                                                                   FILED
MEMORANDUM DECISION                                            Jul 06 2016, 5:54 am

Pursuant to Ind. Appellate Rule 65(D),                             CLERK
                                                               Indiana Supreme Court
this Memorandum Decision shall not be                             Court of Appeals
                                                                    and Tax Court

regarded as precedent or cited before 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
Paula M. Sauer                                           Gregory F. Zoeller
Danville, Indiana                                        Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jamar Sheets,                                            July 6, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A04-1512-CR-2190
        v.                                               Appeal from the
                                                         Hendricks Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Mark A. Smith, Judge
                                                         Trial Court Cause No.
                                                         32D04-1409-F6-200



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016    Page 1 of 10
[1]   Jamar Sheets (“Sheets”) was convicted after a jury trial of theft1 as a Level 6

      felony. He appeals, raising the following restated issue for our review: whether

      the State presented sufficient evidence to support his conviction for theft,

      specifically (1) whether he intended to deprive the victim of the value or use of a

      wallet and cell phone, and (2) whether he exerted unauthorized control over the

      property.


[2]   We affirm.


                                       Facts and Procedural History
[3]   Around 6:15 a.m. on September 13, 2014, Steve Krause (“Krause”), his

      daughter, and some of his co-workers from the Indiana Department of

      Correction were on their way to a softball tournament at Hummel Park in

      Plainfield, Indiana. They stopped at a nearby McDonald’s restaurant to eat

      breakfast. Krause approached the counter to order, and because he was

      wearing sweatpants with no pockets, he placed his wallet and cell phone on the

      counter. When his food was ready, Krause sat down at one of the tables and

      began eating his breakfast; however, he had accidentally left his wallet and cell

      phone on the counter.


[4]   A short time later, Sheets and his co-worker approached the counter to order

      and noticed the wallet and cell phone lying there. Sheets put both items in his




      1
          See Ind. Code § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 2 of 10
      jacket pocket, and, after receiving the food his co-worker ordered, he and his

      co-worker returned to work. Sheets left the wallet and cell phone in his truck.


[5]   After only taking a few bites of his breakfast, Krause realized that he had

      accidentally left his wallet and cell phone at the counter. He went to the

      counter, noticed his belongings were not there, and asked an employee if they

      had been turned in. Krause and his co-workers then searched the restaurant,

      but they were unable to locate the items. Krause called the police, who came to

      the restaurant and took a report. After speaking with the police, Krause went to

      the softball tournament. About thirty minutes after his belongings were taken,

      Krause’s girlfriend notified him that someone had posted a message to Krause

      on his Facebook account, which stated, “your phone is [sic] good hands now

      and oh by the way he is a donor.” Tr. at 160, 170. A second post was also

      made, but Krause could not remember what it said. Neither of the posts

      contained any identifying information as to how and where Krause could

      retrieve his belongings. After seeing the Facebook post, Krause immediately

      cancelled his credit cards and deactivated his cell phone.


[6]   Later that day, Plainfield Police Department Sergeant Chad Parks (“Sergeant

      Parks”) went back to the McDonald’s to retrieve surveillance video of the

      restaurant from that morning. Sergeant Parks viewed the video and observed

      Sheets pick up Krause’s wallet and cell phone and put them into his jacket

      pocket. The manager of the restaurant, Angela Pruitt (“Pruitt”), recognized

      Sheets as a regular customer and agreed to call the police if she saw him again.



      Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 3 of 10
[7]   After work that day, Sheets went to his mother’s house to pick up his children

      and told his mother about finding the wallet and cell phone. Sheets removed all

      of the contents, but the cash from the wallet, including Krause’s debit cards,

      and put the items in two separate envelopes addressed to Krause’s home

      address. Several days later, Krause received the envelopes from Sheets. The

      envelopes had no identifying information and did not contain Krause’s wallet

      or cell phone. Krause called Sergeant Parks to update him regarding this.


