      MEMORANDUM DECISION
                                                                                Feb 03 2015, 8:18 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Steven E. Ripstra                                             Gregory F. Zoeller
      Ripstra Law Office                                            Attorney General of Indiana
      Jasper, Indiana
                                                                    Jodi Kathryn Stein
                                                                    Deputy Attorney General
                                                                    Indianapolis, Indiana



                                                    IN THE
           COURT OF APPEALS OF INDIANA

      Mark A. Kimmel,                                               February 3, 2015

      Appellant-Defendant,                                          Court of Appeals Cause No.
                                                                    51A05-1407-CR-351
               v.                                                   Appeal from the Martin Circuit
                                                                    Court
                                                                    Honorable Lynne El. Ellis, Judge
      State of Indiana,                                             Cause No. 51C01-1101-FD-003
      Appellee-Plaintiff




      Friedlander, Judge.

[1]   Mark A. Kimmel (Kimmel) appeals his conviction of Theft,1 a class D felony,

      presenting the following restated issues for review:


      1
        The version of the governing statute, i.e., Ind. Code Ann. § 35-43-4-2(a) (West, Westlaw 2013), in effect at
      the time this offense was committed classified it as a class D felony. This statute has since been revised and

      Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015               Page 1 of 8
               1.       Must the conviction be reversed because there was a fatal
                        variance between the allegations in the charging information and
                        the evidence adduced at trial?

               2.       Was the evidence sufficient to support the judgment?

[2]   We affirm.

[3]   The facts favorable to the conviction are that brothers Tom and Jeff Kimmel

      owned and operated Indian Creek Stone Products (Indian Creek), which sold

      dimensional stone, sandstone, and veneer to individuals and contractors. The

      company’s sole purpose was to quarry and sell stone. It had a long-standing

      policy not to compete with its contractor customers and thus did not engage in

      installation work. Kimmel, who was the cousin of Tom and Jeff, worked as

      Indian Creek’s sales manager. Before he was employed by Indian Creek and

      several times during his employment, Kimmel was told by Tom that he

      (Kimmel) was not permitted to engage in any installation work with Indian

      Creek’s stone, although Kimmel repeatedly expressed an interest in doing such

      work.

[4]   In 2007, Tom received a call from Jim Sherman, who owned a residence in

      Bloomington, Indiana. Sherman was upset because he claimed Indian Creek

      had done a poor job of the stone installation on the exterior of his residence.

      Tom drove to the residence and inspected the installation. He recognized the

      stone as having come from Indian Creek’s quarry and described the installation


      in its current form reclassifies this as a Level 6 felony. See I.C. § 35-43-4-2(a)(1)(A) (West, Westlaw current
      with all 2014 Public Laws of the Second Regular Session and Second Regular Technical Session of the 118th
      General Assembly). The new classification, however, applies only to offenses committed on or after July 1,
      2014. See id. Because this offense was committed before this date, it retains the former classification.

      Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015                Page 2 of 8
      job as follows: “Mortar smeared all [sic], it looked like monkeys had laid it.

      There was mortal [sic] all over all of the windows. Uh, we walked around the

      house, uh, it was, it was the worse [sic] mess that I have ever seen in my life.”

      Transcript at 90-91. Tom informed Sherman that Indian Creek did not do

      installation work, but Sherman insisted that Indian Creek had indeed done the

      installation. At that point, Tom suspected that Kimmel was involved in the

      substandard installation.


[5]   Several days later, Tom confronted Kimmel about the situation, and Kimmel

      denied knowing anything about it. When Tom informed Kimmel that he had

      been to the Sherman residence, however, Kimmel confessed to knowledge

      about the installation. Kimmel admitted he had been partially paid for doing

      the installation and claimed that he planned to pay Indian Creek for the stone.

      Tom asked where the money was and Kimmel admitted that he had spent it.

      Kimmel was then fired. Later, office manager Staci Kimmel found invoices for

      the Sherman installation on Kimmel’s desk, in his handwriting. She also found

      a notebook entry in which Kimmel essentially admitted stealing from Indian

      Creek. Further investigation revealed that Kimmel had intercepted the delivery

      invoice from driver Kevin Elliott before the paperwork was delivered to the

      office. This was contrary to normal business practices. Kimmel never paid

      Indian Creek for the stone he had removed from the yard and used for the

      Sherman installation.

[6]   In January 2011, the State charged Kimmel with class D felony theft and the

      matter proceeded to trial in June 2014. A jury found Kimmel guilty as charged

      Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015   Page 3 of 8
      and the trial court sentenced him to two years, with one year executed and one

      year suspended to probation. Kimmel was also ordered to pay restitution.

                                                        1.


[7]   Kimmel first argues that his conviction must be reversed because there was a

      fatal variance between the charging information and the evidence adduced at

      trial. Specifically, he notes that the State had evidence of the specific dates of

      this offense but did not present it. Moreover, the charging information alleged

      that the crime occurred over a thirty-month period (“between June 1, 2007 and

      December 14, 2009”), Appellant’s Appendix at 12, whereas the State’s proof

      showed only that the acts occurred sometime in 2007.

[8]   “A variance is an essential difference between proof and pleading.” Neff v. State,

      915 N.E.2d 1026, 1031-32 (Ind. Ct. App. 2009), adhered to on reh’g, 922 N.E.2d

      44 (2010) (quoting Reinhardt v. State, 881 N.E.2d 15, 17 (Ind. Ct. App. 2008)),

      trans denied. A variance is deemed fatal if the defendant is misled by the charge

      in the preparation and maintenance of his defense and he was harmed or

      prejudiced as a result. Neff v. State, 915 N.E.2d 1026. Generally, failure to

      make a specific objection at trial waives the issue of a material variance issue.

