MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Feb 29 2016, 10:18 am
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
Barbara J. Simmons                                       Gregory F. Zoeller
Oldenburg, Indiana                                       Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Esmeralda Villarreal,                                    February 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1507-CR-923
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven J. Rubick,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G07-1501-CM-2132



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016   Page 1 of 7
                                             Case Summary
[1]   While her husband and another man loaded a pickup truck with scrap radiators

      from a factory’s dumpster without the factory owner’s permission, Esmeralda

      Villarreal sat in the truck cab facing the parking lot entrance. A factory

      employee drove into the parking lot, saw the theft in progress, and blocked the

      entrance with his vehicle. Police officers arrested Villarreal and the others at

      the scene.


[2]   The State alleged that Villarreal attempted to commit class A misdemeanor

      theft by loading metal into the truck. At trial, Villarreal moved for involuntary

      dismissal based on the lack of evidence that she had personally loaded metal

      into the truck. The State argued that she had acted as a lookout for her

      husband and the other man and therefore was guilty as an accomplice. The

      trial court agreed.


[3]   On appeal, Villarreal argues that her conviction should be reversed because the

      State failed to prove that she loaded metal into the truck. The State argues that

      the evidence is sufficient to sustain her conviction as an accomplice. We agree

      with the State and therefore affirm.


                                 Facts and Procedural History
[4]   On the morning of January 16, 2015, C & R Racing employee Robert

      Worthington returned to his company’s factory in Indianapolis after making a

      delivery. He saw a pickup truck parked next to a dumpster, with the truck cab

      facing the parking lot entrance. Worthington saw one man lifting scrap

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016   Page 2 of 7
      radiators out of the dumpster and another man loading them into the truck. 1

      He also saw Villarreal sitting in the truck’s passenger seat. Worthington

      blocked the parking lot entrance with his vehicle “so they couldn’t leave” and

      went inside the factory to alert the owner. Tr. at 10. The owner went outside

      to confront Villarreal and the two men, one of whom was her husband. Police

      officers arrived within approximately five minutes and arrested Villarreal and

      her companions.


[5]   The State alleged that Villarreal committed class A misdemeanor attempted

      theft by loading metal into the truck. At Villarreal’s bench trial, Worthington

      and the arresting officer testified for the State. Worthington testified to the

      foregoing facts, and the officer testified that Villarreal was sitting in the pickup

      cab when she arrived at the factory. After the State rested, Villarreal moved for

      involuntary dismissal under Indiana Trial Rule 41(B) based on the lack of

      evidence that she had personally loaded metal into the truck. The State argued

      that Villarreal “was actually there acting as a lookout” and that “[s]he doesn’t

      have to actually be loading metal physically into the truck to get an accomplice

      to the attempted theft[.]” Id. at 21. The trial court denied the motion for

      dismissal.




      1
        Worthington’s testimony suggests that C & R Racing sells scrap radiators. See Tr. at 10 (“Q: … [D]o you
      know what the average cost of something like that is when it’s stolen? A: Uh, it just depends on what size
      radiator they took from all that, ’cause they vary from prices.”).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016          Page 3 of 7
[6]   Villarreal then testified on her own behalf, stating that her truck had broken

      down and she asked her husband to call one of his friends for a ride to work.

      The pickup truck driver gave them a ride and told them that he “needed to go

      somewhere first.” Id. at 22. According to Villarreal, the driver stopped at C &

      R Racing and started loading radiators into the truck, and she “told [her]

      husband [they] needed to get out[t]a here.” Id. Villarreal stated that she and

      her husband started walking away but were confronted by a man with a gun,

      who hit her and pushed them toward the truck.


[7]   After Villarreal rested, the State argued that Villarreal “was sitting there as a

      lookout and when things got rough, she fabricated this story.” Id. at 26. The

      trial court stated that it was “convinced that Ms. Villarreal was tacitly involved

      in this. She may at a later time to abandon the attempt [sic] but on the evidence

      is sufficient to sustain a conviction for attempt[ed] theft.” Id. at 30. The court

      found her guilty and sentenced her to time served. This appeal ensued.


                                     Discussion and Decision
[8]   Villarreal asserts that the evidence is insufficient to support her conviction.

