MEMORANDUM DECISION
                                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             Dec 05 2018, 6:21 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David M. Payne                                           Curtis T. Hill, Jr.
Ryan & Payne                                             Attorney General of Indiana
Marion, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Lynn Hand,                                      December 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-890
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey D. Todd
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         27D01-1706-F6-293



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018                    Page 1 of 7
[1]   Jennifer Lynn Hand appeals her conviction for Level 6 felony theft. 1 She also

      appeals the trial court’s order of restitution as the court did not inquire into her

      ability to pay. We affirm in part, reverse in part, and remand with instructions.



                                Facts and Procedural History
[2]   Hand worked as an assistant manager at the Circle K store located on Bradford

      Street in Marion, Indiana (“Store #2203”). She was a “trusted employee.” (Tr.

      Vol. II at 88.) However, Hand had been experiencing problems in her family

      and had requested time off to travel to see them out of state.


[3]   Ericka Kroft was the manager at Store #2203. Robert Haynes was the market

      manager over that store and seventeen others. On May 16, 2017, Haynes was

      notified by the corporate office that no deposit had been made for Store #2203

      for May 11, 2017. Store #2203 used Star Financial (“Star”) as its bank.


[4]   Haynes informed Kroft the company had been unable to locate the deposit for

      Store #2203. Kroft investigated. 2 Because Kroft had been scheduled to work

      on May 11, Kroft assumed she had taken the deposit to the bank. However,




      1
          Ind. Code § 35-43-4-2 (2017).
      2
        Circle K had procedures in place whereby either the manager or one of the two assistant managers must
      take the daily deposit to the bank. This person was to go straight to the bank from the store. If it was a
      weekday, the deposit was to be made inside the bank with the “first available teller.” (Tr. Vol. II at 75.) The
      bank teller would keep the white copy of the deposit slip and return the pink and yellow copies, together with
      the deposit receipt. The person making the deposit was to return the documentation to the store immediately
      or at the beginning of that person’s next shift at the store. On weekends, the person was allowed to use the
      bank’s dropbox and the documentation would be retrieved during Monday’s deposit.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018                     Page 2 of 7
      she could not locate the deposit receipt from the bank or the pink and yellow

      copies of the deposit slip, which the store retains. Kroft contacted Star to

      request the bank review its documentation for a deposit and its security footage

      to see if she had been there that day. Star was unable to find any

      documentation of a deposit for Store #2203 that day. Nor did Star’s security

      footage show Kroft at the bank that day. Kroft thought she had requested Star

      to see if Hand had been in the bank that day; however, she was not “one

      hundred percent [sure]” she had. (Id. at 114.) Nonetheless, Star personnel

      “knew what [Hand] looked like.” (Id. at 115.)


[5]   Hand and Kroft both worked on May 11, 2017. Both were authorized to make

      deposits for Store #2203. Kroft remembered asking Hand to take the deposit to

      the bank and Hand complying. However, Kroft was unable to locate any of the

      deposit documentation. Haynes came to the store but was also unable to find

      the deposit documentation. Kroft and Haynes reviewed Store #2203’s security

      footage. That footage showed Kroft dealing with a customer complaining of

      credit card fraud, Hand leaving the store with the deposit, and Kroft leaving the

      store without the deposit.


[6]   On May 25, 2017, Marion Police Department Officer Cody Weigle was called

      to Store #2203 to take a report of theft from Haynes and Kroft. The State filed

      a charge of Level 6 felony theft against Hand. On February 26, 2018, the trial

      court held a jury trial. The jury found Hand guilty.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018   Page 3 of 7
[7]   On March 14, 2018, the trial court sentenced Hand to two years, with six

      months suspended to probation. As a condition of her probation, Hand was

      ordered to pay restitution “to Circle K in the amount of $2,876.84.” (Appealed

      Order at 2.) After sentencing Hand to one and one-half years executed and six

      months on “formal supervised probation[,]” (Tr. Vol. II at 176), the trial court

      ordered Hand to pay the restitution as a condition of her probation “in equal

      monthly installments until such time as the restitution is paid in full.” (Id.)



