      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                            FILED
      regarded as precedent or cited before any
      court except for the purpose of establishing                                Aug 01 2017, 8:48 am

      the defense of res judicata, collateral                                          CLERK
                                                                                   Indiana Supreme Court
      estoppel, or the law of the case.                                               Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stanley F. Wruble III                                    Curtis T. Hill, Jr.
      Wruble Law Group                                         Attorney General of Indiana
      South Bend, Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Neil Haeck,                                              August 1, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               50A04-1606-CR-1503
              v.                                               Appeal from the Marshall Superior
                                                               Court
      State of Indiana,                                        The Honorable Robert O. Bowen,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               50D01-1409-FD-312



      Mathias, Judge.


[1]   Following a jury trial in Marshall Superior Court, Neil Haeck (“Haeck”) was

      convicted of one count of Class D felony theft. Haeck appeals and presents two


      Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017                Page 1 of 11
      issues, one of which we find dispositive: whether the State presented evidence

      sufficient to support the jury’s verdict. Concluding that the evidence presented

      by the State was insufficient to show that Haeck exerted unauthorized control

      over the property at issue, we reverse.


                                 Facts and Procedural History
[2]   In 2012, Haeck was the superintendent of the Marshall County Highway

      Department. Among his numerous other duties, Haeck was responsible for the

      budget of the Highway Department. As the Highway Department accumulated

      scrap metal from sources such as old road signs, old vehicles, and damaged

      culvert pipes, Haeck would instruct department employees to take the scrap to a

      nearby salvage yard, Lewis Salvage Corp. (“Lewis Salvage”).


[3]   At Lewis Salvage, the department’s employees would drive the scrap-loaded

      trucks onto a weighing station, where scales would record the total weight of

      the vehicle, including the scrap metal. After the scrap metal was unloaded, the

      trucks would then be reweighed, and the weight of the empty truck would be

      subtracted from the weight of the loaded truck to arrive at the weight of the

      scrap metal. A cashier employed by Lewis Salvage then paid the Highway

      Department employee in cash for the value of the scrap metal. The standard

      procedure was for the cashier to count the money and hand the money to the

      truck driver, who signed a ticket to acknowledge their receipt of the payment.

      Some drivers signed their names but other drivers signed the tickets only in the

      name of the Marshal County Highway Department. Lewis Salvage

      photographed the customers receiving the cash and kept business records of its
      Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017   Page 2 of 11
      transactions with the Highway Department. At first, the cashiers bound the

      cash only with a rubber band but later began to place the cash into envelopes

      sealed with a piece of tape.


[4]   Once the Highway Department truck drivers returned to the county garage,

      they would typically give the cash to either Haeck, if he was present, or to Shari

      Miller (“Miller”), who was employed as a clerk and bookkeeper for the

      department. Miller would give Haeck the cash, if he was in the office, and

      would place the cash in the inbox on Haeck’s desk if he was out of the office.

      Though this was the usual procedure, it was not the only one employed.


[5]   On a few occasions, the drivers gave the cash from Lewis Salvage to Jon Bates

      (“Bates”), who was a “group leader” or foreman reporting directly to Haeck.

      Bates would then place the cash in a locked desk drawer and give the cash to

      Haeck the next morning or whenever he next saw Haeck. Bates counted the

      money he received and recorded the amount in a notebook he kept. Bates

      explained that Haeck put the cash in a filing cabinet.


[6]   Kurt Mishler (“Mishler”) was also a foreman at one point during Haeck’s

      tenure. Mishler received the cash from a truck driver one time when Haeck was

      not available. He took the envelope containing the cash and placed it in a keyed

      lock box in his office. Mishler then delivered the cash to Haeck the following

      day.


[7]   At some point after receiving the cash, Haeck would then return it to Miller

      with instructions to deliver the cash to the Marshall County Auditor’s office.

      Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017   Page 3 of 11
       Miller then counted the cash she received from Haeck, prepared a receipt, and

       delivered the cash to the County Auditor. The Auditor then deposited the cash

       into the Highway Department’s miscellaneous revenue account.


[8]    In late 2013, Marshall County Commissioner Deb Griewank (“Griewank”)

       learned of the process regarding the scrap metal and the cash received. She also

       became aware that there might be a discrepancy between the amount the

       Highway Department received from Lewis Salvage and the amount the

       Highway Department deposited with the Auditor. Griewank requested and

       received records from February 10, 2012, to December 10, 2013, from Lewis

       Salvage. These records indicated that Lewis Salvage had paid the Highway

       Department’s truck drivers a total of $15,504.98. The cash deposited with the

       County Auditor, however, amounted to only $3,153.57, a deficit of $12,351.41.


[9]    Upon discovering this discrepancy, Griewank met with Haeck to discuss the

       matter. Haeck appeared very nervous to Griewank, and he informed her that he

       could not account for the missing money. Although he did not admit to any

       wrongdoing, Haeck informed Griewank that he did not want his wife to know

       about the missing money because he feared she would leave him if she thought

       he stole the money.


