                                                                                 FILED
                                                                             Feb 11 2019, 9:12 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Zachary J. Stock                                           Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana
                                                                 Henry A. Flores
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Crystal G. Smith,                                          February 11, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-1635
              v.                                                 Appeal from the Hendricks
                                                                 Superior Court
      State of Indiana,                                          The Honorable Stephenie LeMay-
      Appellee-Plaintiff.                                        Luken, Judge.
                                                                 Trial Court Cause No.
                                                                 32D05-1708-F6-778



      Tavitas, Judge.


                                              Case Summary
[1]   Crystal Gayle Smith appeals her conviction, following a jury trial, for theft, a

      Level 6 felony. We affirm.

      Court of Appeals of Indiana |Opinion 18A-CR-1635 | February 11, 2019                           Page 1 of 7
                                                       Issue
[2]   Smith raises one issue on appeal, which we restate as whether sufficient

      evidence exists to support her conviction.


                                                      Facts
[3]   Champion Chevrolet (“Champion”) is an auto dealership in Avon, Indiana.

      Champion’s premises are monitored by video surveillance. When Champion’s

      customers buy new tires, Champion disposes of the customers’ old tires. As a

      matter of “company policy,” Champion does not give away or resell the old

      tires because:


              people typically replace their tires when their old tires are unsafe
              and shouldn’t be used anymore, so, . . . [Champion] can’t give
              them away to people. Otherwise, [Champion would] be liable if .
              . . [people] took that unsafe tire and had a blowout on the
              highway or whatever. [The used tires are] just not safe for people
              to be driving on.


      Tr. Vol. II p. 59; see id. at 64-65 (“. . .[I]t’s company policy that we don’t give

      people permission to take those tires . . . it would put [Champion] at

      tremendous liability if someone were to take that tire and put it on their vehicle

      or sell it to someone who would then put it on a vehicle[.]”).


[4]   Champion routinely stores used tires in a fenced “dumpster area and . . . scrap

      area” that is “typically locked.” Id. at 58. The enclosure bears a warning sign

      “that says . . . . [y]ou’re being watched[.]” Id. The used tires remain within the

      enclosure until they are retrieved by a contractor that Champion pays to

      Court of Appeals of Indiana |Opinion 18A-CR-1635 | February 11, 2019         Page 2 of 7
      retrieve, dispose of, and/or recycle them. Champion undertakes this disposal

      procedure as a prophylactic measure to prevent legal exposure. Champion does

      not sell the used tires or collect a recycling reimbursement for the used tires.


[5]   On August 1, 2017, the enclosure was inadvertently left unlocked. At

      approximately 9:50 p.m., Smith and an accomplice entered Champion’s

      premises, entered the enclosure, removed several used tires, loaded them into a

      vehicle, and drove away. A Champion employee, who was monitoring the

      surveillance system, observed Smith and her accomplice and called the police.


[6]   Officer Ryan Grismore of the Avon Police Department was traveling

      westbound on US 36 in the general vicinity of Champion when he heard a

      dispatch related to Champion’s stolen tires; the dispatch included a description

      of the suspect vehicle. Officer Grismore subsequently observed an eastbound

      vehicle that matched the description of the suspect vehicle. Officer Grismore

      followed the vehicle, “ensured [he] had the correct vehicle,” and initiated a

      traffic stop. Id. at 71.


[7]   Smith and her accomplice were in the vehicle. Aided by backup officers,

      Officer Grismore escorted Smith and her accomplice to Champion’s premises,

      where they returned the used tires. The police advised Smith and her

      accomplice that criminal summonses were forthcoming.


[8]   On or about August 4, 2017, the State charged Smith with theft, a Class A

      misdemeanor. Smith had a prior, unrelated conviction for theft. The trial court

      conducted a jury trial on May 14, 2018. Champion’s general sales manager,

      Court of Appeals of Indiana |Opinion 18A-CR-1635 | February 11, 2019        Page 3 of 7
       Mike Mills, testified to the foregoing facts. After the State presented its case-in

       chief, Smith moved for a directed verdict on the basis that the State had failed

       to prove a material element – “that there was any value or use of the [tires].”

       Id. at 80. The State countered that Mills had testified “about the liability

       concerns” and that “it’s that future possibility of the liability which is the value

       in this case.” Id. at 81. The trial court denied Smith’s motion for directed

       verdict.


[9]    At the close of the evidence, the jury returned a guilty verdict for theft, a Class

       A misdemeanor. Smith subsequently admitted that she had a prior unrelated

       theft conviction that elevated the charge; and the trial court entered an order of

       conviction for theft, a Level 6 felony. The trial court imposed no jail time and

       assessed a fine and costs. Smith now appeals.


                                                     Analysis
[10]   Smith challenges the sufficiency of the evidence to support her conviction.

