Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                 Jun 12 2014, 10:26 am
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:

STEVEN P. MEYER                                  GREGORY F. ZOELLER
Ball Eggleston, P.C.                             Attorney General of Indiana
Lafayette, Indiana
                                                 CYNTHIA L. PLOUGHE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

NICHOLAS M. WEATHERFORD,                         )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 79A02-1309-CR-766
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-PLaintiff.                       )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                            The Honorable Les A. Meade, Judge
                              Cause No. 79D05-1304-FD-168


                                       June 12, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Nicholas M. Weatherford (Weatherford), appeals his

conviction for theft, a Class D felony, Ind. Code § 35-43-4-2, and his adjudication as a

habitual offender, I.C. § 35-50-2-8.

       We affirm.

                                         ISSUES

       Weatherford raises two issues on appeal, which we restate as:

       (1) Whether there is sufficient evidence beyond a reasonable doubt to support

           Weatherford’s conviction for theft; and

       (2) Whether the trial court abused its discretion in permitting the State to belatedly

           amend the Information to include a habitual offender charge.

                        FACTS AND PROCEDURAL HISTORY

       On April 8, 2013, Lafayette police officers were dispatched to the Tippecanoe Mall

in response to a theft in progress at Kohl’s Department Store (Kohl’s). Upon arrival,

Officer Andrew McCormick (Officer McCormick) went directly to Kohl’s loss prevention

office, where two employees were monitoring the activity of their suspect—Weatherford—

via the store’s security cameras. The footage captured Weatherford as he entered the store

carrying a Kohl’s shopping bag, which appeared to contain only a single shoebox. Officer

McCormick and the loss prevention officers observed Weatherford meandering through

the store, perusing merchandise in the shoe and jewelry departments.            In the shoe

department, Weatherford asked a sales associate about Kohl’s policy for making “an even

exchange.” (Transcript p. 44). The sales associate, who observed that Weatherford was

                                             2
carrying a shoebox inside of a shopping bag, explained that any item in the store could be

exchanged for another without a receipt so long as the ticket prices are identical.

       Eventually, Weatherford made his way to the men’s department, selected several

articles of clothing, and entered a fitting room. Weatherford emerged from the fitting room

with his shopping bag and “several pairs of pants.” (Tr. p. 31). He then “selected a couple

others off the shelf” and proceeded to the customer service desk carrying four pairs of

pants. (Tr. p. 31). Weatherford requested that the sales associate exchange two pairs of

pants that he had previously purchased for two different pairs. The sales associate

completed the transaction and placed the two pairs of pants in a new bag. Weatherford

headed toward Kohl’s exit, carrying his bag of new pants as well as his original shopping

bag with the shoebox. When Weatherford noticed that two police officers were standing

near the closest exit, he turned and headed for the opposite side of the store. At this time,

Officer McCormick, who had watched Weatherford’s transaction from the loss prevention

office, confronted Weatherford as he “was scurrying between racks of clothing” and placed

him under arrest. (Tr. p. 32). Weatherford repeatedly informed Officer McCormick that

he “didn’t take anything outside the store” and that “he was returning the pants, they were

given to him or he had purchased them and brought them from home.” (Tr. pp. 34, 38).

Kohl’s employees recovered the shopping bag with the stolen pants. The original shopping

bag with the shoebox, which Weatherford had stashed in a rack of clothing just prior to his

encounter with Officer McCormick, was returned to Weatherford’s family.

       On April 9, 2013, the State filed an Information, charging Weatherford with one

Count of theft, a Class D felony, I.C. § 35-43-4-2. At the initial hearing on April 30, 2013,

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the trial court set the omnibus date for May 24, 2013, and scheduled the trial for June 20,

2013. On May 31, 2013, Weatherford filed a motion for an early trial pursuant to Indiana

Criminal Rule 4(B)(1). On June 7, 2013, the trial court continued the trial until July 25,

2013, due to court congestion. On June 28, 2013, following Weatherford’s decision to

decline a plea agreement, the State filed a motion to amend the Information in order to

include a habitual offender charge under Indiana Code section 35-50-2-8. On July 1, 2013,

Weatherford objected, arguing that the State had filed the habitual offender charge outside

of the statutorily prescribed timeframe. On July 5, 2013, the trial court granted the State’s

motion to charge Weatherford as a habitual offender over Weatherford’s objection.

