                                                                Mar 27 2015, 9:42 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Timothy P. Broden                                         Gregory F. Zoeller
Lafayette, Indiana                                        Attorney General of Indiana
                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jimmy Wallen, Jr.,                                        March 27, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          79A02-1407-CR-469
        v.                                                Appeal from the Tippecanoe Superior
                                                          Court.

State of Indiana,                                         The Honorable Les A. Meade, Judge.
                                                          Cause No. 79D05-1309-FD-424
Appellee-Plaintiff




Riley, Judge.




Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015              Page 1 of 10
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jimmy Wallen, Jr. (Wallen), appeals his conviction of

      theft, a Class D felony, Ind. Code § 35-43-4-2 (2013).


[2]   We affirm.


                                                      ISSUE

[3]   Wallen raises one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion by giving an improper jury instruction.


                            FACTS AND PROCEDURAL HISTORY

[4]   On the afternoon of July 17, 2013, Robert Loop (Loop) was working as an asset

      protection associate at Walmart in Lafayette, Indiana, when he observed a man

      and woman—later identified as Wallen and his girlfriend, Athena Dulin

      (Dulin)—enter the store and proceed directly to the electronics department.

      Noticing Dulin’s “large seemingly empty purse[,]” Loop began monitoring their

      activity. (Tr. p. 90). From a nearby aisle, Loop watched as Wallen “quickly

      select[ed] a [PlayStation] starter kit and then handed it to [Dulin].” (Tr. p. 47).

      Wallen also selected a pair of wireless headphones and passed them to Dulin.


[5]   Wallen and Dulin exited the electronics department, and Loop maintained a

      close vantage point as they found an empty aisle in the baby department.

      There, Dulin removed the PlayStation starter kit and headphones from their

      packages and placed the items in her purse. Dulin then concealed the empty

      packaging “on the bottom shelf behind other merchandise.” (Tr. p. 51).



      Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015   Page 2 of 10
      Wallen and Dulin subsequently separated. Because the store’s merchandise

      was in Dulin’s purse, Loop focused his surveillance on her as she walked over

      to the racks of girls’ clothes. After removing numerous articles of clothing from

      their hangers and stowing everything in her purse, Dulin rejoined Wallen in the

      boys’ apparel section. Both Wallen and Dulin selected several more pieces of

      clothing, removed the hangers, and discarded the tags on the floor, and then

      Dulin stuffed all of the items into her purse.


[6]   Without stopping to look at any more merchandise, Wallen and Dulin headed

      toward the front of the store, bypassing the cash registers. When they exited

      through the first set of doors and were in the atrium, Loop approached Wallen

      and Dulin, introduced himself, and requested that they “return to the store to

      discuss the merchandise.” (Tr. p. 58). Wallen complied, but Dulin—with her

      purse in tow—fled to the parking lot and drove off. At that point, Loop

      contacted the Lafayette Police Department, and Officer Khoury Elias arrived to

      investigate. Upon questioning, Wallen denied any involvement in or

      knowledge of the shoplifting. No merchandise was found in his possession.


[7]   On September 6, 2013, the State filed an Information, charging Wallen with

      Count I, theft, a Class D felony, I.C. § 35-43-4-2 (2013); and Count II,

      conversion, a Class A misdemeanor, I.C. § 35-43-4-3 (2013). On May 8, 2014,

      the trial court conducted a jury trial. At the close of the evidence, the jury

      returned a guilty verdict on both Counts. On June 5, 2014, the trial court held a

      sentencing hearing. Due to double jeopardy considerations, the trial court




      Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015   Page 3 of 10
       merged Count II into Count I and imposed a three-year sentence, fully executed

       in Tippecanoe County Community Corrections.


[8]    Wallen now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[9]    Wallen claims that the trial court improperly instructed the jury on the intent

       element of his charged offense. In general, instruction of the jury is a matter

       reserved to the sound discretion of the trial court and is subject to review only

       for an abuse of that discretion. Townsend v. State, 934 N.E.2d 118, 127 (Ind. Ct.

