                                                                                    FILED
MEMORANDUM DECISION
                                                                               Apr 17 2018, 9:12 am

Pursuant to Ind. Appellate Rule 65(D), this                                         CLERK
                                                                                Indiana Supreme Court
Memorandum Decision shall not be regarded as                                       Court of Appeals
                                                                                     and Tax Court
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
Elizabeth A. Houdek                                    Curtis T. Hill, Jr.
Indianapolis, Indiana                                  Attorney General of Indiana
                                                       Caroline G. Templeton
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Melissa Anderson,                                          April 17, 2018

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1710-CR-2222

        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable James Osborn, Judge
                                                           Trial Court Cause No.
Appellee-Plaintiff
                                                           49G09-1604-F6-12926




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018              Page 1 of 5
                                          Case Summary
[1]   In April of 2016, Appellant-Defendant Melissa Anderson was stopped leaving a

      Wal-Mart after having scanned only forty-eight of the fifty-three items in her

      shopping cart. Surveillance video revealed that Anderson had handled two of

      the items before placing them in her cart un-scanned and that the other three

      items were in the same location as another item that had removed, scanned,

      and returned to the cart. The State charged Anderson with Level 6 felony theft

      with a prior conviction, she was found guilty as charged, and the trial court

      sentenced her to 545 days of incarceration with all but eight suspended.

      Anderson contends that the State produced insufficient evidence to sustain a

      finding that she had the intent to commit theft. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On April 5, 2016, Anderson went to an Indianapolis Wal-Mart with her two

      young children. Anderson drew the attention of Sarah Hill, the store’s asset

      protection manager, because of the large number of items that she had with her

      in the self-checkout line. As she watched surveillance video, Hill noticed a

      confrontation between Anderson and the attendant, seemingly because the

      attendant had asked Anderson to move to an attended checkout lane according

      to store policy. Because Anderson was argumentative and had so many items,

      Hill continued to watch her.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018   Page 2 of 5
[3]   Anderson scanned a box of French toast sticks and put that box as well as a box

      of toaster strudels on the scale; the box of toaster strudels ended up in

      Anderson’s cart un-scanned. Anderson lifted a bag of dog food from the

      ground and placed it into her cart without scanning it. Anderson scanned a

      case of Dr. Pepper that was taken from beneath the basket of her cart and

      returned it to that location after scanning, but did not scan the other cases of

      soda or a bag of potatoes that were in the same location. Anderson passed all

      points of sale without paying for the bag of dog food, bag of potatoes, case of

      Mountain Dew, case of Pepsi, and box of toaster strudels that were in her cart.

      The total value of those items was $30.41. It was determined that Anderson

      had paid for only forty-eight of the fifty-three items that were in her cart.


[4]   On April 6, 2016, the State charged Anderson with Level 6 felony theft.                    On

      July 19, 2017, a jury found Anderson guilty of Class A misdemeanor theft. The

      court found that Anderson had a prior conviction for theft and so entered

      judgment of conviction as Level 6 felony. On August 31, 2017, the trial court

      sentenced Anderson to 545 days of incarceration and suspended all but eight

      days, which Anderson had already served.


                                 Discussion and Decision
[5]   Anderson contends that the State failed to produce sufficient evidence to sustain

      her theft conviction. When reviewing the sufficiency of the evidence, we

      neither weigh the evidence nor resolve questions of credibility. Jordan v. State,

      656 N.E.2d 816, 817 (Ind. 1995). We look only to the evidence of probative


      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018   Page 3 of 5
      value and the reasonable inferences to be drawn therefrom which support the

      verdict. Id. If from that viewpoint there is evidence of probative value from

      which a reasonable trier of fact could conclude that the defendant was guilty

      beyond a reasonable doubt, we will affirm the conviction. Spangler v. State, 607

      N.E.2d 720, 724 (Ind. 1993).


[6]   To sustain Anderson’s theft conviction, the State was required to establish that

      she “knowingly or intentionally exert[ed] unauthorized control over the

      property of another person, with intent to deprive the other person of any part

      of its value or use.” Ind. Code § 35-43-4-2. Anderson does not dispute that she

      left the checkout without paying for five items in her cart but argues that the

      State failed to present sufficient evidence to permit the inference that she

      knowingly or intentionally committed theft. Intent may be proven by

      circumstantial evidence. McCaskill v. State, 3 N.E.3d 1047, 1050 (Ind. Ct. App.

      2016). A defendant’s intent can be inferred from his or her conduct and the

      natural and usual sequence to which such conduct logically and reasonably

      points. Id. With respect to a conviction that rests at least partially on

      circumstantial evidence, this Court will only reverse when it can be said that as

      a matter of law that reasonable persons could not form inferences with regard to

      each material element of the offense. Id.


[7]   The State produced sufficient evidence to sustain a finding that Anderson

      intended to commit theft. Anderson resisted to point of confrontation when she

      was asked to go to an attended register pursuant to a store policy specifically

      designed to prevent theft, giving rise to an inference that that is precisely why

      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018   Page 4 of 5
      she resisted. At least two of the items at issue, the bag of dog food and the box

      of toaster strudels, were handled by Anderson and placed in her cart without

      being scanned. Moreover, Anderson removed a case of Dr. Pepper from the

      basket of her shopping cart, scanned it, and returned it to the same location

      without scanning the three other items that were also under the basket. Under

      the circumstances, the jury was entitled to conclude that Anderson did not

      accidentally fail to scan the two items that she handled at the register and that

      she did not actually fail to notice the three items underneath the basket of her

      cart. It is worth noting that most of the items Anderson brought to the register

      were, in fact, scanned, indicating a familiarity with the self-checkout process.

      Moreover, a case of Dr. Pepper from the same location as three of the un-

      scanned items was removed, scanned, and returned, undercutting any

      suggestion that the three items were simply overlooked. Anderson’s argument

      is nothing more than an invitation to reweigh the evidence, which we will not

      do. We conclude that the State produced sufficient evidence to sustain

      Anderson’s conviction for Level 6 felony theft.


[8]   The judgment of the trial court is affirmed.


      Baker, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1710-CR-2222 | April 17, 2018   Page 5 of 5
