MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Dec 19 2016, 9:15 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott Knierim                                           Gregory F. Zoeller
Danville, Indiana                                       Attorney General of Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christa Spinks,                                         December 19, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        32A04-1605-CR-1165
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Stephanie Lemay-
Appellee-Plaintiff.                                     Luken, Judge
                                                        Trial Court Cause No.
                                                        32D05-1507-F6-535



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 32A04-1605-CR-1165 | December 19, 2016   Page 1 of 7
                                             Case Summary
[1]   Christa Spinks appeals her conviction for Level 6 felony theft. We affirm.


                                                     Issue
[2]   The sole issue before us is whether there is sufficient evidence to sustain

      Spinks’s conviction.


                                                     Facts
[3]   The evidence most favorable to the conviction is that, on July 13, 2015, Spinks

      was employed at an Ace Hardware store in Brownsburg. At the completion of

      her shift at 5 p.m. that day, Spinks’s father picked her up and drove her to

      Hendricks County Estate Buyers, which is a “buy sell shop.” Tr. p. 105. Justin

      Briggs owns that shop, and it is located about one block away from the Ace

      Hardware. Spinks carried a yellow bag into the shop. The bag contained a

      DeWalt rechargeable drill with two batteries and a charger and two Craftsman

      wrench sets. The items appeared to be brand new. Briggs gave Spinks between

      $100 and $200 in cash for the items. At retail, the drill normally sold for

      $239.99; the batteries, $99.99 each; the charger, $69.99; and the wrench sets

      $29.99 each.


[4]   Briggs immediately suspected that the items Spinks had brought in were stolen

      from the Ace Hardware. At approximately 5:15 p.m. on the same day, Briggs

      called Skylar Stevenson, the owner of the Ace Hardware, and asked Stevenson

      if he was missing any items from inventory. Stevenson confirmed that a

      DeWalt drill, two batteries, a charger, and two sets of Craftsman wrench sets
      Court of Appeals of Indiana | Memorandum Decision 32A04-1605-CR-1165 | December 19, 2016   Page 2 of 7
      were missing from inventory. The SKU numbers on the items Briggs purchased

      from Spinks matched the numbers for the items missing from Stevenson’s

      inventory, although the SKU numbers were not necessarily unique to the

      Brownsburg Ace Hardware store.


[5]   Officer Cory Sears of the Brownsburg Police Department spoke with Spinks

      about the items she sold to Briggs. She told Officer Sears that the items had

      been in her living room for an unknown amount of time. However, Briggs told

      her father that she found the drill in a dumpster.


[6]   The State charged Spinks with Class A misdemeanor theft and Level 6 felony

      theft, based on a prior theft or conversion conviction. After a jury trial, Spinks

      was found guilty of Class A misdemeanor theft. Spinks waived jury trial with

      respect to the Level 6 felony charge. The trial court found Spinks guilty of that

      charge and entered judgment and sentenced her accordingly on that charge

      only. Spinks now appeals.


                                                  Analysis
[7]   Spinks contends there is insufficient evidence to support her theft conviction.

      When addressing a claim of insufficient evidence, we must consider only the

      probative evidence and reasonable inferences supporting the conviction. Sallee

      v. State, 51 N.E.3d 130, 133 (Ind. 2016). It is the fact-finder’s role, not ours, to

      assess witness credibility and weigh evidence to determine whether it is

      sufficient to support a conviction. Id. “It is not necessary that the evidence

      ‘overcome every reasonable hypothesis of innocence.’” Id. (quoting Moore v.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1605-CR-1165 | December 19, 2016   Page 3 of 7
      State, 652 N.E.2d 53, 55 (Ind. 1995)). “‘[E]vidence is sufficient if an inference

      may reasonably be drawn from it to support the verdict.’” Id. (quoting Drane v.

      State, 867 N.E.2d 144, 147 (Ind. 2007)). However, “[e]vidence sufficient only

      to establish a mere suspicion of guilt is not sufficient to support a conviction.”

      Id. at 135.


[8]   Spinks specifically asserts there is insufficient evidence that she took the items

      from the Ace Hardware or that she knew they were stolen when she sold them

      to Briggs. In order to convict Spinks of theft, the State was required to prove

      that she knowingly or intentionally exerted unauthorized control over property

      of Ace Hardware, with intent to deprive Ace Hardware of any part of the

      property’s value or use. See Ind. Code § 35-43-4-2(a).1 Spinks’s argument goes

      to lack of mens rea or intent.


