Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                   Sep 12 2014, 10:26 am
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:

JOHN P. WILSON                                 GREGORY F. ZOELLER
Wilson & Wilson                                Attorney General of Indiana
Greenwood, Indiana
                                               JOSEPH Y. HO
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

VERONICA E. PERRY,                             )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )    No. 41A01-1312-CR-546
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE JOHNSON CIRCUIT COURT
                         The Honorable Mark K. Loyd, Judge
                            Cause No. 41C01-1207-FD-427


                                   September 12, 2014

            MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge
                                Case Summary and Issues

      Following a bench trial, Veronica Perry was convicted of theft, a Class D felony,

and sentenced to nine hundred ten days in the Indiana Department of Correction. Perry

appeals her conviction and sentence, raising two issues for our review: 1) whether there

was sufficient evidence to support her conviction, and 2) whether her sentence is

inappropriate in light of the nature of her offense and her character. Concluding there

was sufficient evidence and her sentence is not inappropriate, we affirm.

                              Facts and Procedural History

      When Perry and a friend entered the Bath and Body Works store at Greenwood

Park Mall, Kelly Rice, a sales manager at the store, kept an eye on them because they

were suspected of taking items from the store on past visits. Rice and another store

employee saw Perry put several items in her purse and Perry’s friend put items in a

shopping bag from another store. They left the store without approaching the cash

registers or paying for the items. Rice called mall security and followed behind the

women as they went to other stores until a mall security officer caught up with them.

Perry had new, sealed perfume, lotion, and body mist from the store in her purse, but she

had no receipt for the items. After the security officer advised the women of their

Miranda rights, both admitted to taking items without paying for them.

      The State charged Perry with theft, a Class D felony. A bench trial was held over

two days, at the conclusion of which the trial court found Perry guilty. At sentencing,

after hearing from Perry and reviewing the pre-sentence investigation report, the trial

court made the following statement:

                                            2
      That is the criminal history you come to the court with a decade of criminal
      conduct, six prior convictions, two prior felony theft convictions, two arrest
      for deception issues while you were out on bond on this matter. By your
      own testimony you reflect that even though you were under this Court’s
      supervision you failed to refrain from the consumption of illegal substances
      . . . . I absolutely agree with the [State], I think he nails it on the head, until
      or unless somebody does something you are just continue [sic] your
      behavior, that is what the history is. . . . [W]hat you can’t do is undo history
      and the historical context that you come before me on indicates he is spot
      on. So you are one of those uniquice [sic] individuals who’s [sic] character
      and nature through your continuing course of conduct indicates that this is
      most likely to reoccur unless drastic steps are taken and I think those drastic
      steps certainly indicate that you are an individual that needs to be
      incarcerated.

Transcript at 45-46. The trial court ordered Perry to serve a two and one-half year

sentence at the Department of Correction. Perry now appeals.

                                  Discussion and Decision

                                 I. Sufficiency of Evidence

      Our standard of reviewing a sufficiency of the evidence claim is well-settled: we

do not reweigh the evidence or assess the credibility of the witnesses. Ball v. State, 945

N.E.2d 252, 255 (Ind. Ct. App. 2011), trans. denied. We consider only the probative

evidence and reasonable inferences supporting the judgment. Boggs v. State, 928 N.E.2d

855, 864 (Ind. Ct. App. 2010), trans. denied. It is not necessary that the evidence

overcome every reasonable hypothesis of innocence; the evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict. Id. We will affirm the

conviction unless no reasonable finder of fact could find the elements of a crime proven

beyond a reasonable doubt. Id.




                                              3
        To convict Perry of theft as charged, the State must have proved that she

knowingly or intentionally exerted unauthorized control over property of another person

with the intent to deprive that person of its value or use. Ind. Code § 35-43-4-2(a)

(2012). For purposes of the theft statute: “[A] person’s control over property of another

person is ‘unauthorized’ if it is exerted . . . without the other person’s consent . . . .” Ind.

Code § 35-43-4-1(b)(1). Perry points out conflicting testimony amongst witnesses and

argues the conflicts must be interpreted in her favor. For instance, she notes that Rice

said she followed the women for approximately five minutes until security arrived,

whereas Perry’s friend and the mall security officer both testified it took approximately

twenty minutes, and argues that a reasonable inference from this conflicting testimony is

that Rice followed the wrong women and misidentified Perry as one of the perpetrators.1

        Perry’s argument is essentially an invitation for us to reweigh the evidence in her

favor, which is a role reserved exclusively for the trial court as the finder of fact in this

case. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). Both Rice and a second Bath and

Body Works employee identified Perry as one of the women who entered their store and

took items without paying for them. Rice testified she had not given Perry permission to

take any items from the store. Perry was found in possession of unopened items from the

store but produced no receipt to show she had purchased them. The mall security officer

who stopped Perry and her friend and assisted Bath and Body Works in recovering its

property testified that both women admitted to taking items from the store. This is


        1
             Perry also asserts the second Bath and Body Works employee may have misidentified her because a
photograph of her was presented in an unduly suggestive way. However, no objection was made to the employee’s
identification of Perry at the time.

