                                                                           Apr 10 2015, 9:58 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jeffrey D. Stonebraker                                     Gregory F. Zoeller
Clark County Chief Public Defender                         Attorney General of Indiana
Jeffersonville, Indiana
                                                           Kenneth E. Biggins
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Middleton,                                          April 10, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           10A04-1407-CR-317
        v.                                                 Appeal from the Clark Circuit Court;
                                                           The Honorable Vicki L. Carmichael,
                                                           Judge;
State of Indiana,                                          10C04-1309-FC-246
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015                          Page 1 of 6
[1]   Jeremy Middleton challenges the sufficiency of evidence support his conviction

      of Class D felony theft.1


[2]   We reverse.


                                        Facts and Procedural History
[3]   On September 19, 2013, Middleton entered Rural King with two other people.

      Employees notified Roxanne Mundy, a department manager, of suspicious

      behavior. Mundy started to observe and follow Middleton. Mundy saw

      Middleton attempt to cut the security device from a product, but she was unable

      to identify that product. Mundy thought Middleton saw her, and Middleton

      then left the store.


[4]   Doug Burdin, another department manager, and Christopher Watkins, the store

      manager, followed Middleton and Mundy into the parking lot in order to

      obtain a license plate number or a car description. Middleton said to Mundy:

      “Why are you following me? I’ve got nothing.” (Tr. at 84.) Mundy insisted

      Middleton return “what you have.” (Id. at 31.) Both Mundy and Middleton

      threatened to call the police. During their interaction, Middleton was raising

      his shirt and putting his hands in his pockets. At one point, Middleton pulled a

      knife from his pocket, which he dropped and Mundy retrieved. Mundy gave

      the knife to Watkins.




      1
          Ind. Code 35-43-4-2 (2013).


      Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015   Page 2 of 6
[5]   Watkins saw a police car driving nearby and flagged down Officer Jeff Gordon

      to assist. Middleton, on seeing the police, started running away. Burdin

      watched where Middleton was going and pointed him out to Officer Gordon.

      Officer Gordon was able to catch Middleton and arrest him. Middleton

      declared his innocence.


[6]   At trial, in support of the theft charge,2 the State presented the testimony of

      Mundy, Watkins, and Burdin. Middleton objected to parts of their testimony

      as hearsay. The court allowed the testimony, but it admonished the jury that

      the testimony was to be used to explain the actions of the Rural King

      employees, not to prove the truth of the matter asserted. The jury found

      Middleton guilty.


                                       Discussion and Decision
[7]   On appeal, Middleton asserts there was insufficient evidence to support his

      conviction of Class D felony 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



      2
        The State also charged Middleton with intimidation, a Class C felony, based on his pulling a knife from his
      pocket during the interaction with Mundy. The jury convicted him of that charge, but he does not challenge
      it on appeal.

      Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015                          Page 3 of 6
              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) (quotations, citation, and

      footnote omitted) (emphasis in original).


[8]   Theft is committed when a person “knowingly or intentionally exerts

      unauthorized control over property of another person, with intent to deprive the

      other person of any part of its value. . . .” Ind. Code § 35-43-4-2. Middleton’s

      charging information pertaining to the theft stated:

              On September 19, 2013, in Clark County, State of Indiana, JEREMY
              LEE MIDDLETON did knowingly or intentionally exert
              unauthorized control over a range-finder of Rural King, with intent to
              deprive Rural King of any part of its value or use.
      (App. at 6.)


[9]   As to this charge, the testimony of Mundy that was offered for the truth of the

      matter asserted was that she followed Middleton through the store; she saw him

      cutting on a security device, but she could not see the product he was

      attempting to extricate; and she followed him outside. The testimony of Burdin

      and Watkins that was admitted for the truth of the matter asserted related only

      to Middleton’s actions after leaving the store.




      Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015         Page 4 of 6
[10]   With the removal of the hearsay testimony,3 which the jury was admonished

       was “not . . . offer[ed] . . . for the truth of the matter asserted, simply, so the

       Jury can understand what she did,” (Tr. at 14), and “not saying anything for the

       truth of the matter asserted,” (id. at 18), the evidence presented against

       Middleton as to the charge of theft amounts to Mundy’s statements that she

       followed him, she saw him using a knife on a security device, and he left the

       store. Although Mundy saw Middleton using a knife on something, she was

       unable to identify the product. No other evidence was presented to prove

       Middleton took a range-finder. That is not sufficient evidence from which a

       reasonable jury could infer Middleton knowingly or intentionally exerted

       unauthorized control over a range-finder. See Williams v. State, 714 N.E.2d 671,

       674 (Ind. Ct. App. 1999) (insufficient evidence to support conviction when all

       elements of theft were not proven).


                                                   Conclusion
[11]   The evidence was insufficient to support Middleton’s conviction of Class D

       felony theft; therefore, we reverse.


[12]   Reversed.




       3
         The testimony objected to on hearsay grounds pertained to why Mundy started following Middleton,
       a cashier’s report of someone in line talking on a phone saying Middleton was being followed and they
       needed to leave, and the report of the discovery of a range finder under some animal feed.

       The employees who allegedly saw Middleton with a range finder were not called to testify. The
       employees who allegedly discovered a range finder in the animal feed were not called to testify. No
       surveillance video was entered into evidence. No pictures of a range finder were entered into evidence.

       Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015                          Page 5 of 6
Barnes, J., and Pyle, J., concur.




Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015   Page 6 of 6