      Id. At trial, Kimmel did not object to the State’s evidence on this basis.

      Therefore, the issue is waived.

[9]   Even if it were not waived, however, Kimmel would not be entitled to reversal.

      When time is not an element of a crime, or of the essence of the offense, the

      State is required to prove only that the offense occurred any time within the

      Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015   Page 4 of 8
       statutory period of limitations. Id., see also Ind. Code Ann. § 35-34-1-2(a)(5)

       (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular

       Session and Second Regular Technical Session of the 118th General Assembly)

       (a charging information must state “the date of the offense with sufficient

       particularity to show that the offense was committed within the period of

       limitations applicable to that offense”). Pursuant to Ind. Code Ann. § 35-41-4-

       2(a)(1) (West, Westlaw current with all 2014 Public Laws of the 2014 Second

       Regular Session and Second Regular Technical Session of the 118th General

       Assembly), the statute of limitations for a class D felony is five years after the

       commission of the offense. The evidence showed that this incident occurred in

       2007. The charging information was filed in January 2011. Therefore, the

       information was filed within the five-year limitations period.


[10]   Moreover, we discern no fatal variance between the offenses alleged in the

       charging instrument and the proof presented at trial. The charging instrument

       alleged that Kimmel exerted unauthorized control over Indian Creek products

       between June 1, 2007 and December 14, 2009. The probable cause affidavit

       provided to Kimmel during discovery reflected that the Sherman incident was

       the only incident alleged during that time. Kimmel makes no claim that he is

       vulnerable to the risk of being prosecuted for the same conduct as a result of the

       alleged fatal variance. Therefore, Kimmel has failed to establish either element

       of the Neff test required to establish a fatal variance.


                                                         2.



       Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015   Page 5 of 8
[11]   Kimmel contends the evidence was not sufficient to support his conviction. He

       argues that (1) the sale of stone to Sherman was not unauthorized, and (2) he

       intended to pay Indian Creek for the stone and therefore did not intend to

       deprive Indian Creek of the stone’s value and use. In order to establish the

       offense of theft as a class D felony as charged, the State was required to prove

       that Kimmel knowingly or intentionally exerted unauthorized control over

       Indian Creek property, with the intent to deprive Indian Creek of any part of its

       value or use. I.C. § 35-43-4-2(a). When reviewing the sufficiency of the

       evidence needed to support a criminal conviction, we neither reweigh evidence

       nor judge witness credibility. Thang v. State, 10 N.E.3d 1256 (Ind. 2014). We

       consider only “the evidence supporting the judgment and any reasonable

       inferences that can be drawn from such evidence.” Id. at 1258 (quoting Henley

       v. State, 881 N.E.2d 639, 652 (Ind. 2008)). We will affirm a conviction “if there

       is substantial evidence of probative value supporting each element of the offense

       such that a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.” Id. A verdict of guilt may be based upon an

       inference that is reasonably drawn from the evidence. All inferences are viewed

       in a light most favorable to the conviction. Bailey v. State, 979 N.E.2d 133 (Ind.

       2012).


[12]   We begin with Kimmel’s argument that the sale of stone to Sherman was not

       unauthorized. It is true, as Kimmel points out, that he was authorized as sales

       manager to sell the company’s product to customers such as Sherman. The

       State presented evidence, however, that in this particular case Sherman paid


       Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015   Page 6 of 8
       Kimmel personally for the stone that Sherman purchased but Kimmel did not

       turn that money over to Indian Creek. The evidence indicated that Kimmel

       was not authorized to accept payment for stone and keep such payment for

       himself. Such activity, i.e., accepting payment for Indian Creek’s product and

       using the money himself, was not authorized by Indian Creek’s owner, Tom

       Kimmel. Thus, Kimmel intentionally exerted unauthorized control over Indian

       Creek’s property.

[13]   Kimmel’s second argument is that he did not intend to deprive Indian Creek of

       any part of the value of its property because he intended to pay Indian Creek for

       the stone that he sold to Sherman. Intent is a mental function. Therefore,

       absent a confession, it often must be proven by circumstantial evidence. See

       Ritchie v. State, 809 N.E.2d 258 (Ind. 2004), cert. denied, 546 U.S. 828 (2005).

       The fact-finder is entitled to infer intent “from a defendant’s conduct and the

       natural and usual sequence to which such conduct logically and reasonably

       points.” Hightower v. State, 866 N.E.2d 356, 368 (Ind. Ct. App. 2007) (quoting

       E.H. v. State, 764 N.E.2d 681, 683 (Ind. Ct. App. 2002), trans. denied), trans.

       denied. We first observe that the trial court was not required to believe

       Kimmel’s claim that he intended to reimburse Indian Creek. See Edgecomb v.

       State, 673 N.E.2d 1185 (Ind. 1985). Indeed, Kimmel’s actions in this

       transaction were consistent with the view that he did not intend to pay Indian

       Creek. He uncharacteristically intercepted the delivery driver and delivery

       paperwork such that the relevant Indian Creek personnel were not aware of the

       transaction. After receiving payment for the stone from Sherman, Kimmel took


       Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015   Page 7 of 8
       that money and spent it on other things. As of the time of the filing of the

       charging information approximately four years later, Kimmel had yet to repay

       Indian Creek for the stone. The evidence was sufficient to prove the elements

       of theft.

[14]   Judgment affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 51A05-1407-CR-351 |February 3, 2015   Page 8 of 8