                                Discussion and Decision
                                          Sufficiency of Evidence

[8]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference reasonably may be drawn from it to support the verdict. Id. at

      147.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018   Page 4 of 7
[9]    To prove Hand committed Level 6 felony theft, the State had to present

       evidence Hand “knowingly or intentionally exert[ed] unauthorized control over

       the property of at least $750.00 . . . with the intent to deprive Circle K of any

       part of the use or value of the property[.]” (App. Vol. II at 18); see also Ind.

       Code § 35-43-4-2 (elements of theft). “[I]ntent is a mental function and without

       a confession, it must be determined from a consideration of the conduct, and

       the natural consequences of the conduct.” Duren v. State, 720 N.E.2d 1198,

       1202 (Ind. Ct. App. 1999), trans. denied. Accordingly, intent often must be

       proven by circumstantial evidence. Id. The trier of fact is entitled to infer intent

       from the surrounding circumstances. White v. State, 772 N.E.2d 408, 412 (Ind.

       2002).


[10]   The State presented evidence that: 1) Hand was given the deposit; 2) Hand left

       Store #2203 with the deposit; 3) Star did not have documentation of a deposit

       from Store #2203 that day; 4) the documentation Store #2203 keeps after a

       successful deposit was missing; and 5) Hand had family crises during this

       timeframe that resulted in travel expenses.


[11]   Hand contends the State’s evidence was purely circumstantial and, therefore,

       insufficient to prove Hand committed theft. Although no one saw Hand steal

       the money, it was reasonable for the jury to infer she did because, together with

       the security footage indicating Hand left the store with the deposit, neither the

       bank nor the store had record of the deposit being made. See Bonds v. State, 721

       N.E.2d 1238, 1242 (Ind. 1999) (“circumstantial evidence will be deemed

       sufficient if inferences may reasonably be drawn that enable the trier of fact to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018   Page 5 of 7
       find the defendant guilty beyond a reasonable doubt”). Hand’s request for us to

       consider alternative theories for why the deposit was missing are an invitation

       for us to reweigh the evidence, which we cannot do. See McHenry v. State, 820

       N.E.2d 124, 126 (Ind. 2005) (appellate court does not reweigh evidence or

       judge the credibility of witnesses).


                                                   Restitution

[12]   “Generally, an order of restitution is within the trial court’s discretion, and it

       will be reversed only upon a finding of an abuse of that discretion. An abuse of

       discretion occurs when the trial court misinterprets or misapplies the law.”

       Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004). A restitution order

       must be supported by sufficient evidence of actual loss sustained by the victim

       of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.

       A trial court may order restitution as a condition of probation; however, as a

       defendant can be imprisoned for failing to meet the conditions of probation, the

       trial court is required to inquire into the defendant’s ability to pay that

       restitution. Bell v. State, 59 N.E.3d 959, 963 (Ind. 2016).


[13]   Hand argues the trial court abused its discretion because it did not inquire as to

       her ability to pay restitution. The State agrees. If a trial court fails to make

       such an inquiry and a defendant fails to provide sufficient evidence of her

       inability to pay, the appropriate remedy is to remand for a new restitution

       order. Id. at 966.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018   Page 6 of 7
[14]   Here, the trial court ordered restitution of $2,876.84 and ordered it be paid

       during her probation, i.e., in six months; however, the court did not inquire as

       to Hand’s ability to pay restitution or to pay it at that rate. Hand also did not

       have an opportunity to present any evidence of her inability to pay restitution.

       Hand is entitled to such an inquiry. See M.L. v. State,838 N.E.2d 525, 530 (Ind.

       Ct. App. 2005) (defendant is entitled to a hearing on his or her ability to pay

       restitution), reh’g denied, trans. denied. As the trial court’s order for restitution

       constitutes an abuse of discretion because it did not make an inquiry into

       Hand’s ability to pay restitution, we reverse the restitution order and remand to

       the trial court with instructions to inquire into Hand’s ability to pay an order of

       restitution. See Bell, 59 N.E.3d at 966 (proper remedy for failure to inquire into

       defendant’s ability to pay is to reverse and remand for a new order following an

       inquiry as to ability to pay).



                                               Conclusion
[15]   Although circumstantial, the State presented sufficient evidence Hand

       committed theft. The trial court abused its discretion when it entered a

       restitution order as a condition of her probation without inquiring into Hand’s

       ability to pay. Accordingly, we affirm in part, reverse in part, and remand with

       instructions.


[16]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Robb, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018   Page 7 of 7