[10]   Marshall County Attorney James Clevenger (“Clevenger”) was eventually

       informed of the matter and met with the County Commissioners to discuss the

       matter. Clevenger also met with Indiana State Police Detective Aaron Rypma

       (“Detective Rypma”), who began an investigation into the missing cash.


       Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017   Page 4 of 11
       Detective Rypma confirmed that there was a large discrepancy between the

       money that Lewis Salvage had reported giving to the Highway Department and

       the amount the Highway Department deposited with the Auditor.


[11]   On June 23, 2014, Detective Rypma interviewed Haeck for approximately one

       hour. During the interview, Rypma confronted Haeck with the records from

       Lewis Salvage showing that the Highway Department received much more

       money than it deposited with the Auditor. In fact, of all the transactions that

       occurred during the 2012–2013 period, only in seven cases did the amount

       reported by Lewis Salvage match the amount deposited with the Auditor by the

       Highway Department. Haeck denied wrongdoing and claimed never to have

       paid much attention to the dollar amounts received and deposited, claiming

       that this was Miller’s job. Haeck noted that several others could have also taken

       the cash but refused to point fingers because he claimed not to have any

       knowledge of who could have taken the cash or what had happened. Haeck

       claimed that he did not remember whether he opened the envelopes delivered

       to him but assumed he had done so, and again claimed not to remember much

       about the process and not to understand what had happened. The following

       exchange is typical of the interview:


               [Rypma]:         So you want to walk around with an elephant on
                                your chest carrying this with you, or do you want to
                                be straight and get it out in the open.
               [Haeck]:         I don’t know what happened. I don’t know what’s
                                going on.
               [Rypma]:         I know you took the money.

       Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017   Page 5 of 11
        [Haeck]:         I didn’t take nothing.
        [Rypma]:         Never once?
        [Haeck]:         (no response).
        [Rypma]:         See, you can’t answer that. You can’t tell me. That’s
                         one of the reasons why - -
        [Haeck]:         I said I didn’t take nothing.
        [Rypma]:         Never once?
        [Haeck]:         I’m kind of - - you’re making it tough to sit here. I’m
                         trying to sit here and have - - have - -
        [Rypma]:         Sometimes I have to make it tough to sit here. It’s
                         not easy to sit here and get accused of something
                         and hold onto it.
        [Haeck]:         Yeah. I’m getting accused.
        [Rypma]:         Yeah. You are and it’s because of what I dug up
                         and I gave you the opportunity to come in here and
                         be straight with me.
        [Haeck]:         I am being straight with you. But you - - I don’t
                         know what you want. Yeah. You want me to say I
                         did something I didn’t do.
        [Rypma]:         I want the truth. I can tell you’re not giving me the
                         truth. And I told you this was a voluntary
                         statement.
        [Haeck]:         You don’t want the truth. You just want me to say
                         it that I had some involvement in missing money.
                         That’s all you want me to say.
        [Rypma]:         Is that what you think?
        [Haeck]:         That’s what you’re saying.
        [Rypma]:         I’m telling you I want the truth, so I can tell the
                         prosecutor’s office that you cooperated with the
                         case.



Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017   Page 6 of 11
               [Haeck]:         Oh, I told you it was hard sitting here talking to
                                you. Do you not understand that? Me sitting here
                                trying to cooperate with this, but all I get is, hey,
                                Ne[i]l, you done it. You done it. I’ve got signatures.
                                And you didn’t follow up. Ne[i]l, how comes people
                                don’t follow up on things.
               [Rypma]:         Because you’re sitting here saying I don’t know.
               [Haeck]:         Well, I don’t remember what those amounts were
                                or what happened.
               [Rypma]:         I didn’t ask you to remember any amounts. I’m
                                asking you to tell me about the times you took the
                                money.
               [Haeck]:         I didn’t take no money.
               [Rypma]:         I’ll keep digging then and then just submit it. We’ll
                                leave it at that. It’s a voluntary statement. You can
                                leave. There’s no hard feelings. I would prefer to go
                                a different route, but I’ll keep digging.


       Tr. pp. 371-373.


[12]   On September 16, 2014, a grand jury indicted Haeck on one count of Class D

       felony theft. A two-day jury trial commenced on March 22, 2016. During the

       State’s case in chief, the State offered into evidence an unredacted copy of the

       video recording of Detective Rypma’s interview with Haeck. Haeck objected

       based on Evidence Rule 704(b) “to the extent that the officer is giving opinions

       that should ultimately go to the jury and an opinion as to the truthfulness of

       Mr. Haeck’s statements.” Tr. p. 320. Haeck also objected based on Evidence

       Rule 403 that the probative value of the evidence was outweighed by the danger

       of unfair prejudice. The trial court overruled the objection, but did admonish


       Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017   Page 7 of 11
       the jury not to consider the detective’s questions as evidence. Again, after the

       video recording was played to the jury, the trial court repeated this

       admonishment verbatim to the jury. At the conclusion of the trial, the jury

       found Haeck guilty as charged.