[9]   Spinks relies heavily upon Fortson v. State, 919 N.E.2d 1136 (Ind. 2010). In that

      case, the defendant was driving a truck that had been reported stolen about six

      or seven hours before he was pulled over by police and arrested. There was a

      passenger in the truck who was allowed to go free. The defendant denied

      having stolen the truck and claimed it had been loaned to him by another

      person, but police did not ask who the other person was. The State charged the

      defendant with receiving stolen property, and he was convicted of that offense.




      1
        The offense is elevated from a Class A misdemeanor to a Level 6 felony if a defendant has a prior unrelated
      conviction for either theft or criminal conversion. I.C. § 35-43-4-2(a)(1)(C). Spinks makes no argument
      regarding the elevation of her offense.

      Court of Appeals of Indiana | Memorandum Decision 32A04-1605-CR-1165 | December 19, 2016          Page 4 of 7
[10]   On appeal, our supreme court reversed the conviction for insufficient evidence.

       Fortson, 919 N.E.2d at 1143-44. In doing so, although the case involved a

       conviction for receiving stolen property and not theft, the court took the

       opportunity to discard the rule allowing for a theft conviction to be supported

       solely by the defendant’s unexplained possession of recently stolen property. Id.

       at 1143 (overruling Bolton v. State, 254 Ind. 648, 261 N.E.2d 841 (1970)). The

       court further explained:


               That is to say, the mere unexplained possession of recently stolen
               property standing alone does not automatically support a
               conviction for theft. Rather, such possession is to be considered
               along with the other evidence in a case, such as how recent or
               distant in time was the possession from the moment the item was
               stolen, and what are the circumstances of the possession (say,
               possessing right next door as opposed to many miles away). In
               essence, the fact of possession and all the surrounding evidence
               about the possession must be assessed to determine whether any
               rational juror could find the defendant guilty beyond a
               reasonable doubt.


       Id. The court also noted that, knowledge that property is stolen may be

       established by circumstantial evidence. Id. (quoting Barnett v. State, 834 N.E.2d

       169, 172 (Ind. Ct. App. 2005)).


[11]   Here, there is no direct evidence that Spinks knew the property she sold to

       Briggs had been stolen, such as eyewitness testimony or security camera footage

       of her stealing the property or a confession to that effect. However, Fortson

       explicitly does not require such direct evidence. And, we readily conclude there

       are more pieces to the puzzle here than were present in Fortson—enough pieces

       Court of Appeals of Indiana | Memorandum Decision 32A04-1605-CR-1165 | December 19, 2016   Page 5 of 7
       to prove beyond a reasonable doubt that Spinks was guilty of theft. Within

       fifteen minutes of completing her shift at Ace Hardware, Spinks sold items to

       Briggs at his store about a block away from the Ace Hardware. The items

       appeared to be brand new and matched items Stevenson discovered were

       missing from Ace Hardware’s inventory. Spinks sold the items for considerably

       less than their retail value. Spinks then gave clearly false and inconsistent

       explanations for where she had gotten the items from to her father and Officer

       Sears. In other words, Spinks had plain and easy access to items identical to

       ones missing from Ace Hardware’s inventory and essentially “fenced” them for

       cash within minutes of completing her shift. The circumstantial evidence is

       overwhelming that Spinks at the least knew the items were stolen and exercised

       unauthorized control over them with intent to deprive Ace Hardware of their

       value and use. It goes well beyond merely establishing that she possessed

       recently stolen property. This supports her conviction for theft.


[12]   Spinks attempts to shift suspicion for the theft of Ace Hardware’s property onto

       her boyfriend, Tim Hueston. Hueston also was employed by Ace Hardware

       and also worked the same shift as her on the day in question and also was given

       a ride home after work by her father. Both Briggs and Stevenson had suspicions

       that Hueston was involved in theft; he was considered a suspect by Officer

       Sears but was never charged with any crime. However, it was Spinks and

       Spinks alone who went into Briggs’s store and sold the items to Briggs. The

       evidence ties Spinks to the theft, not Hueston. Spinks’s insinuation that




       Court of Appeals of Indiana | Memorandum Decision 32A04-1605-CR-1165 | December 19, 2016   Page 6 of 7
       Hueston was the true thief is an invitation to reweigh the evidence, which we

       must decline.


                                                 Conclusion
[13]   There is sufficient evidence to sustain Spinks’s conviction for Level 6 felony

       theft. We affirm.


[14]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1605-CR-1165 | December 19, 2016   Page 7 of 7
