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:
                                                       Sep 15 2014, 10:02 am

FREDERICK VAIANA
Voyles Zahn & Paul
Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA
BRENDA BEECHER,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 49A05-1401-CR-27
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Bradley Keffer, Judge Pro-Tempore
                              Cause No. 49F09-1302-FD-993


                                       September 15, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Brenda Beecher appeals her two convictions of Class D felony theft.1 As the State

failed to demonstrate Beecher’s control over her mother’s property was “unauthorized,” we

must reverse.

                            FACTS AND PROCEDURAL HISTORY

          Beecher provided care for her ailing seventy-two-year-old mother until her mother

moved to a nursing home. On two occasions within the year after her mother’s move,

Beecher went to a pharmacy and picked up hydrocodone prescriptions in her mother’s name.

Each prescription contained 240 pills, and each time, Beecher kept thirty pills for her own

use and took 210 pills in a plastic bag to her mother at the nursing home.

          The State charged Beecher with two counts of Class D felony theft for taking

hydrocodone from her mother. The State’s only witness at Beecher’s trial was the

investigator from the Attorney General’s Medicaid Fraud Investigations Unit to whom

Beecher revealed she had kept thirty pills from each of her mother’s prescriptions. After the

State rested, Beecher moved to dismiss the charges. The court denied that motion. After

testimony from Beecher, the court found Beecher guilty of both theft counts.

                                  DISCUSSION AND DECISION

          When reviewing sufficiency of evidence, we neither reweigh evidence nor assess

witness credibility. Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). We look to the

evidence and reasonable inferences therefrom that support the verdict, and we affirm if there

is probative evidence from which a reasonable trier of fact could have found the defendant


1
    Ind. Code § 35-43-4-2 (West 2009).
                                              2
guilty beyond a reasonable doubt. Id.

       The State did not file a brief in response to Beecher’s request that we overturn her

convictions. When an appellee does not submit a brief, we need not undertake the burden of

developing its argument. State v. Necessary, 800 N.E.2d 667, 669 (Ind. Ct. App. 2003).

Rather, in this circumstance, we apply a less stringent standard of review with respect to

showings of reversible error, and thus we may reverse if an appellant establishes prima facie

error. Id. Prima facie error is defined as “at first sight, on first appearance, or on the face of

it.” Id.

       The State charged Beecher with Class D felony theft, which occurs when someone

“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.” Ind. Code § 35-43-4-2(a)

(West 2009). When she moved for involuntary dismissal of the charges during trial, Beecher

asserted the State had not proven her control over the pills was unauthorized – “that she

didn’t have permission to do that from her mother . . . .” (Tr. at 45.)

       The State argued at trial that Beecher’s control was unauthorized because

       the pills - - the prescription was for hydrocodone which is a prescription where
       you have to have a um, - - it is a medicine where you have to have a
       prescription. That prescription was for [Mother].
               [Mother] cannot allow someone else to even have that prescription. She
       can’t even give authorized control because you cannot -- then she would be
       committing a crime by giving um, medicines to someone without a prescription
       that was not for that person.
               Um, [Beecher] admitted that she kept the medicine for herself so the
       State believes that um, the Court should deny um, defendant’s motion . . . .

(Id. at 46-7.)

                                                3
       However, for the purposes of theft, our legislature provided:

       Under this chapter [Ind. Code ch. 35-43-4], a person’s control over property of
       another person is “unauthorized” if it is exerted:
       (1) without the other person’s consent;
       (2) in a manner or to an extent other than that to which the other person has
       consented;
       (3) by transferring or encumbering other property while failing to disclose a
       lien, adverse claim, or other legal impediment to the enjoyment of that other
       property;
       (4) by creating or confirming a false impression in the other person;
       (5) by failing to correct a false impression that the person knows is influencing
       the other person, if the person stands in a relationship of special trust to the
       other person;
       (6) by promising performance that the person knows will not be performed;
       (7) by expressing an intention to damage the property or impair the rights of
       any other person; or
       (8) by transferring or reproducing:
               (A) recorded sounds; or
               (B) a live performance;
       without consent of the owner of the master recording or the live performance,
       with intent to distribute the reproductions for a profit.

Ind. Code § 35-42-4-1 (West 2009). That Beecher’s mother should not have given the drugs

to Beecher is of no consequence, as that statute does not include her action in the definition

of “unauthorized” for purposes of the chapter that includes theft. See id.

       Because there was no evidence Beecher’s control of the hydrocodone was

unauthorized, the State did not prove Beecher committed Class D felony theft. See, e.g.,

Taylor v. State, 587 N.E.2d 1293, 1301 (Ind. 1992) (“the State must establish beyond a

reasonable doubt all of the necessary elements of the crime”), reh’g denied; and see Breining

v. Harkness, 872 N.E.2d 155, 159-60 (Ind. Ct. App. 2007) (where co-owner of bank account

transferred money to recipient, recipient’s control over money was “authorized” and could


                                              4
not support an allegation of theft), reh’g denied, trans. denied. Accordingly, we must reverse

her convictions.

       Reversed.

VAIDIK, C.J., and FRIEDLANDER, J. concur.




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