Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                           May 28 2014, 9:35 am
any 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:

VALERIE K. BOOTS                                           GREGORY F. ZOELLER
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           LARRY D. ALLEN
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

MERCEDES JONES,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )     No. 49A02-1311-CR-962
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable William J. Nelson, Judge
                              Cause No. 49F18-1301-FD-1213


                                           May 28, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

        Pursuant to Indiana Post-Conviction Rule 2, Mercedes Jones (“Jones”) belatedly

appeals her conviction for Theft, as a Class A misdemeanor.1 We affirm.

                                                  Issues

        Jones presents two issues for review:

        I.      Whether there is sufficient evidence to support her conviction; and

        II.     Whether the trial court abused its discretion in the admission of evidence.

                                   Facts and Procedural History

        On January 4, 2013, Jones and Ronald Ferrell (“Ferrell”) entered an Indianapolis

Walmart and proceeded to the electronics department, where Ferrell selected merchandise.

Walmart employee Wesley Foddrill (“Foddrill”) was conducting video surveillance of the

electronics department, and noticed that the pair were looking around frequently. (Tr. 13.)

He also noticed that Ferrell appeared to be “randomly selecting” several types of video game

controllers. (Tr. 13.) Suspicious, Foddrill continued to watch the pair.

        Foddrill saw the pair proceed to a display of movies on DVD and make some

selections. They then went to the men’s clothing department, where Ferrell concealed some

of the DVDs and game controllers in his pants. At that time, Jones was standing “right in

front” of Ferrell and her eyes appeared to be pointing at him. (Tr. 15.) They proceeded to a




1
 Ind. Code § 35-43-4-2(a). At the time of Jones’s offense, the statute that Jones was charged with violating
provided that Theft was a felony. The trial court granted Jones’s request for alternative misdemeanor
sentencing.

                                                     2
clearance aisle and removed stickers. Foddrill then summoned Walmart employee Ana Tyree

(“Tyree”) to assist in the surveillance.

       After making additional selections of merchandise, Jones and Ferrell stopped at a self-

service checkout. Ferrell conducted three cash transactions and Jones conducted one. Jones

scanned an article of baby clothing and three containers of infant formula. The price tags

scanned were “switched” tags that had been attached to clearance items. (Tr. 16.)

       After Jones and Ferrell had passed all points of sale, they were stopped by Tyree and

Foddrill. In the asset protection office, Ferrell acknowledged that he had been detained

because of the DVDs and took them out of his pants. Jones said to Tyree: “I’m sorry, ya’ll.”

(Tr. 30.)

       Jones was convicted in a bench trial of theft and sentenced to 365 days imprisonment,

with 361 days suspended to probation. This appeal ensued.

                                  Discussion and Decision

                                Sufficiency of the Evidence

       Pursuant to Indiana Code section 35-43-4-2, a person who knowingly or intentionally

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

of any part of its value or use, commits theft. The State charged that Jones “did knowingly

exert unauthorized control over the property, to wit: DVD(s) and/or clothing and/or US

currency, of another person, to wit: Walmart, with the intent to deprive the person of any

part of its value or use.” (App. 17.) Jones argues that, because a Walmart employee testified

that the price paid for the baby clothing may have been correct, and there is no evidence that


                                              3
Jones stole currency, the sole remaining basis for the theft conviction is the DVDs.

According to Jones, the State failed to prove that she exerted unauthorized control over

DVDs belonging to Walmart. The State responds that there is ample evidence to support

Jones’s conviction of theft as an accomplice.

       When reviewing a claim of insufficiency of the evidence, we do not reweigh the

evidence or judge the credibility of the witnesses, but will consider only the probative

evidence and reasonable inferences supporting the judgment. Drane v. State, 867 N.E.2d

144, 146 (Ind. 2007). We will affirm the conviction unless no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt. Id.

       “A person who knowingly or intentionally aids, induces, or causes another person to

commit an offense commits that offense[.]” I.C. § 35-41-2-4. In determining accomplice

liability, the fact-finder can consider factors including: (1) presence at the scene of the

crime; (2) companionship with another engaged in a crime; (3) failure to oppose the

commission of the crime; and (4) the course of conduct before, during, and after the

occurrence of the crime. Wieland v. State, 736 N.E.2d 1198, 1202 (Ind. 2000). A

defendant’s presence during the commission of the crime or his failure to oppose the crime,

standing alone, are insufficient to establish accomplice liability; however, a fact-finder may

consider them along with the factors above to determine participation. Id. Moreover,

accomplice liability applies to the contemplated offense and all acts that are a probable and

natural consequence of the concerted action. Id.