[13]   On June 1, 2016, the trial court sentenced Haeck to three years, with one year

       executed in community corrections and two years suspended to probation. The

       trial court also ordered Haeck to pay $12,000 restitution to Marshall County.

       Haeck now appeals.


                                      Discussion and Decision
[14]   When reviewing a claim of insufficient evidence to sustain a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Meehan v. State, 7 N.E.3d 255, 257 (Ind. 2014). It is the jury’s role, not

       ours, to assess witness credibility and weigh the evidence to determine whether

       it is sufficient to support a conviction. Id. We will affirm the conviction unless

       no reasonable fact-finder could have found the elements of the crime proven

       beyond a reasonable doubt. Id. It is therefore not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Id. A reasonable inference

       of guilt must be more than a mere suspicion, conjecture, conclusion, guess,

       opportunity, or scintilla. Id.


[15]   At the time of the acts underlying Haeck’s conviction, the statute defining the

       crime of theft provided:



       Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017   Page 8 of 11
                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 D felony.


       Ind. Code § 35-43-4-2(a).1 Of course, “[a] person engages in conduct

       ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to

       do so,” and “[a] person engages in conduct ‘knowingly,’ if, when he engages in

       the conduct, he is aware of a high probability that he is doing so.” Ind. Code §

       35-41-2-2(a), (b).


[16]   Here, the State presented evidence that Lewis Salvage recorded the transactions

       of its cashiers and had never had any problems with its cashiers stealing money.

       The State also presented evidence that the drivers who took the scrap to Lewis

       Salvage returned the cash payment to Haeck or Miller if Haeck was not in his

       office. If Miller received the cash, she gave it to Haeck when he returned. Haeck

       then later returned this cash to Miller, who deposited the cash with the Auditor.

       The State further demonstrated that the cash deposited with the Auditor was

       several thousand dollars less than that reported by Lewis Salvage to have been

       delivered to the drivers who had delivered the scrap. Miller and all of the

       drivers who testified stated that they did not take the cash. Haeck repeatedly

       told Detective Rypma that he did not know what had happened and did not

       understand “what was going on,” but he never admitted to taking the cash, and



       1
         This version of the theft statute was in effect from July 1, 2009 to July 1, 2014. See Ind. Pub. Law 158-2009
       § 8; Ind. Pub. Law 158-2013 § 463.

       Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017              Page 9 of 11
       in fact repeatedly denied it. Tr. p. 371-73. The most incriminating statement

       Haeck made was to Griewank when he told her that his wife would leave him if

       she thought he had taken the cash.


[17]   This evidence is suggestive of Hauck’s guilt, as he had the means and

       opportunity to take the cash. However, the State presented no evidence that

       Haeck used the cash, made any unexplained purchases, or explained at all how

       he spent the cash. Also, the opportunities for theft of the cash were numerous.

       Indeed, anyone in the chain of events from the cashier to the drivers to Miller to

       Haeck could have taken the cash given the lack of measures that were in place

       to keep track of the cash.


[18]   We do not consider Haeck’s response to Griewank regarding his wife to be

       conclusively incriminating. That Haeck was worried that his wife would leave

       him if she thought he took the money does not indicate that Haeck actually did

       take the money, nor is it unsurprising that Haeck did not want his spouse to

       know that he was being accused. Despite the State’s argument to the contrary,

       Haeck’s interview with Detective Rypma provides little support for Haeck’s

       conviction. Throughout the interview, he repeatedly and consistently denied

       taking the cash.


[19]   In sum, considering only the evidence that favors the jury’s verdict and the

       reasonable inferences that can be drawn therefrom, we conclude that no

       reasonable jury could conclude beyond a reasonable doubt that Haeck

       knowingly or intentionally exerted unauthorized control of the cash. Although


       Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017   Page 10 of 11
       the State presented evidence that Haeck had the opportunity to do so, it

       presented no evidence that Haeck ever actually exerted unauthorized control

       over the cash. Any inference of guilt created by Haeck’s opportunity and his

       nervousness remained mere speculation or conjecture, not evidence that meets

       the beyond a reasonable doubt standard that a jury must adhere to. Thus, the

       evidence is insufficient as a matter of law to support Haeck’s conviction.2


[20]   Reversed.


       Kirsch, J., and Altice, J., concur.




       2
         Because we reverse Haeck’s conviction for lack of evidence, we need not address his claim of evidentiary
       error.

       Court of Appeals of Indiana | Memorandum Decision 50A04-1606-CR-1503 | August 1, 2017           Page 11 of 11
