MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                               FILED
court except for the purpose of establishing                       Jun 28 2017, 7:02 am
the defense of res judicata, collateral                                 CLERK
estoppel, or the law of the case.                                   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

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

George Stigger,                                          June 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1612-CR-2822
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Peggy R. Hart,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G10-1602-CM-5860



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017        Page 1 of 6
                                          Case Summary
[1]   On February 6, 2016, Appellant-Defendant George Stigger entered a Lowe’s

      store in Indianapolis, selected a faucet from the plumbing aisle, and

      fraudulently returned the faucet in exchange for a store gift/merchandise card

      valued at over $220.00. Stigger was subsequently charged with and convicted

      of Class A misdemeanor theft. On appeal, Stigger contends that the evidence is

      insufficient to sustain his conviction. Concluding otherwise, we affirm.



                            Facts and Procedural History
[2]   According to the store policy of Lowe’s, when a customer wishes to make a

      return but does not have a receipt, the customer must present a valid driver’s

      license/identification card to process the return. It often raises a red flag when

      a record of the original purchase cannot be located because the original

      purchase was allegedly made with cash. For such returns valued at over one

      hundred dollars, loss prevention officers automatically review store surveillance

      footage of the transaction to verify that the customer entered the store with the

      merchandise in question.


[3]   On February 6, 2016, Stigger visited an Indianapolis-area Lowe’s store with his

      friend, Eric Parson. Upon arriving at the store, Stigger and Parson entered

      through separate entrances. Neither Stigger nor Parson was holding any

      merchandise when they entered the store.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017   Page 2 of 6
[4]   Approximately two minutes after entering the store, Stigger and Parson met in

      the plumbing aisle. Parson selected a Delta faucet from the display and placed

      it in his cart. Approximately eight minutes later, Stigger and Parson were

      observed walking toward the front of the store. By this time, the faucet had

      been placed in a gray plastic Lowe’s bag.


[5]   Stigger approached the customer service desk and informed Lowe’s associate

      Amy Fry that he needed to return the faucet but did not have a receipt. Stigger

      presented Fry with his driver’s license so that Fry could process the return. Fry

      entered Stigger’s information into the store’s system. Fry completed the return

      and presented Stigger with a gift/merchandise card containing $245.03 1 in store

      credit. Stigger and Parson then left the store.


[6]   Subsequent review of the transaction confirmed that neither Stigger nor Parson

      had been in possession of the faucet when they entered the store. The review

      also confirmed that the faucet in question was stocked in the plumbing aisle,

      i.e., the aisle in which Stigger and Parson were observed selecting the faucet. In

      addition, the review revealed that the information gleaned from the

      identification provided by Stigger matched Stigger’s records with the Indiana

      Bureau of Motor Vehicles.




      1
        The electronic receipt generated from the return indicates that Stigger was given a store gift/merchandise
      card valued at $245.03, with $229.00 for the value of the faucet and $16.03 for Indiana sales tax that would
      have been paid on the original purchase.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017               Page 3 of 6
[7]   On February 17, 2016, Appellee-Plaintiff the State of Indiana (“the State”)

      charged Stigger with one count of Class A misdemeanor theft. On November

      14, 2016, following a jury trial, Stigger was found guilty as charged. The trial

      court subsequently sentenced Stigger to a sixty-day term with credit for time

      served and the remaining fifty-eight days to be served on home detention. This

      appeal follows.



                                 Discussion and Decision
[8]   Stigger contends that the evidence is insufficient to sustain his conviction for

      Class A misdemeanor theft.

              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017   Page 4 of 6
       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).


[9]    “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). “A person engages in conduct ‘knowingly’ if, when he engages in the

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

       41-2-2(b). “A person engages in conduct ‘intentionally’ if, when he engages in

       the conduct, it is his conscious objective to do so. Ind. Code § 35-41-2-2(a).


[10]   The charging information alleges that


                On or about February 6, 2016, [Stigger] did knowingly or
                intentionally exert unauthorized control over the property of
                LOWE[’]S, to-wit: merchandise card with $229.00 in value, with
                the intent to deprive LOWE[’]S of any part of the use or value of
                the property.


       Appellant’s App. Vol. II – Confidential, p. 17. Thus, in order to prove that

       Stigger committed the charged Class A felony theft, the State was required to

       prove that Stigger knowingly or intentionally exerted unauthorized control over

       a Lowe’s gift/merchandise card containing $229.00 in Lowe’s store credit.


[11]   Store surveillance footage from the date in question indicates that neither

       Stigger nor Parson had the faucet on their person when they entered the store or

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017   Page 5 of 6
       the aisle where the faucet was stocked. The store surveillance footage indicates,

       however, that upon exiting the aisle in question, Stigger and Parson have the

       faucet in a gray Lowe’s plastic bag in their shopping cart. Stigger then

       approached Fry and indicated that he needed to make a return for which he did

       not have a receipt. Stigger presented Fry with the faucet and his driver’s

       license, and Fry completed the return. Because Stigger indicated that the

       original purchase had been made with cash, Fry gave Stigger a Lowe’s

       gift/merchandise card worth the $229.00 value of the faucet plus tax. Stigger

       and Parson then left the store with the gift/merchandise card.


[12]   Upon review, we conclude that the evidence is sufficient to sustain Stigger’s

       conviction for Class A misdemeanor theft. Stigger’s claim to the contrary

       amounts to nothing more than an invitation for this court to reweigh the

       evidence, which we will not do. See Stewart, 768 N.E.2d at 435.


[13]   The judgment of the trial court is affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2822 | June 28, 2017   Page 6 of 6