[8]   Approximately ten days after Sheets took Krause’s belongings, Sergeant Parks

      received a call from Pruitt. She told Sergeant Parks that Sheets had come back

      into the McDonald’s, and she gave Sergeant Parks a description of Sheets’s

      vehicle and his license plate number. A few days later, while out patrolling,

      Sergeant Parks saw Sheets’s vehicle pull into a gas station. Sergeant Parks

      arrested Sheets at that time. Krause’s cell phone was recovered, but his wallet

      and the cash from inside the wallet were never recovered.


[9]   On September 24, 2014, the State charged Sheets with theft as a Class A

      misdemeanor and theft as a Level 6 felony. On August 24, 2015, a jury trial

      occurred, at the conclusion of which, Sheets was found guilty as charged. The

      trial court entered judgment on one count of theft as a Level 6 felony and

      sentenced Sheets to 730 days with 728 days suspended and credit for time

      served. Sheets now appeals.




      Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 4 of 10
                                      Discussion and Decision
[10]   The deferential standard of review for sufficiency claims is well settled. When

       we review the sufficiency of evidence to support a conviction, we do not

       reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

       928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

       evidence most favorable to the verdict and the reasonable inferences that can be

       drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

       2014), trans. denied. We also consider conflicting evidence in the light most

       favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

       App. 2013), trans. denied. We will not disturb the jury’s verdict if there is

       substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.

       We will affirm unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.

       2012). As the reviewing court, we respect “the jury’s exclusive province to

       weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).


[11]   Sheets argues that insufficient evidence was presented to support his conviction

       for theft. In order to convict him of theft as a Level 6 felony, the State was

       required to prove beyond a reasonable doubt that Sheets knowingly or

       intentionally exerted unauthorized control over Krause’s property, with intent

       to deprive Krause of any part of its value or use and that Sheets had a prior

       unrelated conviction for either theft or conversion. Ind. Code § 35-43-4-

       2(a)(1)(C).



       Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 5 of 10
[12]   Sheets first contends that the State failed to present sufficient evidence to

       support his conviction for theft because there was insufficient evidence that he

       intended to deprive Krause of the use or value of his wallet and cell phone,

       arguing that his behavior did not support such a conclusion. He maintains that

       the evidence showed that he did not use or attempt to use Krause’s debit cards

       and that he did not use, sell, or dispose of Krause’s cell phone. Sheets also

       alleges that the evidence established that he mailed the contents of Krause’s

       wallet to him, and Sheets claims that he told his mother to include a note with

       Sheets’s name and number in the envelopes. Sheets further asserts that the

       evidence showed that he made no effort to dispose of Krause’s property or

       comingle it with his own property. Sheets argues that this evidence

       demonstrated that he did not intend to deprive Krause of his property.


[13]   “A person engages in conduct ‘intentionally’ if, when he engages in the

       conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a).

       Intent can be inferred from a defendant’s conduct and the natural and usual

       sequence to which such conduct logically and reasonably points. Lee v. State,

       973 N.E.2d 1207, 1210 (Ind. Ct. App. 2012), trans. denied. The fact finder is

       entitled to infer intent from the surrounding circumstances. Id. Intent may be

       proved by circumstantial evidence. Id.


[14]   In the present case, the evidence most favorable to the verdict shows that, a

       short time after Krause accidentally left his wallet and cell phone on the counter

       at McDonald’s, Sheets picked up the items and placed them into the pocket of

       his jacket. Sheets did not alert the McDonald’s staff to the items he had found,

       Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 6 of 10
       hand the items over to the staff to hold them for the owner, or leave his name

       and contact information in case the owner came back looking for his

       belongings. Further, even though Sheets had access to Krause’s cell phone and

       the contact information contained on the phone, he did not attempt to notify

       either Krause or any of his friends that he had found Krause’s belongings.

