MEMORANDUM DECISION
                                                                      Apr 21 2015, 8:10 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
Jill M. Acklin                                            Gregory F. Zoeller
McGrath, LLC                                              Attorney General of Indiana
Carmel, Indiana
                                                          Brian Reitz
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Mary Stephens,                                           April 21, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A04-1409-CR-453
        v.                                               Appeal from the Hamilton Superior
                                                         Court
State of Indiana,                                        The Honorable J. Richard Campbell,
Appellee-Plaintiff                                       Judge

                                                         Cause No. 29D04-1310-FD-8683




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-453| April 21, 2015          Page 1 of 6
                                       Statement of the Case

[1]   Mary Stephens appeals her conviction for theft, as a Class D felony, following a

      bench trial. Stephens raises one issue on appeal, namely, whether the State

      presented sufficient evidence to support her conviction. We affirm.


                                 Facts and Procedural History

[2]   On October 19, 2013, Stephens was working as a member of a probation work

      crew clearing brush and trees from a Hamilton County park. Probation Officers

      C.J. Miller and Breanne Lewis were supervising the work crew. At the end of

      the day, Officer Lewis and a probationer took the final load of cleared brush to

      an off-site “burn pile,” and Officer Miller waited with the other nine

      probationers in the work group, including Stephens, who sat in and around a

      fifteen-passenger community corrections van.


[3]   After a probationer informed him that Stephens had taken items from Officer

      Lewis’ purse, Officer Miller approached the van and saw Stephens putting

      things into the purse, which Officer Lewis had left beneath the front seat of the

      van. Stephens attempted to zip the purse shut and shove it under the seat in

      front of her and, when confronted, told Officer Miller that the purse had fallen

      down and that some items had fallen out of it.


[4]   When Officer Lewis returned, Officer Miller described what had happened and

      suggested that they search Stephens. Officer Lewis looked around Stephens in

      the van to see if she had anything of hers, and Officer Lewis asked Stephens to

      Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-453| April 21, 2015   Page 2 of 6
      take off a sweatshirt that she was wearing. Officer Lewis then took Stephens to

      a women’s restroom at the park to search Stephens. Stephens brought the

      sweatshirt with her. In the restroom, Stephens dropped the sweatshirt on the

      floor. When Stephens bent to pick it up, Officer Lewis noticed a clutch

      belonging to Officer Lewis on the ground beneath the sweatshirt. Officer Lewis

      then searched Stephens and found a bottle of prescription medication, which

      also belonged to Officer Lewis and had been in the clutch.


[5]   Stephens apologized and asked the officers not to call police, but they called

      Cicero Police Department Officer Kyle Comer to the scene. When Officer

      Comer asked Stephens why she had Officer Lewis’ prescription bottle, Stephens

      said that she had noticed that it had fallen out of Officer Lewis’ purse and she

      had attempted to put the bottle back in the purse. Stephens explained that she

      panicked when confronted by Officer Miller and hid the bottle instead of

      returning it to the purse.


[6]   The State initially charged Stephens with possession of a controlled substance

      and theft, both as Class D felonies. However, the State dropped the possession

      charge and amended the theft charge to read: “On or about October 19, 2013,

      Mary Kathryn Stephens did knowingly exert unauthorized control over the

      property of Breanne Lewis, to-wit, [a] purse, with the intent to deprive said

      person of any part of the use or value of the property.” Appellant’s App. at 27.


[7]   Following a bench trial, the trial court found Stephens guilty as charged and

      sentenced her to 730 days, with ninety days executed in the Hamilton County


      Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-453| April 21, 2015   Page 3 of 6
      Jail, 275 days executed on home monitoring, and 365 days suspended. This

      appeal ensued.


                                     Discussion and Decision

[8]   Stephens contends that the State presented insufficient evidence to support her

      conviction. Our supreme court has held that when there is substantial evidence

      of probative value to support a conviction, it will not be set aside. Jones v. State,

      783 N.E.2d 1132, 1139 (Ind. 2003). When reviewing the sufficiency of the

      evidence to support a conviction, we must consider only the probative evidence

      and reasonable inferences supporting the conviction. See Dallaly v. State, 916

      N.E.2d 945, 950 (Ind. Ct. App. 2009). We do not assess witness credibility or

      reweigh the evidence. Id. We consider conflicting evidence most favorably to

      the trial court’s ruling. Id. We affirm the conviction unless “no reasonable fact

      finder could find the elements of the crime proven beyond a reasonable doubt.”

      Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not

      necessary that the evidence overcome every reasonable hypothesis of

      innocence. Id. Rather, the evidence is sufficient if an inference may reasonably

      be drawn from it to support the conviction. Id.


[9]   To prove theft, as a Class D felony, the State was required to show that

      Stephens knowingly exerted unauthorized control over Probation Officer

      Lewis’ purse with the intent to deprive Officer Lewis of any part of the use or

      value thereof. Stephens’ sole contention on appeal is that the State’s

      presentation of evidence misled the trial court regarding whether she was

      Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-453| April 21, 2015   Page 4 of 6
       charged with having stolen a purse or a clutch, or smaller purse, contained

       within a larger purse.1 In particular, Stephens maintains that the State charged

       her with theft of a purse, not items kept in the purse. And, she asserts, because

       there was no evidence that she stole a purse, her conviction cannot stand.


[10]   In support of her contention, Stephens directs us to the following colloquy

       during cross-examination of Officer Comer:


               Defense Counsel: Do you know, [sic] personal knowledge, whether
               anything was stolen out of the clutch?

               Deputy Prosecuting Attorney: Objection. Relevance. The charging
               information and the charge here is that she took the purse[,] not items
               from inside the purse. It specifically says the purse.

               Defense Counsel: I think it says property, Judge, on the amended
               information.

               Deputy Prosecutor: It says, to wit, purse[,] not items inside.

               The Court: So the State is just charging theft of the purse?

               Deputy Prosecutor: That’s right.

               The Court: Sustain the objection.

       Tr. at 30.


[11]   But Officer Comer then explained that one of the items Stephens had stolen

       from inside the bigger purse was a clutch. And Officer Comer described a




       1
         We note that Stephens makes no contention that her conviction cannot stand because of a fatal variance
       between the charging information and the proof at trial. See, e.g., Mitchem v. State, 685 N.E.2d 671 (Ind.
       1997).

       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-CR-453| April 21, 2015               Page 5 of 6
       clutch as “a smaller purse or wallet that you would put inside your purse.” Id.

       at 33.


[12]   A clutch is a purse. The evidence shows that Stephens stole Officer Lewis’

       clutch. The State charged Stephens with theft of a purse. At Stephens’ bench

       trial the trial court, as trier of fact, found her guilty beyond a reasonable doubt,

       and we are confident that the court was not confused.


[13]   Thus, the State presented evidence that Stephens stole a purse from Officer

       Lewis, and the evidence clearly supports the conviction. Stephens’ contentions

       on appeal amount to a request that we reweigh evidence previously evaluated

       by the trial court, which we will not do. The State presented sufficient evidence

       to support Stephens’ theft conviction.


       Affirmed.

       Mathias, J., and Bradford, J., concur.




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