Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                         Oct 02 2014, 8:45 am
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:

DORI NEWMAN                                      GREGORY F. ZOELLER
Newman & Newman PC                               Attorney General of Indiana
Noblesville, Indiana
                                                 JODI KATHRYN STEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

NANETTE ZAWADZKI,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 29A04-1402-CR-91
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                            The Honorable Gail Bardach, Judge
                             Cause No. 29D06-1302-FD-1546


                                      October 2, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, Nanette Zawadzki (Zawadzki), appeals her conviction for

theft, a Class D felony, Ind. Code § 35-43-4-2(a) (2009).

       We affirm.

                                         ISSUE

       Zawadzki raises one issue on appeal which we restate as follows: Whether the State

presented sufficient evidence beyond a reasonable doubt to sustain her conviction.

                       FACTS AND PROCEDURAL HISTORY

       On February 17, 2013, Zawadzki, empty handed and accompanied by her eleven-

year-old daughter, went to the Kohl’s Department Store in Westfield, Indiana. Zawadzki

strolled around empty handed in the Kohl’s store for about seven or eight minutes before

entering the housewares department. Shortly thereafter, Zawadzki exited the housewares

department carrying a box containing a memory foam mattress valued at $429.99. She

then walked to the customer service line where she waited with a clearance curtain rod and

the memory foam mattress. Lori Fraley (Fraley), Kohl’s assistant manager, assisted

Zawadzki with the purchase of the curtain rod. Fraley asked Zawadzki if she was returning

the memory foam mattress, to which Zawadzki responded, “No. I purchased it at the

Noblesville store.” (Transcript. p. 155). Zawadzki also told Fraley that she wanted to do

an “even exchange” for a memory foam mattress in another size, but the store did not have

it. (Tr. p. 154). Based on her response, Fraley offered to look for it in the Kohl’s system


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because, at times, the store would keep some items stocked in the back. Fraley also asked

Zawadzki if she had the receipt for the memory foam mattress. According to Fraley,

Zawadzki was startled by the questions and appeared nervous. In response, Zawadzki told

Fraley that she did not have the receipt and that she only wanted to do an even exchange

of the memory foam mattress.

           Based on the training she had with customers returning large priced items without

receipts, coupled with Zawadzki’s nervous demeanor, Fraley called the loss prevention

department to investigate as to whether Zawadzki brought any merchandise with her into

the store. Megan Van Nessa (Van Nessa), Kohl’s loss prevention supervisor, reviewed the

surveillance video.1 Starting from the parking lot, the footage revealed an empty handed

Zawadzki entering the store at approximately 4:38 p.m., walking around the store for

several minutes, and emerging from the housewares department with a curtain rod and a

memory foam mattress. Van Nessa also observed that Zawadzki did not leave or re-enter

the store before checking out with Fraley at the customer service desk.

           In spite of what she had seen, Van Nessa told Fraley to allow Zawadzki to exit the

store. Kohl’s policy is that once a customer exits through the first set of doors with unpaid

merchandise, the customers is presumed to have stolen the items. Zawadzki walked to the

exit and as she was just past the first set of doors, Van Nessa approached Zawadzki and

explained to her that she was with the Kohl’s loss prevention department, and asked

Zawadzki to accompany her to the back office for questioning. At the loss prevention


1
    The Surveillance video is not part of the record, but was presented at trial.

                                                             3
office, Zawadzki repeatedly informed Van Nessa that she had bought the memory foam

mattress from the Kohl’s store in Noblesville and that she needed to make an even

exchange. When Van Nessa threatened to call the police, Zawadzki started saying that she

was sorry, however, Van Nessa had already called the police.

        When the officers arrived, Zawadzki was crying and acting very erratic. Van Nessa

showed the officers the Kohl’s surveillance video which captured Zawadzki entering the

store empty handed, entering the housewares department and exiting with a curtain rod and

the memory foam mattress. Faced with overwhelming evidence, Zawadzki confessed to

the officers that she had tried to leave with the memory foam mattress, and she had not

paid for it. Because Zawadzki was with her minor child, the officers allowed Zawadzki to

take her daughter home but they wrote her a summons.

        On February 26, 2013, the State filed an Information, charging Zawadzki with

Count I, theft, a Class D felony, I.C. § 35-43-4-2(a) (2009); and Count II, criminal

tresspass, a Class A misdemenor, I.C. § 35-43-2-2(a)(1) (2009)2. On January 14, 2014, in

open court, Zawadzki pled guilty to the criminal trespass charge. The same day, the trial

court held a guilty plea hearing at which Zawadzki pled guilty to the criminal trespass

charge and admitted the factual basis for her plea. In the end, the trial court accepted her

guilty plea and scheduled her sentencing hearing for February 7, 2014. Still on the same

day, the trial court held a jury trial for the theft charge. At the close of the evidence, the


2
  Zawadzki’s criminal trespass charge originates from a no trespass agreement, which she signed on May 6, 2011.
On that day, Zawadzki had stolen a bra from a Kohl’s store. The store required her to sign a no trespass agreement,
which prohibited her from entering a Kohl’s store. On February 17, 2013, Zawadzki violated the Kohl’s no trespass
agreement by entering the Kohl’s store in Westfield.

