MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                      May 26 2020, 11:22 am
court except for the purpose of establishing
the defense of res judicata, collateral                                             CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
estoppel, or the law of the case.                                                    and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Cara Schaefer Wieneke                                   Tina L. Mann
Wieneke Law Office, LLC                                 Deputy Attorney General
Brooklyn, Indiana                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Shawn Lyndell Lewis,                                    May 26, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2727
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable Gary J. Schutte,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        82C01-1908-F6-5567



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020                            Page 1 of 6
[1]   Shawn Lewis appeals his conviction for Level 6 Felony Theft,1 arguing that the

      evidence is insufficient to support the conviction. Finding the evidence

      sufficient, we affirm.


                                                    Facts
[2]   On July 25, 2019, at 2:10 a.m, Lewis entered a Walmart store riding an electric

      shopping cart with a large duffle-like black bag in the basket of the cart. The bag

      appeared empty when he entered the store. Lewis proceeded to the electronics

      department and backed up the cart towards a locked glass case that contained

      Apple products and headphones. After looking around, Lewis then turned

      toward the glass case, broke the lock, and took items out of the case and placed

      them in the bag in his cart; Lewis stopped removing items only when other

      shoppers were in the neighboring aisle.


[3]   Next, Lewis rode the cart with the now-full black bag away from the electronics

      case and back through the store, grabbing some of the plastic bags available at

      the checkout lanes in the garden center area of the store. He rode around the

      store some more and eventually rode toward the front of the store, entering a

      closed self-checkout area. Lewis then left the closed self-checkout area with the

      cart containing the black bag and plastic shopping bags he had grabbed from the

      checkout area and exited through the first set of double doors at the front of the

      store. He parked the cart off to the side and remained in that area for




      1
          Ind. Code § 35-43-4-2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020   Page 2 of 6
      approximately six minutes while he placed some items from his cart into the

      Walmart plastic shopping bags. He then walked out of the second set of double

      doors to the outside, carrying the shopping bags and wearing the black bag over

      his shoulders like a backpack. Lewis did not pay for anything before exiting the

      store.


[4]   Later that morning, loss prevention officer David Shepard arrived for work at

      the Walmart store and was informed about the empty electronics case and

      possible theft. Shepard reviewed the video footage and went to look at the glass

      electronics case, and found that “[i]t was empty and where the lock is supposed

      to be at, that sleeve was broken.” Tr. Vol. II p. 36. According to the probable

      cause affidavit, a few weeks later an officer was dispatched to the same

      Walmart store in response to a report of a customer refusing to leave; the

      customer was identified as Lewis and matched the appearance of the person in

      the surveillance footage from the night of the alleged theft. See Appellant’s App.

      p. 14.


[5]   On August 12, 2019, the State charged Lewis with two counts of Level 6 felony

      theft and one count of Class B misdemeanor possession of marijuana. 2 On

      September 26, 2019, the trial court granted Lewis’s motion to sever, and the

      jury trial held the next day proceeded on one theft charge. On September 27,

      2019, the jury found Lewis guilty of Class A misdemeanor theft. Following the



      2
       During a search incident to Lewis’s arrest, the searching officer discovered a small plastic baggie in Lewis’s
      wallet containing a leafy green substance that tested positive for marijuana. Appellant’s App. p. 14.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020                        Page 3 of 6
      verdict, Lewis pleaded guilty to an enhancement to a Level 6 felony due to a

      prior conviction. On October 22, 2019, the trial court sentenced Lewis to two

      years in the Department of Correction. Lewis now appeals.


                                   Discussion and Decision
[6]   Lewis’s sole argument on appeal is that the evidence is insufficient to support

      the conviction. More specifically, he argues that the evidence shows only that

      he removed the items from the glass electronics case, but that the State failed to

      present evidence showing the items were never actually purchased or otherwise

      left behind in the store.


[7]   In reviewing the sufficiency of the evidence to support a conviction, we must

      consider only the probative evidence and the reasonable inferences supporting

      the verdict, and we will neither assess witness credibility nor reweigh the

      evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless

      no reasonable factfinder could find the elements of the crime proved beyond a

      reasonable doubt. Id.


[8]   To convict Lewis of theft, the State had to prove beyond a reasonable doubt

      that Lewis “knowingly or intentionally exert[ed] unauthorized control over

      property of another person, with intent to deprive the other person of any part

      of its value or use.” I.C. § 35-43-4-2(a). To “exert control over property” in this

      context means “to obtain, take, carry, drive, lead away, conceal, abandon, sell,

      convey, encumber, or possess property.” I.C. § 35-43-4-1(a). A person’s control

      over another’s property is then “unauthorized” if the control is exerted without

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020   Page 4 of 6
       the other person’s consent. Id. § 35-43-4-1(b). Evidence that a person “concealed

       property displayed or offered for sale or hire” and “removed the property from

       any place within the business premises at which it was displayed or offered to a

       point beyond that at which payment should be made” constitutes prima facie

       evidence of intent to deprive the property owner of part of the property’s value

       and that the person exerted unauthorized control. I.C. § 35-43-4-4(c).


[9]    Here, the jury watched the store surveillance video footage showing Lewis

       entering the store with an electric shopping cart containing a black duffle-like

       bag, riding to the electronics section, breaking the lock to the glass case,

       removing items, and heaving the black bag back into the cart. The footage also

       showed Lewis then leaving the electronics section with the bag in his cart,

       riding around the store to the garden center, grabbing plastic shopping bags

       from a closed register, driving the cart into a closed self-checkout area

       unattended by employees, grabbing more empty plastic bags, and finally

       pausing between the two sets of exit doors to place some loose items in the

       shopping bags and exiting the store with the shopping bags and the now-full

       black bag. The video shows that Lewis made no attempt to proceed to an open

       register to make any purchases before leaving the store.


[10]   Lewis concedes that there is sufficient evidence to show he broke the lock to the

       glass case and removed the electronics from the case, but claims there is

       insufficient evidence that Lewis either did not actually purchase the items or

       “did not leave the items somewhere in the store.” Appellant’s Br. p. 8. The only

       case he cites for support is Purvis v. State, in which this Court found the evidence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020   Page 5 of 6
       was sufficient to support a conviction of theft where video surveillance footage

       showed the defendant taking video games, concealing them underneath his

       clothing and shopping cart, and leaving the store without stopping to pay for

       the concealed games. 87 N.E.3d 1119, 1122-23 (Ind. Ct. App. 2017), aff’d on

       reh’g. Lewis attempts to distinguish his case by emphasizing the fact that the

       Purvis defendant was ultimately found in possession of the items at his home

       more than a week later. Id. at 1123. But this argument ignores the portion of the

       opinion where we concluded that the video evidence showing the defendant

       taking and concealing video games, combined with the lack of evidence

       showing he either paid for the items or left them in the store, are “circumstances

       [that] alone would be sufficient to support the determination that Purvis

       knowingly or intentionally exerted unauthorized control over Walmart’s

       property with an intent to deprive Walmart of the property’s value.” Id. at 1124;

       see also K.F. v. State, 961 N.E.2d 501, 508 (Ind. Ct. App. 2012) (“[T]he theft

       statute does not require the State to prove that a defendant was found in

       possession of the stolen property or that the property was later recovered in

       order to find that a person committed theft.”).


[11]   As such, we find that the jury could reasonably conclude from the video footage

       evidence of Lewis that all statutory elements of theft were supported by

       sufficient evidence.


[12]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2727 | May 26, 2020   Page 6 of 6
