MEMORANDUM DECISION                                                   FILED
                                                                 Aug 11 2016, 9:56 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 CLERK
                                                                  Indiana Supreme Court
regarded as precedent or cited before any                            Court of Appeals
                                                                       and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Anthony S. Churchward                                    R. David Boyer
Anthony S. Churchward, P.C.                              Boyer & Boyer
Fort Wayne, Indiana                                      Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antonio Trujillo,                                        August 11, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         02A03-1601-SC-45
        v.                                               Appeal from the Allen Superior
                                                         Court
Bernard J. Vodde,                                        The Honorable Brian D. Cook,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         02D09-1508-SC-12882



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1601-SC-45 | August 11, 2016      Page 1 of 6
                                             Case Summary
[1]   Antonio Trujillo appeals a judgment against him for $5,000.00 in favor of

      Bernard Vodde. We reverse.


                                                     Issue
[2]   The sole issue before us is whether there is sufficient evidence to support the

      judgment.


                                                     Facts
[3]   On August 1, 2015, Vodde was on the front porch of his home in Fort Wayne

      when three boys approached him and began talking to him. Vodde recognized

      only one of the boys, sixteen-year-old K.T., who is Trujillo’s son. Vodde and

      his wife offered the boys a drink and talked to them about various items in

      Vodde’s garage. During the conversation, one or two of the boys left the garage

      and then came back. Vodde never saw any of the boys enter his house. After

      the boys left, Vodde went inside his house and noticed a number of items

      missing, including a wallet, a handgun, some food and beverages, and a large

      amount of jewelry. Later, one of the boys, whom Vodde did not identify,

      returned Vodde’s wallet to him, missing the credit cards and cash it had

      contained.


[4]   Police detained K.T. and questioned him regarding the missing property from

      Vodde’s home. K.T. denied ever entering Vodde’s home or taking any property

      from him, and he refused to identify the two boys who were with him.

      Eventually, K.T. was alleged to have committed disorderly conduct, based on
      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-SC-45 | August 11, 2016   Page 2 of 6
      his conduct while being detained by the police, and he was found to be

      delinquent for committing that offense.


[5]   On August 17, 2015, Vodde filed an action in small claims court against

      Trujillo, alleging K.T. was involved in the theft of items from his home and

      seeking to hold Trujillo liable for K.T.’s conduct. The small claims court

      conducted a bench trial on November 12, 2015. Afterwards, the court entered

      judgment in favor of Vodde for $5,000.00. Trujillo now appeals and has

      obtained a certified statement of the evidence pursuant to Indiana Appellate

      Rule 31 because no transcript of the trial was available.


                                                  Analysis
[6]   Trujillo contends there is insufficient evidence that his son K.T. was in any way

      involved with the theft of items from Vodde’s home. “Judgments in small

      claims actions are ‘subject to review as prescribed by relevant Indiana rules and

      statutes.’” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006)

      (quoting Ind. Small Claims Rule 11(A)). Pursuant to Indiana Trial Rule 52(A),

      we apply the clearly erroneous standard of review to facts determined in a

      bench trial with due regard given to the opportunity of the trial court to assess

      witness credibility. Id. “This ‘deferential standard of review is particularly

      important in small claims actions, where trials are “informal, with the sole

      objective of dispensing speedy justice between the parties according to the rules

      of substantive law.”’” Id. at 1067-68 (quoting City of Dunkirk Water & Sewage

      Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind. 1995) (in turn quoting S.C.R. 8(A)).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-SC-45 | August 11, 2016   Page 3 of 6
[7]   “A person who has suffered a pecuniary loss as a result of a criminal conversion

      may bring a civil action to recover the loss, and in such a civil action must

      prove by a preponderance of the evidence that the defendant committed the

      criminal act.” Schrenker v. State, 919 N.E.2d 1188, 1193 (Ind. Ct. App. 2010),

      trans. denied. However, while mens rea must be proven in a criminal case, it

      need not be in a civil case. Id. at 1194.


              Conversion, as a tort, is the appropriation of the personal
              property of another to the party’s own use and benefit, or in its
              destruction, or in exercising dominion over it, in exclusion and
              defiance of the rights of the owner or lawful possessor, or in
              withholding it from his possession, under a claim and title
              inconsistent with the owner’s.


      Id.


[8]   A tort claim cannot be proven solely by inferential speculation. Colen v. Pride

      Vending Serv., 654 N.E.2d 1159, 1163 (Ind. Ct. App. 1995), trans. denied.

      “Testimony based on conjecture or speculation is insufficient to support a

      claim.” Id. Evidence fails as a matter of law to support a claim if an intended

      inference rests on no more than speculation or conjecture and the intended

      interference cannot reasonably and logically be drawn from the evidence. Id.


[9]   Here, Vodde admitted during his testimony that he never saw any of the three

      boys he was talking to on August 1, 2015, enter his home. He did state that one

      of the three boys later returned his wallet to him, emptied of cash and credit

      cards, but he did not identify which boy it was or whether it was K.T. There is


      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-SC-45 | August 11, 2016   Page 4 of 6
       no evidence K.T. ever confessed to being involved with the theft of Vodde’s

       property or that anyone else ever implicated K.T. in the theft.


[10]   Vodde suggests that K.T. was arrested for theft and that he “accepted a plea

       related to his disorderly conduct.” Appellee’s Br. p. 7. The record before us, as

       reflected in the certified statement of the evidence, does not indicate that K.T.

       ever was arrested for theft, as opposed to merely being suspected of and

       questioned about it by police; there likewise is no evidence that K.T. pled guilty

       to disorderly conduct in order to avoid prosecution for theft. Additionally,

       Vodde argues that “no other person” could possibly bear responsibility for the

       theft and that if Trujillo wants to avoid the judgment, K.T. should name the

       other two boys he was with at Vodde’s house. Id. at 8. Vodde cites no

       authority for the proposition that a civil judgment can or should be used as

       leverage to force a criminal suspect to talk to authorities, regardless of whether

       there is evidence to support such a judgment.


[11]   It is possible to speculate that K.T. was involved in the theft of items from

       Vodde’s home. But speculation and conjecture alone are not enough to support

       a judgment. The most the evidence demonstrates is that K.T. was present

       outside Vodde’s home near in time to the theft of the items, while in the

       company of two unidentified boys, and that a boy later returned Vodde’s empty

       wallet to him but Vodde did not identify who that boy was. As a matter of law,

       this fails to prove by a preponderance of the evidence that K.T. was involved in

       the theft of Vodde’s property.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-SC-45 | August 11, 2016   Page 5 of 6
                                                 Conclusion
[12]   The small claims court’s judgment that Trujillo is liable to Vodde for his son

       K.T.’s purported theft of Vodde’s property is clearly erroneous. We reverse the

       judgment in Vodde’s favor.


[13]   Reversed.


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




       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-SC-45 | August 11, 2016   Page 6 of 6
