MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                              Nov 30 2016, 6:00 am

court except for the purpose of establishing                       CLERK
                                                               Indiana Supreme Court
the defense of res judicata, collateral                           Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                           Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P.                     Attorney General of Indiana
Huntington, Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Matthew C. Elzey, Jr.,                                  November 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        35A02-1604-CR-783
        v.                                              Appeal from the Huntington
                                                        Superior Court
State of Indiana,                                       The Honorable Jeffrey R.
Appellee-Plaintiff.                                     Heffelfinger, Judge
                                                        Trial Court Cause No.
                                                        35D01-1509-F6-212



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1604-CR-783 | November 30, 2016   Page 1 of 12
                               Case Summary and Issues
[1]   Following a jury trial, Matthew Elzey, Jr., was convicted of theft as a Level 6

      felony due to a prior unrelated conviction. The trial court sentenced Elzey to

      two and one-half years in prison. Elzey raises three issues on appeal: 1)

      whether the evidence is sufficient to support Elzey’s conviction; 2) whether the

      trial court abused its discretion in sentencing Elzey; and 3) whether Elzey’s

      sentence is inappropriate in light of the nature of the offense and his character.

      Concluding the evidence is sufficient to support Elzey’s conviction, the trial

      court did not abuse its discretion in sentencing Elzey, and Elzey’s sentence is

      not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On September 4, 2015, Rebecca Powell, an Asset Protection Manager at the

      Wal-Mart in Huntington, Indiana, observed a man she later identified as Elzey

      moving around nervously in the electronics section of the store. Elzey was in

      an area of the store that Powell knew to be a high theft area. Powell observed

      Elzey take from a shelf a package containing an FM transmitter that converts

      music from a device through a car radio. Soon after, a woman joined Elzey in

      the electronics section and the couple moved into the toy section. The woman

      was later identified as Brooke Roark, Elzey’s girlfriend at the time.


[3]   Next, Powell observed Elzey use a key to break the package seal and remove

      the contents, discarding the empty packaging on a nearby shelf. Powell


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      continued to monitor Elzey and Roark as they moved to the clearance section,

      where Powell witnessed Elzey slip the merchandise into his pocket. Powell

      then contacted Jim Clark, the Wal-Mart Store Manager, while Elzey and Roark

      moved to the pharmacy section of the store. Elzey and Roark did not make any

      purchases, but rather proceeded to move past the cash registers, through the

      store metal detectors, and to the store’s automatic doors, which opened for

      them to step outside. Immediately before Elzey and Roark could exit the

      building, Powell and Clark stopped Elzey, confronted him with their

      observations, and requested he return the merchandise to them. Elzey

      informed Powell and Clark he left the merchandise on the shelf with the

      packaging.


[4]   Elzey turned around and went back into the store leading Powell and Clark to

      the electronics section where he claimed to have placed the merchandise.

      Powell disputed Elzey ever went back to the electronics section, and Elzey then

      stated the merchandise was in the clearance aisle. Powell asked Elzey to return

      the merchandise several times during the group’s tour of the store. Next, Elzey

      led the group to the vacuum aisle, where Powell retrieved the empty packaging

      and once again demanded Elzey return the merchandise. In response, Elzey

      stated, “I put it over here,” transcript at 70, and hurried around the corner

      toward another aisle that he had not previously occupied. Following Elzey

      around the corner, Powell observed Elzey pull the merchandise from his

      pocket, and Powell demanded Elzey hand it to her. Next, Powell took Elzey to

      the store office and called the Huntington Police Department. Once in the


      Court of Appeals of Indiana | Memorandum Decision 35A02-1604-CR-783 | November 30, 2016   Page 3 of 12
      office, Elzey told Powell he would cooperate and that he did not know why he

      removed the item from its package and put it in his pocket.


[5]   The State charged Elzey with theft, a Class A misdemeanor enhanced to a

      Level 6 felony due to a prior conviction for theft. On March 3, 2016, the State

      presented its case against Elzey to a jury. After the jury found Elzey guilty of

      Class A misdemeanor theft, Elzey admitted he had a prior conviction for theft,

      and the trial court entered judgment of conviction as a Level 6 felony. The trial

      court subsequently sentenced Elzey to two and one-half years in the

      Department of Correction. Elzey now appeals his conviction and sentence.



                                Discussion and Decision
                              I. Sufficiency of the Evidence
[6]   “When reviewing a claim of insufficient evidence, we neither reweigh the

      evidence nor assess witness credibility, considering instead only the evidence

      supporting the conviction and any reasonable inferences that the factfinder may

      have drawn from that evidence.” Gonzalez v. State, 908 N.E.2d 338, 340 (Ind.

      Ct. App. 2009). “Looking to the evidence and reasonable inferences drawn

      therefrom that support the verdict, we will affirm the conviction if there is

      probative evidence from which a reasonable jury could find the defendant guilty

      beyond a reasonable doubt.” Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.