       On July 25, 2013, a bifurcated trial was conducted. When the State rested its case-

in-chief for Count I, theft, Weatherford moved for a directed verdict, which the trial court

denied. At the close of the evidence, the jury returned a verdict of guilty. Weatherford

then waived his right to a jury trial for Count II, the habitual offender charge. Instead, the

trial court held a bench trial and adjudicated Weatherford to be a habitual offender. On

August 21, 2013, the trial court conducted a sentencing hearing and sentenced Weatherford

to a term of three years for theft. For the habitual offender charge, the trial court enhanced

his sentence by four-and-a-half-years, resulting in an aggregate term of seven-and-a-half

years. The trial court ordered that five-and-a-half years be executed in the Indiana

Department of Correction and two years be suspended to probation.

       Weatherford now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                               I. Sufficiency of the Evidence

                                              4
       Weatherford claims that there is insufficient evidence to support his conviction for

theft. Our standard of review for sufficiency of the evidence cases is well established. We

will not reweigh evidence or judge the credibility of witnesses, and we construe any

conflicting evidence in favor of the verdict. Wright v. State, 828 N.E.2d 904, 906 (Ind.

2005). The jury, as the trier of fact, is charged with deciding whether the evidence has

sufficiently proven “each element of an offense.” Id. So long as there is “substantial

evidence of probative value supporting each element of the crime from which a reasonable

trier of fact could have found the defendant guilty beyond a reasonable doubt[,]” we will

affirm the conviction. Id.

       Indiana Code section 35-43-4-2(a) provides that “[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 D felony.”

Weatherford claims that there is no evidence that he exerted unauthorized control over

Kohl’s merchandise. Relying on the testimony of his mother, who stated that she saw

Weatherford place two pairs of pants into a shopping bag in order to return them to Kohl’s,

Weatherford argues that “[i]t was unreasonable for the jury to infer [that he] did not

originally bring the pants inside the store since no witness could testify with certainty as to

the entire contents of his shopping bag.” (Appellant’s Br. p. 6). We disagree.

       The evidence most favorable to the verdict establishes that Weatherford entered

Kohl’s carrying a shopping bag that contained only a shoebox. The jury heard Officer

McCormick testify that, although he could not “see through the bag[,]” he perceived the

outline of the bag’s contents, which “had sharp edges” and “appeared to be a box.” (Tr. p.

                                              5
39). The associate in the shoe department noted that she did not open the bag to inspect its

contents, but the only thing she saw in the shopping bag was a shoebox. Additionally, the

jury observed as another Kohl’s employee, using various configurations, demonstrated

how the Kohl’s shopping bag would appear if it contained the shoebox and two pairs of

pants. Along with eight still photographs taken from the surveillance footage, which depict

Weatherford and his shopping bag at various angles, the jury also viewed the surveillance

video in its entirety.

       Considering all of this evidence, as well as the conflicting testimony of

Weatherford’s mother, the jury determined that Weatherford did not have two pairs of

pants in his shopping bag when he entered the store. As the trier of fact, it is the jury’s

duty to weigh the evidence and assess the credibility of the witnesses, and we decline

Weatherford’s invitation to usurp the jury’s role in order to give more credit to his version

of events. See Wright, 828 N.E.2d at 906. We find that the probative evidence, along with

reasonably derived inferences, is sufficient for a reasonable trier of fact to find that

Weatherford exerted unauthorized control over Kohl’s merchandise, and we therefore

affirm his conviction for theft.

                               II. Habitual Offender Charge

       Weatherford also claims that the trial court abused its discretion by permitting the

State to amend the Information “less than [thirty] days before the trial date as required by

statute” to include the habitual offender charge. (Appellant’s Br. p. 6). Indiana Code

section 35-34-1-5(e) provides that



                                             6
       [a]n amendment of an indictment or information to include a habitual
       offender charge . . . must be made at least thirty (30) days before the
       commencement of trial. However, upon a showing of good cause, the court
       may permit the filing of a habitual offender charge at any time before the
       commencement of the trial if the amendment does not prejudice the
       substantial rights of the defendant. If the court permits the filing of a habitual
       offender charge less than thirty (30) days before the commencement of trial,
       the court shall grant a continuance at the request of the:
           (1) state, for good cause shown; or
           (2) defendant, for any reason.

