MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D), this                            Sep 26 2016, 9:23 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                          CLERK
                                                                        Indiana Supreme Court
purpose of establishing the defense of res judicata,                       Court of Appeals
                                                                             and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Laura Paul                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Malena Shumaker,                                         September 26, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         77A05-1603-CR-468
        v.                                               Appeal from the Sullivan Superior
                                                         Court.
                                                         The Honorable Hugh R. Hunt,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 77D01-1512-CM-830




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016         Page 1 of 7
                                          Statement of the Case
                                                                                                    1
[1]   Malena Shumaker appeals her conviction of theft, a Class A misdemeanor.

      We affirm.


                                                     Issue
[2]   Shumaker presents one issue, which we restate as: whether there is sufficient

      evidence to sustain her conviction for theft as an accomplice.


                                   Facts and Procedural History
[3]   On December 1, 2015, Shumaker, her boyfriend Michael Myers, and Stephen

      Boatman stopped at a convenience store in Sullivan, Indiana, to get gasoline for

      their car. Shumaker and Myers entered the store while Boatman stayed with

      the car.


[4]   A surveillance camera recorded Shumaker’s actions in the store but did not

      record any audio. Shumaker waited until another customer had finished his

      transaction with the clerk before approaching the counter. Myers momentarily

      stepped away from Shumaker and out of the camera’s view. Shumaker tried to

      exchange a $25 gift card for cash, but the clerk refused.


[5]   Next, Myers walked up to the counter and stood next to Shumaker, near the

      cash register. A small red Salvation Army donation bucket sat on the counter




      1
          Ind. Code § 35-43-4-2 (2014).


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      in front of the cash register, out of the clerk’s sight. As Shumaker and the clerk

      were talking, Myers looked down at the bucket, put his hand on it, and furtively

      slid it back and forth on the counter until it was close to where he was standing.


[6]   When the clerk turned around to get cigarettes for Shumaker, Shumaker turned

      to Myers, made eye contact, and said something to him. At that point, Myers

      slipped the bucket into his jacket and turned to walk out of the store. As Myers

      was leaving the store, Shumaker leaned over and onto the counter and was

      talking to the clerk, whose back was to Shumaker, as she appeared to retrieve

      another item for Shumaker. Shumaker paid for the cigarettes and purchased $5

      worth of gasoline, and then she left the store. The three drove away after

      Boatman put gasoline in the car.


[7]   Later, the clerk discovered the donation bucket was missing and called the

      police. An investigation led to Myers and Shumaker. The State charged

      Shumaker with theft. The case was tried to the bench, and the trial court

      determined Shumaker was guilty. The court imposed a sentence, and this

      appeal followed.


                                   Discussion and Decision
[8]   Rarely do we have an opportunity to see evidence from the same perspective as

      the finder of fact, but in this case the primary piece of evidence is State’s Exhibit

      1, the surveillance recording. Nevertheless, we cannot observe the demeanor of

      the parties’ witnesses, which is extremely important, and we must be hesitant to

      overlook the finder of fact’s role, therein, in doing so. As a result, when an

      Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016   Page 3 of 7
       appellant challenges the sufficiency of the evidence to sustain a conviction, we

       neither reweigh the evidence nor judge the credibility of the witnesses. Wright v.

       State, 828 N.E.2d 904, 905-06 (Ind. 2005). We consider conflicting evidence in

       the light most favorable to the judgment. Id. at 906. We will affirm if the

       probative evidence and reasonable inferences drawn from the evidence could

       have allowed a reasonable finder of fact to find the defendant guilty beyond a

       reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).


[9]    Shumaker argues the State failed to provide sufficient evidence to establish that

       she was an active participant in the theft of the donation bucket. To obtain a

       conviction for theft, the State was required to prove beyond a reasonable doubt,

       that: (1) Shumaker (2) knowingly or intentionally (3) exerted unauthorized

       control over property of another person (4) with intent to deprive the other

       person of any part of its value. Ind. Code § 35-43-4-2. Myers testified at trial

       and admitted to stealing the bucket, claiming that Shumaker had nothing to do

       with the crime. The State countered by arguing that Shumaker was guilty of

       theft as Myers’ accomplice. As stated by the governing statute: “A person who

       knowingly or intentionally aids, induces, or causes another person to commit

       an offense commits that offense.” Ind. Code § 35-41-2-4 (1977).


