                                                                       FILED
MEMORANDUM DECISION                                               Jul 26 2016, 9:00 am

                                                                       CLERK
Pursuant to Ind. Appellate Rule 65(D),                             Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
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
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Wells,                                           July 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1512-CR-2259
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Allan Reid,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G10-1503-CM-7507



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2259 | July 26, 2016       Page 1 of 5
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Kenneth Wells (Wells), appeals his conviction for theft, a

      Class A misdemeanor, Ind. Code § 35-43-4-2.


[2]   We affirm.


                                                     ISSUE

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

      presented sufficient evidence beyond a reasonable doubt to sustain his

      conviction for theft.


                           FACTS AND PROCEDURAL HISTORY

[4]   On October 14, 2014, Officer Andrew Hashley (Officer Hashley) of the

      Indianapolis Metropolitan Police Department responded to a report of a theft

      from a residence in Marion County, Indiana. Carl Hudson (Hudson), who was

      staying at the residence, had noticed that “certain stuff was moved around” and

      realized that a number of items were missing from his room, i.e., a pair of

      Jordan tennis shoes, a computer tablet, and an amplifier. Hudson informed his

      mother, Yvonne Hasell (Hasell), who lived in the house. Wells, the son-in-law

      of Hasell’s spouse, had access to the house through one of the family members.

      Approximately five to six hours after the theft was discovered, Wells returned

      Hudson’s tennis shoes. Hudson also later learned that Wells had pawned the

      amplifier.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2259 | July 26, 2016   Page 2 of 5
[5]   Detective Richard Stratman (Detective Stratman) investigated certain pawn

      shop transactions and obtained a record from the Indy Pawn store located on

      Pendleton Pike, in Indianapolis. This record and a similar pawn slip described

      the pawned property as “AMPS CAR AUDIO CRUNCH POWERZONE

      P1500.1” and contained the right thumbprint of the person pawning the item.

      (State’s Exh. 1, 2). This person was later identified as Wells.


[6]   On March 5, 2015, the State filed an Information charging Wells with theft, a

      Class A misdemeanor. On October 26, 2015 and November 30, 2015, the trial

      court conducted a bench trial and declared Wells guilty as charged. That same

      day, the trial court proceeded to sentencing and sentenced Wells to 365 days,

      with 361 days suspended to probation and 40 hours of community service.


[7]   Wells now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION


[8]   Wells contends that the State did not present sufficient evidence beyond a

      reasonable doubt to support his conviction. When reviewing a claim of

      insufficient evidence, the appellate court will neither reweigh the evidence nor

      judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126

      (Ind. 2005). We consider only the probative evidence and reasonable inferences

      supporting the judgment. Id. And we must affirm “if the probative evidence

      and reasonable inferences drawn from the evidence could have allowed a

      reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

      Id.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2259 | July 26, 2016   Page 3 of 5
[9]    In its charging Information, the State charged Wells with “knowingly or

       intentionally exert[ing] unauthorized control over the property of [Hudson], to-

       wit: an amplifier, with the intent to deprive [Hudson] of any part of the use or

       value of the property[.]” 1 (Appellant’s App. p. 15). Here, the State did not

       premise its case on whether or not Wells actually stole the amplifier from the

       residence, rather, the State posited that Wells’ act of pawning the amplifier

       amounted to a knowing exercise of unauthorized control. “Knowledge that the

       property is stolen may be established by circumstantial evidence; however,

       knowledge of the stolen character of the property may not be inferred solely

       from the unexplained possession of recently stolen property.” Fortson v. State,

       919 N.E.2d 1136, 1143 (Ind. 2010) (quoting Barnett v. State, 834 N.E.2d 169,

       172 (Ind. Ct. App. 2005)). The test of knowledge is a subjective one, asking

       whether the defendant knew from the circumstances surrounding the possession

       that the property had been the subject of a theft. Purifoy v. State, 821 N.E.2d

       409, 414 (Ind. Ct. App. 2005), trans. denied. Possession of recently stolen

       property when joined with attempts at concealment, evasive or false statements,

       or an unusual manner of acquisition may be sufficient evidence of knowledge

       that the property was stolen. Id.


[10]   Here, the evidence most favorable to the judgment establishes that Wells had

       access to the residence through one of the family members. Approximately five



       1
         Under the 2014 revision of Title 35 of the Indiana Code, receiving stolen property is no longer a separate
       crime. See P.L. 158-2013, § 463 (eff. Jul. 1, 2014). Charges that formerly would have been brought as
       receiving stolen property are now categorized as theft charges.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2259 | July 26, 2016                Page 4 of 5
       to six hours after the theft of the tennis shoes, computer tablet, and amplifier

       was discovered, Wells returned the tennis shoes to Hudson. Detective

       Stratman testified that the theft of the items had taken place on October 8, 2015,

       while on October 9, 2015, the amplifier was pawned. The pawn slip contained

       Wells’ name and his thumbprint. Hudson testified that the pawned amplifier

       was the same as the one taken from his room in the residence. Wells’ access to

       the house and his identification through the amplifier’s pawn slip together with

       his return of the tennis shoes, creates a reasonable inference that Wells knew

       that the amplifier had been the subject of a theft. See Purifoy, 821 N.E.2d at 414.

       Accordingly, we conclude that the State presented sufficient evidence beyond a

       reasonable doubt that Wells committed theft, as a Class A misdemeanor.


                                               CONCLUSION

[11]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to sustain Wells’ conviction for theft.


[12]   Affirmed.


[13]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2259 | July 26, 2016   Page 5 of 5
