MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                    May 24 2016, 9:21 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. Burns                                        Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tony Edelen,                                            May 24, 2016
Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        49A02-1510-CR-1722
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Clayton Graham,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Duane Merchant,
                                                        Judge Pro-Tempore
                                                        Trial Court Cause No.
                                                        49G07-1503-CM-8223



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016          Page 1 of 5
                                             Case Summary
[1]   Tony Edelen appeals his conviction for Class A misdemeanor theft. We affirm.


                                                     Issue
[2]   The sole issue is whether there is sufficient evidence to sustain Edelen’s

      conviction.


                                                     Facts
[3]   On January 20, 2015, Matthew Cavendish was working as a loss prevention

      officer for a Kroger grocery store in Indianapolis. On that date, he noticed

      Edelen come into the store. Cavendish recognized Edelen from several

      previous encounters with him. Cavendish watched Edelen from a distance and

      saw him take four bottles of whiskey from the shelf and remove security caps

      from the top of the bottles. Edelen then concealed the bottles on his person and

      walked out of the store without paying for them. Cavendish lost sight of Edelen

      after he left the store and before police arrived on the scene. When police

      arrived and found and detained Edelen, he had no stolen merchandise on him.

      However, Cavendish went behind the store, where he had seen Edelen walking

      towards before police arrived, and found four bottles of whiskey with the

      security caps removed.


[4]   The State charged Edelen with Class A misdemeanor theft. After a bench trial,

      Edelen was convicted as charged. Edelen now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016   Page 2 of 5
                                                  Analysis
[5]   Edelen contends there was insufficient evidence to convict him of theft. When

      reviewing a claim of insufficient evidence, we must consider only the probative

      evidence and reasonable inferences supporting a conviction without reweighing

      evidence or assessing witness credibility. Lewis v. State, 34 N.E.3d 240, 245

      (Ind. 2015). The evidence is sufficient if a reasonable trier of fact could have

      found the defendant guilty beyond a reasonable doubt. Id.


[6]   “A person who knowingly or intentionally exerts unauthorized control over

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

      of its value or use, commits theft, a Class A misdemeanor.” Ind. Code § 35-43-

      4-2(a). Additionally:

              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 was displayed or offered to a point beyond
              that at which payment should be made;


              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.


      I.C. § 35-43-4-4(c).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016   Page 3 of 5
[7]   Edelen complains that he was not actually in possession of the four bottles of

      whiskey when he was apprehended by police outside the Kroger. However, the

      theft statute does not require that a defendant be found in possession of the

      stolen property. K.F. v. State, 961 N.E.2d 501, 508 (Ind. Ct. App. 2012), trans.

      denied. He also faults the lack of certain evidence, such as proof that the

      whiskey bottles came from the Kroger, surveillance video, and fingerprint or

      DNA evidence. Police and prosecutors are entitled to allocate investigative

      resources, depending on the severity of the offense, and are not required to

      collect every piece of evidence possible in every single case that comes before

      them. Rather, we note the well-settled rule that a single eyewitness’s testimony

      is sufficient to sustain a conviction. Rutherford v. State, 866 N.E.2d 867, 871

      (Ind. Ct. App. 2007). Here, Cavendish presented unequivocal eyewitness

      testimony that he observed Edelen remove four bottles of whiskey from a shelf,

      pull the security caps off of them, conceal them, and then walk out of the store

      without paying for them. Although the bottles were not on Edelen’s person

      when police apprehended him, they were located in an area behind the store

      where Cavendish had seen Edelen walking after he left the store. This is

      sufficient evidence that Edelen stole the bottles of whiskey, particularly in light

      of Indiana Code Section 35-43-4-4(c). Edelen’s claims that Cavendish’s

      testimony by itself was insufficient is clearly an invitation to reweigh the

      evidence, which we must refuse.


                                                Conclusion
[8]   There is sufficient evidence to sustain Edelen’s conviction for theft. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016   Page 4 of 5
[9]   Affirmed.


      Vaidik, C.J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016   Page 5 of 5