      “When reviewing the sufficiency of evidence, we do not reweigh evidence or

      judge witness credibility; rather, we consider only the evidence and reasonable

      inferences most favorable to the judgment.” Hudson v. State, 20 N.E.3d 900,

      903 (Ind. Ct. App. 2014). “This review respects the factfinder’s exclusive

      province to weigh conflicting evidence.” Id. (citation and quotation marks

      omitted). “We must affirm if a reasonable trier of fact could find the defendant


      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016   Page 4 of 7
       guilty beyond a reasonable doubt based upon the probative evidence and

       reasonable inferences drawn from the evidence presented.” Id.


[9]    Class A misdemeanor theft is the knowing or intentional exertion of

       unauthorized control over property of another person, with intent to deprive the

       other person of any part of its value or use. Ind. Code § 35-43-4-2(a). “A

       person attempts to commit a crime when, acting with the culpability required

       for commission of the crime, the person engages in conduct that constitutes a

       substantial step toward commission of the crime. An attempt to commit a

       crime is a felony or misdemeanor of the same level or class as the crime

       attempted.” Ind. Code § 35-41-5-1(a).


[10]   In the charging information, the State alleged that Villarreal

               did attempt to commit the crime of Theft, which is to knowingly
               or intentionally exert unauthorized control over the property of C
               & R Racing, to-wit: metal, with the intent to deprive C & R
               Racing of any part of the use or value of the property, by
               engaging in conduct which constitutes a substantial step toward
               the commission of said crime of Theft, that is: loading the metal
               into a truck[.]


       Appellant’s App. at 12. Villarreal argues that “[t]he State’s witnesses both

       testified that they never saw her outside of the pickup truck until she was

       arrested” and that “[h]er conduct of sitting in the pickup truck fails to meet the

       type of action necessary to find that she committed a substantial step in this

       instance.” Appellant’s Br. at 9-10.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016   Page 5 of 7
[11]   The State argues that the evidence is sufficient to sustain Villarreal’s conviction

       as an accomplice. Indiana Code Section 35-41-2-4 provides, “A person who

       knowingly or intentionally aids, induces, or causes another person to commit

       an offense commits that offense, even if the other person: (1) has not been

       prosecuted for the offense; (2) has not been convicted of the offense; or (3) has

       been acquitted of the offense.” “It is well established that a person who aids

       another in committing a crime is just as guilty as the actual perpetrator.” Green

       v. State, 937 N.E.2d 923, 927 (Ind. Ct. App. 2010), trans. denied (2011).


[12]   “To be convicted as an accomplice, it is not necessary for a defendant to have

       participated in every element of the crime.” Id. Nevertheless, mere

       acquiescence in the commission of the offense and mere presence at the crime

       scene are insufficient to establish accomplice liability. Peterson v. State, 699

       N.E.2d 701, 706 (Ind. Ct. App. 1998). “[P]resence may be considered along

       with the defendant’s relation to the one engaged in the crime and the

       defendant’s actions before, during, and after the commission of the crime.”

       Green, 937 N.E.2d at 927; see also Peterson, 699 N.E.2d at 706 (“The particular

       facts and circumstances of each case must be considered in determining

       whether a person participated in the commission of an offense as an

       accomplice.”). “[T]o sustain a conviction as an accomplice, there must be

       evidence of the defendant’s affirmative conduct, either in the form of acts or

       words, from which an inference of a common design or purpose to effect the

       commission of a crime may be reasonably drawn.” Peterson, 669 N.E.2d at 706.

       “[O]ne may be charged as a principal yet convicted on proof that he or she


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016   Page 6 of 7
       aided another in the commission of a crime.” Wise v. State, 719 N.E.2d 1192,

       1198 (Ind. 1999).


[13]   The State’s evidence established that while her husband and another man

       loaded radiators into the pickup truck, Villarreal was sitting in the truck cab

       facing the parking lot entrance that Worthington fortuitously blocked with his

       vehicle. She was still inside the cab when the police arrived approximately five

       minutes later. The State argues that because Villarreal’s husband was involved,

       “it is a reasonable inference that [she] would be a lookout to prevent him from

       being caught.” Appellee’s Br. at 10. We agree. Moreover, Villarreal’s conduct

       supports an inference of a common design or purpose to effect the commission

       of theft by her husband. The trial court credited the State’s version of events

       over Villarreal’s version, and we may not second-guess that credibility

       determination or reweigh the evidence on appeal. We conclude that a

       reasonable trier of fact could find Villarreal guilty as an accomplice beyond a

       reasonable doubt based on the probative evidence and the reasonable inferences

       drawn therefrom. Accordingly, we affirm her conviction.


[14]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016   Page 7 of 7