                                                         4
jury found Zawadzki guilty as charged. On February 7, 2014, the trial court sentenced

Zawadzki to 730 days, with 670 days, suspended on Count I in the Indiana Department of

Correction. As for Count II, the trial court sentenced Zawadzki to 365 days, all suspended,

in the Hamilton County Jail.

       Zawadzki now appeals. Additional facts will be provided as necessary.

                               DISCUSSION AND DECISION

       Zawadzki argues that there is insufficient evidence to support the theft conviction.

Our standard of review for sufficiency of the evidence cases is well established. We will

not reweigh evidence or judge the credibility of witnesses, and we construe any conflicting

evidence in favor of the verdict. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). The

jury, as the trier of fact, is charged with deciding whether the evidence has sufficiently

proven “each element of an offense.” Id. So long as there is “substantial evidence of

probative value supporting each element of the crime from which a reasonable trier of fact

could have found the defendant guilty beyond a reasonable doubt[,]” we will affirm the

conviction. Id.

       In order to obtain a conviction of theft in this case, the State must have established

beyond a reasonable doubt that (1) Zawadzki (2) knowingly or intentionally (3) exerted

unauthorized control over (4) property (5) of Kohl’s (6) with the intent to deprive Kohl’s

of any part of its value or use. See I. C. § 35-43-4-2(a). “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.” I.C. § 35-41-2-2(b). “A person engages in conduct ‘intentionally’ if, when
                                             5
he engages in the conduct, it is his conscious objective to do so.” I.C. § 35-41-2-2(a). To

“exert control over property” means to “obtain, take, carry, drive, lead away, conceal,

abandon, sell, convey, encumber, or possess property.” I.C. § 35-43-4-1(a). A person’s

control over the property of another person is “unauthorized” if it is exerted without the

other person’s consent. See I.C. § 35-43-4-l(b)(l).

       Zawadzki first argues that the State failed to prove any elements of the charged

offense. We disagree. As for the first element, at trial, all of the State’s witnesses—Fraley,

Van Nessa, and the officer—unequivocally identified Zawadzki. In proving that Zawadzki

had knowingly or intentionally exerted unauthorized control over Kohl’s merchandise,

with the intent to deprive Kohl’s of any part of its value or use, the State presented the

following evidence:     On February 17, 2013, Zawadzki went to the Kohl’s store in

Westfield. Zawadzki was empty handed when she entered the Kohl’s store. She walked

around the store for about seven to eight minutes before entering the housewares

department. Shortly thereafter, she exited the department carrying a curtain rod and a

memory foam mattress. At trial, Fraley testified that Zawadzki appeared nervous when

she asked her if she had the receipt. Van Nessa also testified that although the surveillance

video had problems, she was able to track Zawadzki’s movements in the store, and she

confirmed that Zawadzki entered the store empty handed. In spite of the fact that Zawadzki

had shoplifted the memory foam mattress, Van Nessa and Fraley allowed Zawadzki to exit

the store with it. Once Zawadzki was past the first set of doors, and past all the cashier

registers located in the vestibule area, Van Ness approached Zawadzki and asked her to


                                              6
accompany her to the back office. Upon questioning Zawadzki, and after Van Ness

threatened to call the police, Zawadzki apologized for her actions. Also, when officers

viewed the surveillance video, it confirmed that Zawadzki had stolen the memory foam

mattress. In addition, Zawadzki confessed to the officers that she had taken the memory

foam mattress and had not paid for it.

       On considering all of this evidence, the jury determined that the evidence was

sufficient to show that the Zawadzki knowingly or intentionally exerted unauthorized

control over the property of Kohl’s by taking the memory foam mattress without Kohl’s

consent, thus satisfying the statutory requirements for theft. Zawadzki’s version that she

was by the exit door and had not fully exited the store, or that she did not have the intention

of exerting unauthorized control over the memory foam mattress is an invitation for this

court to reweigh the evidence and assess the credibility of the witnesses, which we decline

to do. See Wright, 828 N.E.2d at 906. In conclusion, we find that the State presented

sufficient evidence to sustain Zawadzki’s conviction for theft.

                                           CONCLUSION

       Based on the foregoing, we conclude that the State presented sufficient evidence to

support Zawadzki’s conviction for theft.

       Affirmed.

MATHIAS, J. and CRONE, J. concur




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