      1997).




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[7]   Elzey contends the State failed to present sufficient evidence to support his

      conviction, arguing he did not leave the store premises and did not deprive

      Wal-Mart of the value or use of the confiscated merchandise. Elzey was

      charged with and convicted of theft under Indiana Code section 35-43-4-

      2(a)(1)(C)(i), which states:


              (a) 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. However, the offense is:


              (1) a Level 6 felony if:

                      ***

                      (C) the person has a prior unrelated conviction for:

                               (i) theft under this section . . . .

      Further, Indiana Code section 35-43-4-4(c) provides:


              (c) 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.



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[8]    As the State points out, the statute does not require evidence showing Elzey

       actually deprived Wal-Mart of value, but rather only evidence showing Elzey

       had the intent to deprive Wal-Mart of value or use through his unauthorized

       control over the merchandise. See Brief of Appellee at 12. In this instance, the

       circumstances surrounding Elzey’s conduct suggests he intended to remove the

       merchandise from the store without paying for it.


[9]    Elzey’s intent was on display from the moment Powell began observing him.

       Powell noticed Elzey acting nervous in an area of the store that was notorious

       for attracting thieves. Powell watched Elzey as he selected electronic

       merchandise, carried the package to a different section of the store, ripped open

       the packaging, discarded the packaging, and placed the merchandise in his left

       pocket. Elzey and Roark then walked past the cash registers, past the store

       metal detectors, and towards the exit where Powell and Clark stopped them.

       Elzey made no purchases at any time. Only after Powell and Clark stopped

       Elzey did he lead the group back into the store. Once Elzey led the group

       through several aisles without producing the merchandise, he entered a new

       aisle he had not previously occupied and attempted to discretely pull the

       merchandise from his pocket and place it on a shelf as if he had previously left it

       there. In the Wal-Mart office, Elzey confessed he did not know why he did it.


[10]   The fact that Elzey did not make it through the store’s exterior doors is

       irrelevant because he moved past the point where payment should have been

       made. In Chambliss v. State, 746 N.E.2d 73 (Ind. 2001), the defendant

       challenged the sufficiency of evidence supporting his theft conviction, arguing

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       he had neither exited the store nor passed the cash registers and therefore he did

       not exhibit an intent to commit theft. The Indiana Supreme Court disagreed,

       holding the jury could reasonably infer the defendant intended to exercise

       unauthorized control of the property because the defendant concealed the

       merchandise under his jacket and removed it only after being confronted by a

       store employee. Id. at 78; see also Hartman v. State, 164 Ind. App. 356, 359, 328

       N.E.2d 445, 447 (1975) (holding there was sufficient evidence to give rise to an

       inference the defendant exerted unauthorized control for purpose of committing

       theft when store employees caught defendant with merchandise concealed

       under his jacket a few feet from the store doors). As in Chambliss and Hartman,

       Elzey concealed the merchandise in his pocket and advanced past the point of

       payment to the store’s doors, evidence which we conclude is sufficient to show

       Elzey intended to deprive Wal-Mart of the value of its merchandise through

       unauthorized control.


                        II. Abuse of Discretion in Sentencing
[11]   Next, Elzey argues that the trial court abused its discretion in sentencing him by

       failing to provide a sentencing statement.


[12]   Sentencing decisions fall within the discretion of the trial court and may only be

       reviewed for abuse of such discretion. Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of

       discretion occurs if the decision is ‘clearly against the logic and effect of the

       facts and circumstances before the court, or the reasonable, probable, and actual


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       deductions to be drawn therefrom.’” Id. (citation omitted). Indiana law

       requires the trial court to give reasons for the sentence it imposes for a felony

       conviction when it finds mitigating or aggravating circumstances are present.

       Ind. Code § 35-38-1-3(3). The sentencing statement “must include a reasonably

       detailed recitation of the trial court’s reasons for imposing a particular

       sentence.” Anglemyer, 868 N.E.2d at 490.


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering a sentencing statement that explains reasons for
               imposing a sentence—including a finding of aggravating and
               mitigating factors if any—but the record does not support the
               reasons, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law.


       Id. at 490-91. “A trial court’s consideration of factors may be evidenced in

       either the written order or in an oral sentencing statement.” Anderson v. State,

       989 N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied.


[13]   Although there is no written sentencing order detailing the trial court’s reasons

       for imposing a two and one-half year sentence here, the trial court’s oral

       statements in sentencing Elzey suffice. At the sentencing hearing, the trial court

       reviewed Elzey’s presentence investigation report, asked Elzey whether it was

       correct, and then heard arguments about what sentence should be imposed.