       Additionally, although Sheets mailed items from Krause’s wallet back to

       Krause, he never returned Krause’s wallet and cell phone nor did he include

       any identifying information on the outside of the envelope or inside the

       envelope that would have enabled Krause to contact him. The evidence

       presented showed that Sheets never contacted the police regarding finding

       Krause’s property, and despite having Krause’s address, Sheets never attempted

       to go to the residence to return the items. Krause’s cell phone was not

       recovered until after Sheets’s arrest, which was over ten days after Sheets took

       the items. Krause’s wallet and the cash inside were never recovered.


[15]   Sheets claims that he asked his mother to include a sticky note with his number

       on it so Krause could contact him. Tr. at 229, 243, 254; Appellant’s Br. at 10.

       However, the envelope and its contents was admitted into evidence at trial, and

       no note was contained in the envelope. Tr. at 165-66; State’s Exs. 1-4. Under

       our standard of review, we are constrained to only look to the evidence most

       favorable to the verdict and to consider conflicting evidence in the light most

       favorable to the trial court’s ruling. Fuentes, 10 N.E.3d at 75; Oster, 992 N.E.2d

       at 875. Therefore, viewing the evidence presented at trial under this standard,

       we conclude that the State presented sufficient evidence that Sheets intended to


       Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 7 of 10
       deprive Krause of the use or value of his property. Sheets’s arguments to the

       contrary are requests for this court to reweigh the evidence and judge the

       credibility of the witnesses, which we cannot do. Boggs, 928 N.E.2d at 864.


[16]   Sheets next argues that the State presented insufficient evidence to support his

       conviction because the evidence showed that he had a reasonable belief that his

       control over Krause’s property was authorized. In order to convict him, the

       State had to prove that he knowingly or intentionally exerted unauthorized

       control over Krause’s property. Ind. Code § 35-43-4-2(a). Sheets contends that,

       because when he took Krause’s property he was picking up lost property and

       attempting to return it, he had Krause’s implied consent to control Krause’s

       belongings until the items could be returned to Krause. Therefore, Sheets

       asserts that he did not exert unauthorized control over Krause’s property.


[17]   The term “unauthorized” is defined in Indiana Code section 35-43-4-1.

       Pertinent to the present case, “a person’s control over property of another

       person is ‘unauthorized’ if it is exerted: (1) without the other person’s consent.”

       Ind. Code § 35-43-4-1(b)(1).


[18]   Here, the evidence most favorable to the verdict showed that when Sheets

       picked up Krause’s wallet and cell phone from the counter at McDonald’s, he

       concealed the items in the pocket of his jacket. Krause testified at trial that he

       did not give anyone authorization to have his wallet or cell phone. Tr. at 167.

       Further, when Krause determined that his belongings had been stolen and not

       lost, he immediately cancelled his credit and debit cards and his cell phone


       Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 8 of 10
       service so no one could use them. Sheets claims that he had implied consent to

       keep Krause’s belongings because he was attempting to return them to Krause.

       However, as Sheets concedes, implied consent is not a recognized defense to

       theft in Indiana. Appellant’s Br. at 12-13. Additionally, the evidence presented

       did not support the conclusion that Sheets was trying to return the items to

       Krause. At no time after he took the wallet and cell phone, did Sheets contact

       Krause with information as to how to get in touch with Sheets to get his

       belongings back. Sheets did not ever contact any of the contact numbers in

       Krause’s phone to alert them that he found Krause’s things nor did he post any

       identifying information on Krause’s Facebook account despite having access to

       it through the cell phone. Although Sheets contends that he intended to

       provide his name and number in the envelopes sent to Krause, the evidence

       presented was that no contact information was included. Furthermore,

       although Krause’s cell phone was eventually recovered after Sheets was

       arrested, Krause’s wallet and the cash inside were never recovered. Based on

       the evidence presented at trial, we conclude that sufficient evidence was

       presented to prove that Sheets exerted unauthorized control over Krause’s

       property. Sheets’s challenges to the contrary are requests for us to reweigh the

       evidence, which cannot do on appeal. Boggs, 928 N.E.2d at 864. We,

       therefore, conclude that the State presented sufficient evidence to support

       Sheets’s conviction for theft.


[19]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 9 of 10
Riley, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016   Page 10 of 10