                                                     4
sufficient evidence from which the trier of fact could reasonably find the elements of

theft had been proven beyond a reasonable doubt.

                                          II. Inappropriate Sentence

         Perry also contends her sentence of two and one-half years for a Class D felony

theft conviction is inappropriate in light of the nature of her offense and her character.2

Although a trial court may have acted within its lawful discretion in imposing a sentence,

the Indiana Constitution authorizes independent appellate review and revision of

sentences through the Appellate Rules, which provides that a court “may revise a

sentence authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Ind. Appellate Rule 7(B); Reid v. State, 876 N.E.2d 1114,

1116 (Ind. 2007). The defendant has the burden of persuading us that her sentence is

inappropriate. Reid, 876 N.E.2d at 1116.

         In considering the nature of the offense, the advisory sentence is the starting point

the legislature has selected as appropriate for the crime committed. Fuller v. State, 9

N.E.3d 653, 657 (Ind. 2014). The character of the offender portion of sentence review

involves consideration of aggravating and mitigating circumstances and other general

considerations. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009). We are not

         2
           Perry states her issue as whether the trial court “abused its discretion when it sentenced [her] by failing to
give appropriate consideration to the nature of the offense and the character of the Appellant.” Brief of Appellant-
Defendant at 1. As our supreme court has made clear, inappropriate sentence and abuse of discretion in sentencing
claims are to be analyzed separately. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). The nature of the offense
and the character of the offender are considerations on independent appellate review of a sentence. We again clarify
that an inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in
sentencing the defendant. Because Perry’s actual argument focuses on the nature of her offense and her character,
we likewise limit our review to whether her sentence was inappropriate.

                                                           5
limited to the aggravating and mitigating circumstances found by the trial court in

analyzing a Rule 7(B) claim. Fuller, 9 N.E.3d at 657.

       Perry was sentenced to two and one-half years for her Class D felony conviction.

“A person who commits a Class D felony shall be imprisoned for a fixed term of between

six (6) months and three (3) years, with the advisory sentence being one and one-half (1

1/2) years.” Ind. Code § 35-50-2-7(a) (2012). Thus her sentence was above the advisory

but short of the maximum sentence she could be ordered to serve. The nature of her

offense is not remarkable and would not alone warrant a sentence above the advisory.

However, as the trial court noted, her character warrants an enhanced sentence. Criminal

history is an important relevant factor in evaluating the character of an offender.

Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). At the time of sentencing,

Perry was thirty-three years old. She has been arrested repeatedly since she was eighteen,

and she has six previous convictions including two felony convictions for theft. She had

three pending cases when she was arrested for this offense, and she was arrested twice

more for theft after being charged with this offense.       She has received suspended

sentences for most of her convictions and has been placed on probation, yet that leniency

has been met with further criminal activity. She is the mother of three, but has shown no

inclination to set a good example for her children. And she failed to take responsibility

for her actions, responding to her counsel’s question at the sentencing hearing about why

this was happening by stating, “[S]ome of them or [sic] just like being in the wrong place

at the wrong time and then the other ones is [sic] trying to provide for my family . . . .”

Tr. at 38. Perry’s conduct demonstrates a complete disregard for both the law and others.

                                            6
       Finally, we note that Perry’s argument that the substantial revisions to the criminal

code effective July 1, 2014, should be considered in evaluating her sentence is not well-

taken. The legislature has specifically stated that the revision of the criminal code does

not affect penalties for crimes committed before the effective date. Ind. Code § 1-1-5.5-

22(a) (stating the revision does not affect “(1) penalties incurred; (2) crimes committed;

or (3) proceedings begun; before the effective date . . . . Those penalties, crimes, and

proceedings continue and shall be imposed and enforced under prior law . . . .”). The

legislature has further stated that it does not intend the doctrine of amelioration to apply.

Ind. Code § 1-1-5.5-22(b). We will not compare the level of offense charged or the

severity of the sentence Perry received with what might have been the result had she

committed her crime two years later than she did.

       Perry has failed to convince us that, in light of the nature of her offense but

especially in light of her character, the sentence imposed by the trial court is

inappropriate.

                                        Conclusion

       Sufficient evidence supports Perry’s conviction of theft, and her sentence of two

and one-half years is not inappropriate. We therefore affirm her conviction and sentence.

       Affirmed.

BAKER, J., and KIRSCH, J., concur.




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