                                                                                    FILED
                                                                               Dec 18 2017, 11:01 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                        Curtis T. Hill, Jr.
Oldenburg, Indiana                                        Attorney General of Indiana

                                                          Angela N. Sanchez
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tony McMiller,                                            December 18, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1706-CR-1192
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Linda Brown,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          49G10-1612-CM-47917



May, Judge.




Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017                            Page 1 of 9
[1]   Tony McMiller appeals his convictions for Class A misdemeanor theft 1 and

      Class B misdemeanor disorderly conduct. 2 He argues the State did not present

      sufficient evidence to prove he committed Class A misdemeanor theft because it

      did not prove he had the intent to deprive Scotty’s Brewhouse of the value of

      the food and drink he consumed. He argues the State did not present sufficient

      evidence to prove he committed Class B misdemeanor disorderly conduct

      because it did not prove he was so unreasonably loud as to disturb others in the

      restaurant. We reverse in part and affirm in part.



                                Facts and Procedural History
[2]   On December 13, 2016, McMiller and Karri 3 Garcia spent the day together,

      purchasing multiple items with Garcia’s husband’s credit card. McMiller and

      Garcia went to Scotty’s Brewhouse, ordered food and drink, and ate the food

      and drink they ordered. When the bill was presented, Garcia tried to pay with

      her husband’s credit card, but it was declined. The manager of the restaurant

      was called to the table and learned McMiller and Garcia could not pay the bill.

      The manager called the police.




      1
          Ind. Code § 35-43-4-2(a) (2014).
      2
          Ind. Code § 35-45-1-3(a)(2) (2014).
      3
       The briefs and the transcript spell Garcia’s name differently, but the charging information spells her name
      as indicated in this opinion.

      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017                       Page 2 of 9
[3]   Officer Justin Musser arrived at the scene and Officer Christopher Pickerrell

      arrived shortly thereafter. After learning Garcia’s credit card had been

      declined, Officer Musser asked McMiller if he was going to pay the bill, and

      McMiller offered his SSI debit card, which was also declined. McMiller said he

      called his sister and she told him she would come to the restaurant and pay the

      bill after she got off work. She did not do so. Garcia and McMiller attempted

      to get other restaurant patrons to pay their bill, but no one would pay it.


[4]   After approximately one hour, Officers placed McMiller and Garcia under

      arrest. Because it was cold outside, Officer Musser sat McMiller on a bench

      inside the restaurant while he waited for the wagon to arrive to transport

      McMiller to the Marion County Jail.


[5]   McMiller was “talking loudly, upset obviously because he was going to jail.”

      (Tr. at 28.) He also started “bothering the patrons that were sitting in the booth

      behind them trying to get them to engage in conversation and pay for his bill.”

      (Id.) Officer Musser asked him to stop bothering the people in the booth, but

      McMiller persisted.


[6]   The State charged McMiller with Class A misdemeanor theft, Class A

      misdemeanor resisting law enforcement, 4 and Class B misdemeanor disorderly

      conduct. On May 9, 2017, the trial court held a bench trial. At the end of the

      bench trial, the trial court found McMiller guilty of Class A misdemeanor theft



      4
          Ind. Code § 35-44.1-3-1(a)(1) (2016).


      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017   Page 3 of 9
      and Class B misdemeanor disorderly conduct. The trial court sentenced

      McMiller to concurrent sentences of 365 days, with 315 days suspended to

      unsupervised probation, for theft and 180 days, with 130 days suspended to

      unsupervised probation, for disorderly conduct.



                                 Discussion and Decision
[7]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference may reasonably be drawn from it to support the verdict. Id. at

      147.


                                      I. Class A Misdemeanor Theft

[8]   “A person who 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, commits theft, a Class A misdemeanor.” Ind. Code § 35-43-

      4-2(a) (2014). “A person engages in conduct ‘intentionally’ if, when he engages

      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017   Page 4 of 9
       in the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a)

       (1977). “A person engages in conduct ‘knowingly’ if, when he engages in the

       conduct, he is aware of a high probability he is doing so.” Ind. Code § 35-41-2-

       2(b) (1977). The mens rea element of a crime “may be proven by circumstantial

       evidence alone, and may be inferred from the facts and circumstances of each

       case.” Baxter v. State, 891 N.E.2d 110, 121 (Ind. Ct. App. 2008).


[9]    The State presented evidence that McMiller and Garcia consumed food and

       drink from Scotty’s Brewhouse and that payment was not made for that food

       and drink. However, the State did not present evidence that, at any time during

       the incident, McMiller behaved in a way that could suggest he consumed the

       food and drink with an intent to deprive Scotty’s Brewhouse of the value

       thereof.


[10]   McMiller argues he was “in the wrong place at the wrong time with the wrong

       person.” (Br. of Appellant at 11.) He testified he went to Scotty’s Brewhouse at

       Garcia’s invitation and she told him she would pay with the credit card they

       had been using all day. Thus, he claims, he did not have the requisite intent to

       commit Class A misdemeanor theft when he exerted control over Scotty’s food

       and drink because he never intended to deprive Scotty’s of the value of its food

       or drink. Our courts have long reversed “on insufficiency grounds, convictions

       that were based merely upon the defendant being in the ‘right place at the

       wrong time.’” McMahal v. State, 609 N.E.2d 1175, 1178 (Ind. Ct. App. 1993).

       This case is one such predicament.