[10]   In order to sustain a conviction as an accomplice, there must be evidence of the

       defendant’s affirmative conduct, either in the form of acts or words, from which

       an inference of common design or purpose to effect the commission of a crime

       may reasonably be drawn. Vandivier v. State, 822 N.E.2d 1047, 1054 (Ind. Ct.

       App. 2005), trans. denied. An accomplice need not participate in each and every

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       element of the crime in order to be convicted of it. Berry v. State, 819 N.E.2d

       443, 450 (Ind. Ct. App. 2004), trans. denied. Furthermore, it is not necessary for

       the State to show a defendant was party to a preconceived scheme, such as a

       conspiracy; it must merely demonstrate concerted action or participation in an

       illegal act. Id.


[11]   In determining whether a person aided another in the commission of a crime,

       we consider: (1) presence at the scene of the crime; (2) companionship with

       another engaged in criminal activity; (3) failure to oppose the crime; and (4) a

       defendant’s conduct before, during, and after the occurrence of the crime.

       Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003). A defendant’s mere presence

       during the commission of the crime or failure to oppose the crime are, by

       themselves, insufficient to establish accomplice liability. Ransom v. State, 850

       N.E.2d 491, 496 (Ind. Ct. App. 2006).


[12]   In this case, it is undisputed that Shumaker was present during the theft. She

       entered the convenience store with her companion, Myers, and engaged in a

       conversation with the clerk while Myers furtively moved the donation bucket

       back and forth along the counter until it was near him and out of the sight of

       the clerk. It is obvious from the video that just before Myers slipped the bucket

       into his jacket, Shumaker turned to Myers, made eye contact, and had a verbal

       exchange with him. After Myers had completed the theft, Shumaker did not

       extricate herself from the situation, disassociate herself from Myers, or

       otherwise oppose the crime. To the contrary, from viewing the video she

       appears that she may have distracted the clerk by leaning over and onto the

       Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016   Page 5 of 7
       counter and drawing attention to herself, thus allowing Myers to leave the store

       unnoticed. Finally, Shumaker got into the car with Myers and Boatman and

       drove away.


[13]   Shumaker argues that Myers admitted at trial that he stole the donation bucket,

       and he claimed he did it without Shumaker’s prior knowledge. The trial court

       was the finder of fact, and the task of weighing credibility is reserved to it alone.

       The court was not required to believe Myers, who also stated at trial that his

       memory of the night in question was hazy because he had been under the

       influence of controlled substances. Myers also stated he still loved Shumaker.

       In summary, crediting Myers’ testimony would require us to reweigh the

       evidence, which our standard of review forbids.


[14]   In any event, arguably, it may appear that Shumaker had no advance

       knowledge of the crime, but, the video strongly suggests that she became

       acutely aware of the crime as it was developing and ultimately occurred and it

       could be reasonably construed that she participated in it. Therefore, the

       evidence is sufficient to establish that she knowingly took concerted action to

       participate in the crime of theft as an accomplice. See Smith v. State, 809 N.E.2d

       938, 945 (Ind. Ct. App. 2004), (evidence sufficient to sustain conviction for

       resisting law enforcement with a vehicle as an accomplice because, even though

       defendant was a passenger in the car, he did not ask the driver to stop and

       removed the license plate from the rear window in an attempt to hinder police

       identification), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 77A05-1603-CR-468| September 26, 2016   Page 6 of 7
[15]   Shumaker cites Pennington v. State, 459 N.E.2d 764 (Ind. Ct. App. 1984), in

       support of her claim, but that case is distinguishable. In that case, a panel of

       this Court found the evidence insufficient to support a conviction of theft as an

       accomplice because there was no evidence that the defendant distracted the

       store employee while her brother left the store with a stolen radio. By contrast,

       in this case the surveillance video clearly showed Shumaker making eye contact

       with Myers and saying something to him just before he slid the donation bucket

       into his jacket. Next, Shumaker leaned over and onto the counter and engaged

       in a conversation with the clerk as Myers prepared to leave the store, giving the

       appearance of providing cover or a distraction to prevent the detection of the

       crime and/or his participation.


                                                Conclusion
[16]   For the foregoing reasons, we affirm the judgment of the trial court.


[17]   Affirmed.


       Baker, J., and Mathias, J., concur.




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