       App. 2010), trans. denied. The purpose of jury instructions is to apprise “the jury

       of the law applicable to the facts without misleading the jury and to enable it to

       comprehend the case clearly and arrive at a just, fair, and correct verdict.” Id.

       Jury instructions should “be considered as a whole and in reference to each

       other.” Id. at 130. Accordingly, we will not reverse unless the instructions,

       when considered together, “misstate the law or mislead the jury.” Id.


[10]   During the trial, the State proposed the following jury instruction:

               Instruction 12.47 Evidence of theft and/or conversion – I.C. 35-43-
               4-4
               The price tag or price marking on property displayed or offered for sale
               constitutes evidence of the value and ownership of the property.
               Evidence that a person:
                  (1) concealed property displayed or offered for sale; and
                  (2) removed the property from any place within the business
               premises at which it was displayed or offered to a point beyond that at
               which payment should be made;
               constitutes evidence of intent to deprive the owner of the property of a



       Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015     Page 4 of 10
               part of its value and/or that the person exerted unauthorized control
               over the property.
       (Appellant’s App. p. 21). Over Wallen’s objection that the instruction

       impermissibly highlights specific evidence and also “constitut[es] [an] improper

       mandatory [rebuttable] presumption[,]” the trial court tendered it to the jury.

       (Tr. pp. 137-38).


[11]   In order to prove that Wallen committed theft as a Class D felony, the State

       was required to establish that he knowingly or intentionally exerted

       unauthorized control over Walmart’s property, with the intent to deprive

       Walmart of the value or use thereof. I.C. § 35-43-4-2(a) (2013). The jury was

       explicitly instructed that the State had to “prove each element of the crime”

       beyond a reasonable doubt. (Appellant’s App. p. 22). Wallen now contends

       that the challenged instruction invaded the role of the jury by presuming an

       ultimate issue of the case. We agree.


[12]   In particular, we find that the instruction is erroneous because it does not afford

       the jury an opportunity to determine whether the evidence revealing that

       merchandise was concealed in Dulin’s purse is proof that Wallen intended to

       deprive Walmart of its value or that he exerted unauthorized control over the

       property; instead, it prompts the jury to reach such a conclusion. See Chandler v.

       State, 581 N.E.2d 1233, 1236 (Ind. 1991). Our court has previously found error

       in a jury instruction that, as in the present case, tracked the language of Indiana

       Code section 35-43-4-4, which delineates the types of evidence that may be used

       to establish the crime of theft. In Matney v. State, 681 N.E.2d 1152, 1153 (Ind.



       Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015      Page 5 of 10
       Ct. App. 1997), reh’g denied; trans. denied, we found that the instruction failed to

       “clearly advise the jury that the ultimate issue to be presumed from the evidence

       is only permissive and that the jury is free to accept or reject the presumption.”

       Id. We concluded that the instruction “constitute[d] an improper mandatory

       rebuttable presumption which relieve[d] the State of the burden of persuasion

       on an element of the offense.” Id.


[13]   As our supreme court has explained, “[a] mandatory presumption instructs the

       jury that it must infer the presumed fact if the State proves certain predicate

       facts.” Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998). Such presumptions

       violate due process because “they relieve the State of the burden of persuasion

       on an element of an offense.” Id. If, however, a jury instruction creates a

       permissive inference rather than a mandatory presumption, the State remains

       burdened “to convince the jury that the suggested conclusion should be inferred

       based on the predicate facts proved.” Id.


[14]   Here, the instruction states that evidence that a person has concealed and

       removed property from its point of display “constitutes evidence of intent to

       deprive the owner of the property of a part of its value and/or that the person

       exerted unauthorized control over the property.” (Appellant’s App. p. 21).

       Nothing in the instruction informs the jurors that they may infer Wallen’s

       criminal intent from such evidence. See Brown, 691 N.E.2d at 445 (noting that

       “the phrases ‘may look to,’ ‘may infer,’ and ‘may consider,’ are indicative of

       permissive inferences, not mandatory presumptions”). Rather, the instruction

       indicates that the evidence requires the jury to reach such a conclusion.

       Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015   Page 6 of 10
       Therefore, we hold that the jury instruction is improper because it relieves the

       State of its burden to prove the element of intent.


[15]   Nevertheless, the State asserts that reversal is not warranted because any error

       in the giving of the jury instruction was harmless. Errors in jury instructions are

       harmless if the “conviction is clearly sustained by the evidence and the jury

       could not properly have found otherwise.” Dill v. State, 741 N.E.2d 1230, 1233

       (Ind. 2001). Thus, an instruction error will warrant reversal only if we “‘cannot

       say with complete confidence’ that a reasonable jury would have rendered a

       guilty verdict had the instruction not been given.” Id.


[16]   In the present case, Loop testified that he directly observed as both Wallen and

       Dulin selected several items of electronic and clothing merchandise, removed

       the tags and packaging, and concealed the goods in Dulin’s purse. They then

       proceeded to the store’s exit without stopping at the cash registers. In addition,

       the jury viewed the footage from Walmart’s video surveillance, which captured

       Wallen and Dulin “selecting merchandise and leaving the store.” (Tr. p. 65).

       Wallen directs our attention to Dulin’s testimony that Wallen was completely

       oblivious to the fact that she had concealed merchandise in her purse, but it is

       well established that our court will not interfere with the jury’s determinations

       of witness credibility and evidentiary weight. Accordingly, because there was

       overwhelming evidence from which the jury could independently conclude that

       Wallen exerted unauthorized control over Walmart’s merchandise with the

       intent to deprive the store of the value thereof, we conclude that the error in the

       instruction was harmless. See Matney, 681 N.E.2d at 1153.


       Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015   Page 7 of 10
                                                CONCLUSION

[17]   Based on the foregoing, we conclude that the trial court abused its discretion in

       tendering the jury instruction; however, such error was harmless in light of the

       evidence of Wallen’s guilt.


[18]   Affirmed.


[19]   Vaidik, C. J. concurs


[20]   Baker, J. concurs in result with separate opinion




       Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015   Page 8 of 10
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Jimmy Wallen, Jr.,                                         Court of Appeals Case No.
                                                                  79A02-1407-CR-469
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Baker, Judge, concurring in result.

[21]   While I concur in the result reached by the majority, I must part ways with its

       analysis regarding the jury instruction. The majority finds that the instruction is

       problematic based on this Court’s opinion in Matney v. State, 681 N.E.2d 1152

       (Ind. Ct. App. 1997). In Matney, the jurors were instructed as follows:

               [e]vidence that a person concealed property displayed or offered for
               sale and removed the property from any place within the business
               premises at which it is . . . displayed or offered to a point beyond that
               at which payment should be made, constitutes prima facie evidence of
               intent to deprive the owner of the property of its value or use, and that
               the person exerted unauthorized control over the property.




       Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015             Page 9 of 10
       Id. at 1153 (emphasis added). The Matney Court then noted the way in which

       the trial court defined “prima facie evidence” for the jury and concluded that

       the instruction was improper because it did not “clearly advise the jury that the

       ultimate issue to be presumed from the evidence is only permissive and that the

       jury is free to accept or reject the presumption . . . .” Id.


[22]   In the instant case, unlike in Matney, the jury was not instructed that evidence

       of concealment plus removal constitutes prima facie evidence of intent to

       deprive. Instead, the jury was merely instructed that evidence of concealment

       plus removal constitutes “evidence” of intent to deprive. Appellant’s App. p.

       21. In my view, there is a marked distinction between “prima facie evidence,”

       which necessarily implies a presumption, and “evidence” alone, which merely

       informs the jury of what facts may constitute evidence of intent. I believe that

       the jury instruction in this case is appropriate and accurate, and part ways with

       the majority’s conclusion that it was erroneous. I agree with the result reached

       by the majority, however, and would likewise affirm Wallen’s conviction.




       Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015   Page 10 of 10
