MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Dec 30 2019, 10:32 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rodney T. Sarkovics                                      Curtis T. Hill, Jr.
Sarkovics Law                                            Attorney General of Indiana
Carmel, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

LaShawn A. Tanks,                                        December 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-910
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable David K. Najjar,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D05-1704-F6-2417



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019               Page 1 of 8
                                           Statement of the Case
[1]   LaShawn Tanks (“Tanks”) appeals his convictions, following a jury trial, of

      Level 6 felony theft1 and Level 6 felony fraud.2 He argues that the evidence is

      insufficient to support his convictions because the State failed to: (1) establish

      venue in Hamilton County; and (2) prove his identity beyond a reasonable

      doubt. Concluding that the evidence is sufficient, we affirm his convictions.


[2]   We affirm.


                                                     Issues
                  1.          Whether there is sufficient evidence to establish venue in
                              Hamilton County.


                  2.          Whether there is sufficient evidence to prove Tanks’
                              identity beyond a reasonable doubt.


                                                      Facts
[3]   The facts most favorable to the verdict reveal that the State charged Tanks with

      Level 6 felony theft and Level 6 felony fraud in March 2017. Testimony at trial

      revealed that Kayla Stauffer (“Stauffer”) had lunch at a Carmel restaurant on

      March 1, 2017 at approximately 2:00 p.m. Stauffer ordered her meal at the

      counter and used a Chase credit card to pay for it. Tanks, who is 6’5” tall and




      1
          IND. CODE § 35-43-4-2.
      2
          I.C. § 35-43-5-4.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019     Page 2 of 8
      weighs nearly 300 pounds, brought her food to her table. There were only two

      employees in the restaurant at the time of Stauffer’s purchase, the man who had

      taken her payment at the cash register and Tanks.


[4]   That same evening, Stauffer received an alert from Chase about recent use on

      her credit card. Stauffer noticed that she did not have the credit card in her

      possession and contacted Chase regarding the alert. Stauffer learned that

      several purchases had been made with her card that evening at Meijer and Hat

      World, both located on the west side of Indianapolis within a mile from Tanks’

      home. She told the Chase representative that she had not authorized any

      purchases that day other than her lunch and that she had not seen her credit

      card since she had made that purchase.


[5]   The following day, Stauffer contacted the Carmel Police Department and

      reported the unauthorized purchases. Carmel Police Department Officer

      Michael Pitman (“Officer Pitman”) was dispatched to the restaurant where

      Stauffer had purchased lunch. Officer Pitman testified that he had talked to the

      manager and had obtained a list of employees who had worked the previous

      day, which included Tanks. Timecards showed that Tanks had left the

      restaurant at approximately 5:20 p.m. the previous day. While speaking with

      the manager, Officer Pitman noticed Tanks, who was wearing a bright red cap,

      walk into the parking lot and move his light blue Ford SUV to an underground

      parking garage. When he returned to the restaurant, Tanks was no longer

      wearing the red cap.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019   Page 3 of 8
[6]   Officer Pitman further testified that he had gone to the westside Indianapolis

      Meijer and obtained surveillance photographs of the parking lot and store that

      had been taken at approximately 6:30 p.m. the evening of the unauthorized

      purchases. In the photographs, the officer noticed a man, whom he identified

      as Tanks, park the blue Ford SUV that he had seen Tanks move at the Carmel

      restaurant. The photographs also showed Tanks entering the store, walking

      throughout it, and purchasing almost $400 worth of items. Tanks was wearing

      a bright red cap. The Meijer surveillance photos were admitted into evidence at

      trial without objection.


[7]   Also at trial, Carmel Police Department Detective Mark Paris (“Detective

      Paris”) testified that he had gone to the westside Hat World to obtain

      surveillance video of the purchases made with Stauffer’s credit card. Detective

      Paris identified the man making the purchases as Tanks after comparing Tanks’

      BMV photograph to the man in the video. The surveillance video was also

      admitted into evidence at trial without objection.


[8]   At the close of the presentation of evidence, Tanks orally moved for a directed

      verdict on the theft charge based on the State’s alleged failure to establish venue

      in Hamilton County. Tanks specifically argued as follows:


              They have not presented any evidence that my client committed
              an official, or excuse me, an essential element of the offense
              within the confines of Hamilton County. The only testimony
              that was given within, that occurred within Hamilton County
              does not have my client in possession of the card, touching the
              card, taking the card, only that she, Ms. Kayla Stauffer - I think
              I'm pronouncing that right - gave it to somebody else. She
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019   Page 4 of 8
               doesn't know what happened to the card after that point. Even if,
               assuming is a big assumption, that the person in the security
               video for both Meijer and Hat World is my client, both of those
               things happened in Marion County, not Hamilton County. And
               I do not believe they have proven anything in Hamilton County.

       (Tr. 114).


[9]    The State responded that there was no dispute that Tanks had been present in

       the Hamilton County restaurant when Stauffer had purchased lunch with her

       credit card. He had clocked out of the Carmel restaurant at 5:20 p.m., and the

       unauthorized transactions had occurred an hour later in Indianapolis.