       When there is a challenge to the sufficiency of the evidence, “[w]e neither

       reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

       210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985)). Instead,

       “we ‘consider only that evidence most favorable to the judgment together with

       all reasonable inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d

       at 84). “We will affirm the judgment if it is supported by ‘substantial evidence

       of probative value even if there is some conflict in that evidence.’” Id. (quoting

       Bieghler, 481 N.E.2d at 84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind.


       Court of Appeals of Indiana |Opinion 18A-CR-1635 | February 11, 2019        Page 4 of 7
       2018) (holding that, even though there was conflicting evidence, it was “beside

       the point” because that argument “misapprehend[s] our limited role as a

       reviewing court”). Further, “[w]e will affirm the conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007)).


[11]   To convict Smith of theft, a Class A misdemeanor, the State had to prove that

       Smith “knowingly or intentionally exert[ed] 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. Smith does not dispute that she exerted

       unauthorized control over Champion’s property. Rather, Smith contends that

       the tires were not “property” within the meaning of the statute because the State

       failed to establish that the tires were of any value to Champion.


[12]   Although Smith cites Long v. Dilling Mech. Contrs., Inc., 705 N.E.2d 1022 (Ind.

       Ct. App. 1999), trans. denied, in her brief, her reliance on Long is misplaced.

       Smith, inexplicably, asserts both that: (1) “Long . . . shows that abandoned

       property has no value to the one who abandons it and therefore cannot be the

       subject of a theft”; and (2) Smith “is not arguing that [Champion’s] tires were

       abandoned.” Appellant’s Br. p. 5.


[13]   Long is inapposite here and does not aid our review. In Long, Long – who was a

       union organizer – took trash bags from the Dilling company’s dumpster,

       “hoping [the bags] would contain records revealing the names and phone


       Court of Appeals of Indiana |Opinion 18A-CR-1635 | February 11, 2019       Page 5 of 7
       numbers of Dilling employees, with whom Long wished to discuss collective

       bargaining.” Long, 705 N.E.2d at 1023. Dilling filed a complaint for damages

       alleging that Long and his affiliated trade unions (collectively, “Long”) had

       committed theft, among other offenses. Because Dilling had placed the trash

       bags into a dumpster in an area that was open to public access, a panel of this

       court deemed the trash bags to be abandoned property in which Dilling no

       longer had a property right. Long, 705 N.E.2d at 1026. Accordingly, we

       concluded that the trial court had erred in denying Long’s “[m]otion to dismiss

       and/or [m]otion for summary judgment[.]” Id. at 1027. Here, Champion’s

       tires were stored in an enclosure that was typically locked, monitored by a

       video surveillance system, and overseen by Champion’s staff. Champion’s tires

       were not abandoned property, which Smith concedes.


[14]   The crux of Smith’s argument is her claim that, by stockpiling its used tires for

       disposal, Champion demonstrated that it regarded the used tires as trash and as

       having no value to Champion. We disagree. Mike Mills testified that

       Champion stored the used tires in an enclosure that was typically locked,

       labeled with a warning sign, monitored by video surveillance, and overseen by

       Champion’s personnel. Mills testified further that Champion had a company

       policy that was specifically aimed at preventing unauthorized reuse of the used

       tires, because reuse of “unsafe [tires that] shouldn’t be used anymore” puts

       Champion at risk of “tremendous liability[.]” Tr. Vol. II pp. 59, 64. The threat

       of unauthorized sale of used tires is a liability to Champion. The fact that these

       used tires could be sold by an unauthorized seller, and that they were taken


       Court of Appeals of Indiana |Opinion 18A-CR-1635 | February 11, 2019      Page 6 of 7
       without permission, points to the logical inference that the tires retain some

       value after they are removed from vehicles.


[15]   In light of Mills’ testimony and reasonable inferences that can be drawn

       therefrom, we cannot say that “no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt.” Love, 73 N.E.3d at

       696. We regard Smith’s argument that the used tires were “not property

       capable of being stolen” as an invitation that we should reweigh the evidence,

       which we cannot do. See Gibson, 51 N.E.3d at 210. The State presented

       sufficient evidence that the used tires were items of value to Champion. The

       State also presented sufficient evidence from which a reasonable factfinder

       could find that Smith knowingly or intentionally, and with the intent to deprive

       Champion of their value or use, exerted unauthorized control over used tires

       that Champion – as a prophylactic measure – stored on its premises until the

       used tires could be disposed of properly.


                                                  Conclusion
[16]   The State presented sufficient evidence for the jury to convict Smith of theft, a

       Class A misdemeanor, which conviction was elevated to a Level 6 felony

       because Smith had a prior, unrelated conviction for theft. We affirm.


[17]   Affirmed.


[18]   Baker, J., and May, J., concur.




       Court of Appeals of Indiana |Opinion 18A-CR-1635 | February 11, 2019       Page 7 of 7