       Elzey did not specifically advance any mitigating circumstances for the trial

       court’s consideration, other than to note he believed his drug addiction had

       influenced his decision-making and he had a pending petition to revoke

       Court of Appeals of Indiana | Memorandum Decision 35A02-1604-CR-783 | November 30, 2016   Page 8 of 12
       probation in another case which would expose him to up to two years of

       incarceration. The State noted Elzey’s age—twenty-two at the time of

       sentencing—and his criminal history and response to prior leniency. Following

       the arguments, the trial court identified Elzey’s criminal history as the reason

       for imposing a two and one-half year sentence when it stated, “The defendant’s

       criminal history indicates he had two (2) adjudications as a juvenile, two (2)

       prior felony offenses, three (3) petitions to revoke. He was on probation for

       robbery at the time this was committed.” Tr. at 139. A defendant’s criminal

       history is a legitimate aggravating circumstance, see Phillips v. State, 869 N.E.2d

       512, 515 (Ind. Ct. App. 2007), and the trial court’s oral statement provided

       reasonably detailed reasons supported by the record for imposing the sentence it

       chose. Such a statement provides an adequate basis for review of the trial

       court’s reasoning in sentencing Elzey and was not an abuse of discretion.


                                 III. Inappropriate Sentence
[14]   Elzey also challenges his sentence under Indiana Appellate Rule 7(B), arguing

       his sentence itself is inappropriate. Appellate Rule 7(B) provides 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.” “The principal role of

       appellate review should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The appropriateness of a

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       sentence turns on the culpability of the defendant, the severity of the crime, the

       damage done to others, and an array of other factors that might be related to the

       circumstances giving rise to the sentence. Id. at 1224. “We should concentrate

       less on comparing the facts of this case to others, whether real or hypothetical,

       and more on focusing on the nature, extent, and depravity of the offense for

       which the defendant is being sentenced, and what it reveals about the

       defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)

       (quotation omitted), trans. denied. “The appellant bears the burden of

       demonstrating his sentence is inappropriate.” Wells v. State, 2 N.E.3d 123, 131

       (Ind. Ct. App. 2014), trans. denied.


[15]   First, we consider the nature of Elzey’s offense. When reviewing the nature of

       the offense, a relevant factor is whether there is anything more or less egregious

       about the offense which distinguishes it from a “typical” offense accounted for

       by the advisory sentence set by the legislature. Id. The sentencing range for a

       Level 6 felony is six months to two and one-half years, with the advisory

       sentence being one year. Ind. Code § 35-50-2-7(b). Here, Elzey stole a piece of

       store merchandise by destroying the packaging and attempting to conceal the

       item in his pocket. When confronted by Powell and Clark, Elzey lied to the

       store personnel and attempted to further conceal his criminal act by leading the

       group on a wild goose chase throughout the store. Elzey also attempted to

       covertly dump the merchandise. Although Elzey was compliant when taken to

       the store office, he attempted to deceive the store’s personnel numerous times




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       before admitting his fault. However, the nature of this offense is not overtly

       better or worse than a “typical” theft offense.


[16]   Next, we consider the character of the offender. When considering the

       character of the offender, one relevant factor is the defendant's criminal history.

       Wells, 2 N.E.3d at 131. It is clear from Elzey’s criminal history that he was no

       stranger to criminal activity. Elzey was adjudicated a juvenile delinquent in

       2010 for truancy and incorrigibility. In the same year, Elzey was adjudicated a

       delinquent for committing an act equivalent to an adult battery charge. Due to

       his juvenile adjudications, he was placed on probation until the age of twenty-

       one. In 2012, when he was eighteen, Elzey committed theft, a Class D felony;

       he was released from probation unsatisfactorily due to committing a new

       criminal offense. In the same year, Elzey was convicted of robbery, a Class C

       felony, and sentenced to five years’ imprisonment in the Department of

       Correction with three years suspended to probation. His probation was revoked

       in 2014 and he was ordered to serve one year of his previously-suspended

       sentence. In 2015, which still on probation for robbery, he committed the

       present offense. Elzey’s actions expose his disregard for the law and his failure

       to reform despite any lenient measures previously extended to him. Also, Elzey

       developed this criminal history over a relatively short period through his adult

       life, as he was only twenty-two years of age when sentenced for this offense.

       Given Elzey’s criminal history, coupled with the fact that previous leniency has

       had no effect in curbing his criminal behavior, we conclude a two and one-half

       year sentence is not inappropriate.


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                                              Conclusion
[17]   There was sufficient evidence to support Elzey’s theft conviction. As to his

       sentence, the trial court did not abuse its discretion in sentencing Elzey to two

       and one-half years, and the sentence is not inappropriate given the nature of the

       offense and the character of the offender. Therefore, we affirm Elzey’s

       conviction and sentence.


[18]   Affirmed.


       Mathias, J., and Brown, J., concur.




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