Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                  Jan 30 2013, 8:52 am
court except for the purpose of
establishing the defense of res judicata,                         CLERK
                                                                of the supreme court,
collateral estoppel, or the law of the case.                    court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JULIANNE L. FOX                                 GREGORY F. ZOELLER
Evansville, Indiana                             Attorney General of Indiana

                                                JONATHAN R. SICHTERMANN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID ARNDELL,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 82A04-1206-CR-333
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


               APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Robert J. Pigman, Judge
                          Cause No. 82D02-1203-FB-244



                                     January 30, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          The defendant, David Arndell, concedes that he possessed stolen property

immediately after that property was removed from a smoke shop. He challenges the

sufficiency of the evidence regarding his conviction for Theft,1 a class D felony, and also

his twenty-month sentence.      Because we find the evidence sufficient and Arndell’s

sentence appropriate, we affirm the judgment of the trial court.

                                          FACTS

          On February 29, 2012, Amit Arora, the owner and operator of Sam’s Smoke Shop

in Evansville, awoke to what he originally thought were weather-related noises. Arora’s

residence was located on the floor above his store. After unbolting the door to his

residence, Arora telephoned the police department. He looked through an upper window

and saw an individual clad in an orange hooded sweatshirt fleeing from the store carrying

a box. It was later determined that this box would normally hold thirty cartons of

cigarettes, worth approximately $2,000.

          After the police arrived at the shop, a canine unit was dispatched. The canine

followed the scent trail and a string of discarded cigarette cartons to the front porch of a

residence where Arndell and Michael Mullin were removing cartons of cigarettes from a

box that was labeled, “Sam’s Smoke Shop.” Tr. p. 71.           Other residents noticed an

orange sweatshirt, identified it as Arndell’s, and observed that he had been wearing it

earlier that evening.

1
    Ind. Code § 35-43-4-2.
                                             2
       Arndell was charged under Count I with burglary, a Class B felony, and theft, a

class D felony, under Count II. Following a jury trial on May 11, 2012, Arndell was

found not guilty of burglary but guilty of theft. Thereafter, Arndell was sentenced to

twenty months of incarceration.

       Arndell now appeals, challenging the sufficiency of the evidence and the

appropriateness of his sentence.

                             DISCUSSION AND DECISION

                                I. Sufficiency of Evidence

       To convict a defendant of theft, the State must prove beyond a reasonable doubt

that the defendant knowingly or intentionally exercised unauthorized control over the

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

its use. I.C. § 35-43-4-2.

       We note that the facts in this case are strikingly similar to those of Brink v. State,

837 N.E.2d 192 (Ind. Ct. App. 2005), where we determined that the evidence was

sufficient to support the defendant’s conviction for theft. In Brink, the evidence at trial

demonstrated that a witness described what the thief was wearing on the night of the

theft, police officers found a trail leading from the crime scene to a location where the

defendant was later found, and other evidence confirming that the defendant’s clothes

matched the description provided by the witness to the thief. Id. at 194.

       Here, Arndell is apparently arguing that because he was acquitted of the burglary,

he could not be convicted of the theft. Notwithstanding this claim, our Supreme Court

                                             3
has determined that we will not review verdicts for consistency.              Beattie v. State, 924

N.E.2d 643, 644 (Ind. 2010). That said, the precise question presented here is whether

the evidence was sufficient to convict Arndell of the crime charged. Our review of the

record establishes that Arndell exercised unauthorized control over the property of

another. Thus, the evidence was sufficient.

                                           II. Sentence

       Arndell challenges the appropriateness of the twenty-month sentence that was

imposed following his conviction for theft. We have the authority to independently

review the appropriateness of a sentence that is authorized by statute2 under Indiana

Appellate Rule 7(B). King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). We may

revise a sentence if, after due consideration of the trial court’s decision, we find that the

sentence is inappropriate in light of the nature of the offense and the character of the

offender. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007).

       In support of his claim, Arndell suggests that the trial court erred when

considering the nature of circumstances of the offense, in that the offense was committed

late at night “from a physical structure that was part of the victim’s residence.” Tr. p.

183. Indeed, Arndell was found not guilty of the burglary charge, so the trial court could

not aggravate Arndell’s sentence on the basis that the offense was committed from the




2
 Indiana Code section 35-50-2-7 provides that the sentencing range for a class D felony is between six
months and three years, with an advisory sentence of one-and-one-half years.
                                                  4
victim’s residence.3 Moreover, a material element of a crime may not be used as an

aggravating factor. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007).

       Arndell also argues that the lack of felony convictions should have resulted in a

lesser sentence. However, Arndell does not challenge the trial court’s finding that he has

four prior misdemeanor convictions.             And Indiana Code section 35-38-1-7.1(b)(6)

provides for mitigation when “[t]he person has no history of delinquency or criminal

activity. . . .” (Emphasis added). That said, when considering Arndell’s character, his

prior criminal convictions—although misdemeanors—support the imposition of the

twenty-month sentence because they indicate that he has no regard for the law, and

continues to reoffend. As a result, Arndell has failed to show that his sentence is

inappropriate.

       The judgment of the trial court is affirmed.

RILEY, J., concurs.

BARNES, J., concurs in result.




3
 Indiana Code section 35-43-2-1 provides that “a person who breaks and enters the building or structure
of another person, with intent to commit a felony in it, commits burglary, a Class C felony.”
                                                  5