The trial was scheduled to begin on July 25, 2013; thus, Weatherford argues that the State

should have filed the habitual offender charge no later than June 25, 2013. By filing its

motion “three days past the statutory deadline” without establishing good cause to do so,

Weatherford contends that the State “prejudiced his substantial rights.” (Appellant’s Br.

pp. 6-7).

       Although addressed by neither party, we must first clarify that the current version

of Indiana Code section 35-34-1-5(e) became effective as of July 1, 2013. At the time

Weatherford committed the offense, which was three months prior to the statutory

amendment, the law provided that

       [a]n amendment of an indictment or information to include a habitual
       offender charge . . . must be made not later than ten (10) days after the
       omnibus date. However, upon a showing of good cause, the court may permit
       the filing of a habitual offender charge at any time before the commencement
       of trial.

I.C. § 35-34-1-5(e) (2008). The general rule holds “that the law in effect at the time the

crime was committed is controlling.” Fields v. State, 888 N.E.2d 304, 309 (Ind. Ct. App.

2008). We do not deviate from the general rule absent “strong and compelling reasons.”

Id. Accordingly, we must apply the version of the statute in effect on April 8, 2013, which


                                               7
required the State to establish that it had good cause to amend the Information with a

habitual offender charge more than ten days after the omnibus date.

       The omnibus date for Weatherford’s case was May 24, 2013. Thus, the State’s June

28, 2013 motion to file the habitual offender charge clearly exceeded the ten-day time limit.

The State’s motion does not articulate specific grounds to demonstrate good cause for the

belated filing; however, it does state that on June 13, 2013, the State provided Weatherford

with notice of its intent to file the habitual offender charge if he did not agree to plead

guilty by July 1. See Williams v. State, 735 N.E.2d 785, 789 (Ind. 2000) (finding good

cause where State and defendant were involved in plea negotiations “up until the date the

habitual offender information was filed”). Nevertheless, Weatherford argues that there is

not “a clear record of the trial court’s finding of good cause.” (Appellant’s Br. p. 9). The

trial court ordered the parties to appear for a scheduling conference on July 5, 2013, in

order “to set the motion for a hearing[,]” but the trial court granted the State’s motion at

the scheduling conference without holding a subsequent hearing. (Appellant’s App. p. 21).

There is no transcript of the scheduling conference/hearing, and the trial court’s order

granting the motion does not include an explicit finding of good cause. See White v. State,

963 N.E.2d 511, 518 (Ind. 2012) ([A]n appellate court cannot speculate or assume that

good cause existed.”).

       Despite Weatherford’s formal objection to the State’s belated charge, it is

undisputed that Weatherford did not request the trial court to continue his trial. Indiana

courts have consistently held that in order “to preserve this issue for appeal, a defendant

must request a continuance after a trial court permits a tardy habitual-offender filing.” Id.

                                             8
Thereafter, the State is obligated to show good cause in support of the belated filing, “and

such a showing should be reflected in the record.” Id. Weatherford argues that the State’s

untimely filing “put him in the position of choosing between a speedy trial and a well-

prepared defense[,]” but our supreme court has determined that a defendant’s motion for a

speedy trial “does not negate” a defendant’s obligation to seek a continuance. (Appellant’s

Br. p. 6). Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996). Because “there is no

requirement that the habitual offender phase of a criminal proceeding be conducted

immediately following the guilt-innocence phase[,] [a] defendant can seek more time to

prepare for the habitual question and still proceed on schedule for a speedy trial of the main

charge.” Williams, 735 N.E.2d at 789 (internal citation and quotation marks omitted).

       “Weatherford urges this court to consider that the prior holdings no longer control

here because the newer statute requires that a trial court must consider whether the belated

filing of the habitual offender prejudiced Weatherford’s substantial rights.” (Appellant’s

Br. p. 10). Because our consideration of Weatherford’s claim is based upon the statute in

effect as of the date he committed the crime charged, we decline to disregard the case law

that is interpretative thereof. Therefore, notwithstanding whether the trial court found good

cause for permitting the State to file the belated habitual offender charge, we find that

Weatherford’s failure to request a continuance has waived this issue for appeal.

                                      CONCLUSION

       Based on the foregoing, we conclude that the State presented sufficient evidence to

support Weatherford’s conviction for theft, and Weatherford has failed to preserve the issue

of the belated habitual offender filing for appeal.

                                              9
     Affirmed.

ROBB, J. and BRADFORD, J. concur




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