyond a

       reasonable doubt. Id.


[10]   To convict Diaz of Class A misdemeanor conversion, the State was required to

       prove beyond a reasonable doubt that she knowingly or intentionally exerted

       unauthorized control over Jackson’s property. I.C. § 35-43-4-3(a).2 Diaz

       argues, essentially, that the evidence does not support a conclusion that she

       acted with the requisite intent to commit the crime.




       2
         Diaz complains that the language of the conversion statute renders it a strict liability crime. We disagree, as
       it requires knowing and intentional conduct, but even if we disagreed, it is for the General Assembly rather
       than for the judiciary to consider whether statutory language should be amended.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1165 | October 11, 2018                     Page 4 of 6
[11]   Diaz emphasizes the evidence in the record that her husband has been abusive

       to her in the past and that her fear of him is what kept her from returning the

       purse to the store immediately. She claims that she always intended to return

       the purse to the store but was just unable to do so immediately. 3


[12]   These arguments, however, amount to a request that we reweigh the evidence,

       which we may not do. It is undisputed that Diaz took the purse, knowing that

       it did not belong to her and that she did not have permission to do so. Diaz

       claims that the reason she did not immediately return the purse was because she

       was afraid of her husband’s reaction given that they were allegedly running late

       to take their children to school. But after they left the store, they went to

       McDonald’s because Diaz was thirsty and then drove to a subdivision, rather

       than driving immediately to school from Home Depot. Moreover, when asked

       by a deputy about Jackson’s purse, Diaz lied, claiming that it belonged to a

       friend to whom she was taking it. These inconsistencies and shifting

       explanations support the trial court’s conclusion that Diaz knowingly and

       intentionally exerted unauthorized control over Jackson’s property.4




       3
         Diaz directs our attention to a statute providing that “[a] person who receives, retains, or disposes of
       personal property that has been the subject of theft with the purpose of restoring it to the owner, does not commit
       a crime under this chapter.” Ind. Code § 35-43-4-5(d) (emphasis added). This defense does not apply to this
       case because Jackson’s property had not been the subject of theft when Diaz took it. Moreover, as noted
       above, a reasonable factfinder could conclude from the evidence that Diaz did not intend to restore the
       property to Jackson.
       4
        Diaz directs our attention to certain comments made by the trial court at the close of the bench trial. It is
       well established, however, that “the focus of our inquiry is not upon the remarks the trial court makes in a
       bench trial after having reached the conclusion that a defendant is guilty. Rather the question is whether the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1165 | October 11, 2018                       Page 5 of 6
[13]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       evidence presented to the trial court as fact-finder was sufficient to sustain the conviction.” Dozier v. State,
       709 N.E.2d 27, 30 (Ind. Ct. App. 1999).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1165 | October 11, 2018                        Page 6 of 6