                                              4
       The probative evidence supporting the judgment includes the following. Jones and

Ferrell entered the electronics department of Walmart together and both appeared to be

looking around for other people. Ferrell took several video controllers in what seemed to be

a random selection process; the pair jointly selected movies on DVD. They proceeded to the

men’s clothing area, where Ferrell concealed controllers and DVDs in his pants as Jones

looked at him. They then proceeded to a clearance aisle and obtained several tags from the

clearance items. They made merchandise selections and proceeded to a self-checkout where

they engaged in four cash transactions. Tyree was able to observe that, with the possible

exception of an article of baby clothing, incorrect prices for the items were scanned. For

example, a “six dollar thing of formula was rang up as a dog toy.” (Tr. 29.) When detained,

Ferrell acknowledged that he had concealed Walmart property and Jones apologized. There

is sufficient evidence from which the fact-finder could conclude that Jones and Ferrell were

engaged in a joint endeavor to deprive Walmart of its property.

                                 Admissibility of Evidence

       Jones contends that the trial court abused its discretion by admitting State’s Exhibit 2

into evidence. State’s Exhibit 2, an electronic print-out which does not bear the store name,

was described by Foddrill as a “receipt” that had been generated “on our smart system.” (Tr.

18-19.) The exhibit has individual entries for a “creeper” at $3.25, a “pink combo” at $1.25,

wax at .50, and “oops” at .50, for a total of $5.89. (State’s Exhibit 2.)




                                              5
       When Jones objected on hearsay grounds to the unauthenticated document, the State

argued that the exhibit qualified under the business records exception of Indiana Evidence

Rule 803(6). This rule provides for an exception to the hearsay rule for:

       [a] record of an act [or] event … if:

       (A) the record was made at or near the time by – or from information
       transmitted by – someone with knowledge;

       (B) the record was kept in the course of a regularly conducted activity of a
       business …;

       (C) making the record was a regular practice of that activity;

       (D) all these conditions are shown by the testimony of the custodian or another
       qualified witness, or by a certification that complies with Rule 902(9) or (10)
       or with a statute permitting certification; and

       (E) neither the source of information nor the method or circumstances of
       preparation indicate a lack of trustworthiness.

       “[T]he rule unequivocally requires the proponent of business records to establish, by

the testimony of the custodian or other qualified witness, that the records are regularly

made.” Ground v. State, 702 N.E.2d 728, 731 (Ind. Ct. App. 1998). Absent proof that the

records are regularly made, the proponent of the business records has not laid a proper

foundation for the records under the plain meaning of Rule 803(6), and they are inadmissible

under the hearsay rule. Id. Here, as Jones points out, there was no such specific testimony.

       However, “[w]e generally presume that in a proceeding tried to the bench a court

renders its decisions solely on the basis of relevant and probative evidence.” Coleman v.

State, 558 N.E.2d 1059, 1062 (Ind. 1990). This principle, known as the judicial-temperance

presumption, is broad but not without limits. Konopasek v. State, 946 N.E.2d 23, 28 (Ind.


                                               6
2011). On appeal, when a defendant has challenged the admissibility of evidence at a bench

trial and the evidence in fact was inadmissible, the judicial-temperance presumption “comes

into play.” Id. at 30. If a defendant overcomes the presumption, the reviewing court engages

in a full harmless-error analysis, that is, the error is harmless if the reviewing court is

satisfied that the conviction is supported by substantial independent evidence of guilt and

there is no substantial likelihood that the challenged evidence contributed to the conviction.

Id. (citing Meadows v. State, 785 N.E.2d 1112, 1122 (Ind. Ct. App. 2003), trans. denied). If

a defendant cannot overcome the presumption, the reviewing court presumes that the trial

court disregarded the improper evidence and thus finds the error to be harmless. Id.

         Because the admission of State’s Exhibit 2 lacked a proper foundation to establish it

as a business record, it should not have been admitted over Jones’s objection, and we must

determine if the error was harmless. Apart from the challenged receipt or print-out, the trial

court heard testimony from two Wal-Mart loss prevention employees. Foddrill had observed

Ferrell conceal Walmart items in his clothing. This took place in full view of Jones. Tyree

testified that she saw, during video surveillance, Ferrell and Jones pull price tags from

clearance items. She then observed Jones checking out merchandise with improper tags.

The State also introduced into evidence a surveillance video corroborating the employee

testimony.     We find there is no substantial likelihood that the challenged evidence

contributed to Jones’s conviction. As such, the admission of State’s Exhibit 2 is harmless

error.

                                         Conclusion


                                               7
       There is sufficient evidence to support Jones’s conviction for theft. Jones has

established no reversible error in the admission of evidence.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




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