       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017   Page 5 of 9
[11]   After Garcia’s credit card was declined, McMiller attempted to use his SSI debit

       card to pay for the meal, but it was declined. Officer Pickerrell testified he

       learned on the scene that McMiller “thought Ms. Garcia was taking McMiller

       out to dinner[.]” (Tr. at 20.) Officer Pickerrell admitted “it was fair to assume

       that if a person is being taken out to dinner they do not think that they have to

       pay for it[.]” (Id.) Officer Pickerrell and McMiller testified the card Garcia

       submitted for payment worked properly earlier in the day.


[12]   McMiller called his sister, who indicated she would pay the bill, but she did

       not. McMiller asked other patrons of the restaurant to pay the bill, and they did

       not. Officer Musser testified another patron came up to him and told him they

       would like to pay for McMiller and Garcia’s meal, but they were not permitted

       to do so. Thus, the bill was not paid.


[13]   Multiple witnesses testified McMiller was calm throughout the incident until he

       was arrested and did not make an attempt to leave at any time. He “wasn’t

       refusing to pay – he did not have the ability to pay and believed he had made

       other arrangements for payment.” (Br. of Appellant at 12). This is unlike the

       facts in Bowman v. State, 468 N.E.2d 1064 (Ind. Ct. App. 1984), where Bowman

       was convicted of theft after attempting to leave a store with a saw for which he

       did not pay. We affirmed Bowman’s conviction for theft, observing that in

       addition to attempting to leave the store with the saw by “walking briskly,” id.

       at 1066, toward the exit, Bowman provided a receipt for the wrong date,

       claimed his companion paid for it, and “insisting he had been in the catalog



       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017   Page 6 of 9
       department and had not realized they came inside.” Id. Such deception is not

       present in this case.


[14]   Further, in searching for a case analogous to the facts before us, we found a

       dearth of cases wherein a person was convicted of theft when the person ate a

       meal and was then unable to pay for the meal, but remained at the restaurant

       attempting to find a way to pay. More common are defendants who leave

       without trying to pay for the food or drinks consumed. See, e.g., People v.

       McDonald, 689 N.Y.S.2d 600, 601 (N.Y. 1999) (defendant convicted of theft

       when he “ordered alcoholic beverages, drank them, and left without paying the

       bill ($126.33)”). McMiller did not leave or even attempt to leave; instead, he

       tried to obtain the money to pay the bill.


[15]   While it is not our role to reweigh the evidence or judge the credibility of

       witnesses, we also cannot sustain a conviction for a crime the State did not

       prove. See Martin v. State, 157 Ind. App. 380, 385, 300 N.E.2d 128, 131 (1973)

       (while a conviction may rest on circumstantial evidence, we must be careful to

       review the record as to not place in jeopardy “the liberty of many innocent

       persons”). Here, the State presented sufficient evidence McMiller consumed

       food and drink for which he thereafter could not pay, and thus McMiller

       deprived Scotty’s Brewhouse of the value of the food and drink. See Ind. Code

       § 35-43-4-2(a) (elements of theft). However, the State has not proven McMiller

       had the intent to deprive Scotty’s of the value when he consumed the food and

       drink. Therefore, we must reverse. See Umphrey v. State, 63 Ind. 223, 226



       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017   Page 7 of 9
       (1878) (intent to deprive a person of their property must be present to convict

       for theft).


                               Class B Misdemeanor Disorderly Conduct

[16]   To prove McMiller committed Class B misdemeanor disorderly conduct, the

       State had to provide sufficient evidence McMiller (1) recklessly, knowingly, or

       intentionally (2) made “unreasonable noise” and continued “to do so after

       being asked to stop.” Ind. Code § 35-45-1-3(a)(2) (2014). McMiller argues the

       State did not prove he disturbed other patrons. He also claims that “any noise

       made by him in these circumstances was not unreasonable[.]” (Br. of Appellant

       at 13.) His arguments are requests for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146

       (appellate court cannot reweigh evidence or judge the credibility of witnesses).


[17]   The State presented evidence McMiller was “talking loudly, upset obviously

       because he was going to jail.” (Tr. at 28.) In addition, he was “disrupting the

       booth next to . . . where he was sitting.” (Id. at 33.) Officer Musser testified

       McMiller was


               talking loudly to get their attention and then asking them to help
               him out and pay his bill and the table . . . ignoring [sic] him and
               he kept trying to talk louder to get their attention . . . I said “hey
               leave them alone, you know they are here enjoying their dinner”
               and he kept going and kept going. And finally you know, the
               people engaged and it was like you know we don’t have the - we
               are not going to help you.




       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017     Page 8 of 9
       (Id. at 33-4.) We conclude the State presented sufficient evidence McMiller

       committed Class B misdemeanor disorderly conduct. See Martin v. State, 499

       N.E.2d 273, 274 (Ind. Ct. App. 1986) (evidence sufficient to support conviction

       of disorderly conduct when Martin spoke in a “very loud voice” in a public

       place where others had gathered and continued to do so after being asked to

       stop).



                                                Conclusion
[18]   The State did not present sufficient evidence McMiller consumed food and

       drink with an intent to deprive Scotty’s Brewhouse of the value therefor and

       thus the evidence was insufficient to prove McMiller committed Class A

       misdemeanor theft. However, the State presented sufficient evidence McMiller

       committed Class B misdemeanor disorderly conduct. Accordingly, we reverse

       McMiller’s theft conviction and affirm his disorderly conduct conviction.


[19]   Reversed in part and affirmed in part.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1192 | December 18, 2017   Page 9 of 9