       According to the State, “there [was] no inference or determination from the

       evidence that [could] be made other than that in that short period of time

       [Tanks] removed that card from Carmel to Marion County and consummated

       those purchases.” (Tr. 115). The State concluded that because “they are so

       closely woven in time and place . . . there [was] ample evidence in the record

       for the jury to find venue appropriate in Hamilton County.” (Tr. 115). The

       trial court denied ‘ motion, and the jury convicted him of theft and fraud.

       Tanks now appeals.


                                                   Decision
[10]   Tanks argues that there is insufficient evidence to support his theft and fraud

       convictions because the State failed to: (1) establish venue in Hamilton County;

       and (2) prove his identity as the perpetrator of the offenses beyond a reasonable

       doubt. We address each of his arguments in turn.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019   Page 5 of 8
       1.      Venue


[11]   Tanks first argues that there is insufficient evidence to establish venue in

       Hamilton County. Specifically, Tanks contends that there is “no evidence that

       Tanks touched or possessed the credit card, or took any act in furtherance of

       either charge, in Hamilton County.” (Tanks’ Br. at 8).


[12]   Tanks is correct that he has a constitutional and statutory right to be tried in the

       county where the offenses were committed. See Ind. Const. Art. I, § 13 and

       Ind. code § 35-32-2-1(a). If the commission of an offense begins in one county

       and continues into another county, the State may file charges in any of the

       involved counties. Davis v. State, 520 N.E.2d 1271, 1274 (Ind. 1988). The State

       is required to prove venue, although it is not an element of the offense. Peacock

       v. State, 126 N.E.2d 892, 897 (Ind. Ct. App. 2019). As a result, the State may

       prove venue by a preponderance of the evidence rather than by proof beyond a

       reasonable doubt. Id. Circumstantial evidence may be sufficient to establish

       proper venue. Id. We neither weigh the evidence nor resolve questions of

       credibility but look to the evidence and reasonable inferences drawn therefrom

       that support the conclusion of requisite venue. Id.


[13]   Here, we find ample circumstantial evidence to establish venue in Hamilton

       County. Specifically, our review of the evidence reveals that Stauffer used her

       credit card to purchase lunch at a Carmel restaurant at approximately 2:00 p.m.

       and had last seen her card at that time. Tanks, who was only one of two

       employees in the restaurant, clocked out at 5:20 p.m. and the unauthorized


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019   Page 6 of 8
       purchases began approximately an hour later in Indianapolis. Contrary to

       Tanks’ argument, this evidence and the reasonable inferences to be drawn

       therefrom supports the conclusion that Tanks touched or possessed the card in

       Hamilton County. The evidence is therefore sufficient to establish venue in

       Hamilton County.


       2.      Identity


[14]   Tanks also argues that there is insufficient evidence to support his theft and

       fraud convictions because the State failed to prove his identity as the perpetrator

       of the offenses beyond a reasonable doubt. Our standard of review for

       sufficiency of the evidence claims is well settled. We consider only the

       probative evidence and reasonable inferences supporting the verdict. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or

       judge witness credibility. Id. We will affirm the conviction unless no

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

       reasonable doubt. Id. The evidence is sufficient if an inference may be

       reasonably drawn from it to support the verdict. Id. at 147. “Identity may be

       established entirely by circumstantial evidence and the logical inferences drawn

       therefrom.” Cherry v. State, 57 N.E.3d 867, 877 (Ind. Ct. App. 2016) (citing

       Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind. 1990)), trans. denied.


[15]   Tanks specifically argues that “[n]one of the State’s evidence reflected that the

       individual who possessed and/or used [Stauffer’s] credit card was Tanks.”

       (Tanks’ Br. at 12). However, our review of the evidence reveals sufficient


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019   Page 7 of 8
       evidence to support the jury’s conclusion that Tanks was the individual who

       committed the offenses.


[16]   Specifically, the evidence reveals that surveillance photographs from Meijer

       showed a man that Officer Pitman identified as 6’5” Tanks arriving in the

       parking lot. Tanks was driving the blue Ford SUV that Officer Pitman had seen

       him move from the Carmel restaurant parking lot to a nearby underground

       garage. The photographs also showed a man that Officer Pitman identified as

       Tanks making the unauthorized purchases with Stauffer’s credit card. These

       photographs were admitted into evidence at trial without objection, and the jury

       had the opportunity to compare the man in the photographs to Tanks.


[17]   In addition, the surveillance video from Hat World showed a man that

       Detective Paris identified as Tanks making the unauthorized purchases with

       Stauffer’s credit card. The video was also admitted into evidence at trial

       without objection, and the jury had the opportunity to compare the man in the

       video to Tanks. This evidence is sufficient to prove Tanks’ identity beyond a

       reasonable doubt and support his convictions. Tanks’ argument that the images

       are not clear enough to identify him is an invitation for us to reweigh the

       evidence, which we cannot do. See Drane, 867 N.E.2d at 146.


[18]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-910 | December 30, 2019   Page 8 of 8
