MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                           Oct 20 2017, 5:29 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry A. Benyon,                                         October 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-570
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc Rothenberg,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G02-1610-F5-42328



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017       Page 1 of 14
                                          Case Summary
[1]   Terry Benyon (“Benyon”) appeals his conviction, following a jury trial, of

      count VII, theft, as a Level 6 felony,1 and his sentences for one count of corrupt

      business influence, as a Level 5 felony; 2 six counts of theft, as Level 6 felonies;3

      one count of attempted theft, as a Level 6 felony;4 and a habitual offender

      enhancement.5


[2]   We affirm in part, reverse in part, and remand with instructions.



                                                    Issues
[3]   Benyon raises the following two issues on appeal:


                 I.        Whether the State presented sufficient evidence to support
                           his conviction of count VII, theft, as a Level 6 felony.


                 II.       Whether his sentence is inappropriate in light of the nature
                           of the offenses and his character.




      1
          Ind. Code § 35-43-4-2(a)(1).
      2
          I.C. § 35-45-6-2.
      3
          I.C. § 35-43-4-2(a)(1).
      4
          Id.; I.C. § 35-41-5-1.
      5
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 2 of 14
                            Facts and Procedural History
[4]   Beginning in approximately April of 2016, Benyon began a streak of thefts from

      clothing stores around the Indianapolis area. Store surveillance videos captured

      Benyon engaged in many of these thefts. Benyon stole merchandise in large

      quantities and sold it “on the streets,” in gas stations, in Wal-Marts, in beauty

      shops, in barber shops, and in liquor stores. State’s Ex. 23 at 7. Benyon trained

      and used teenage accomplices—one as young as twelve years old—to carry out

      the thefts with him. He organized a system in which he would sell the

      merchandise in bulk and on “pay days” when he could “get rid of [it]” fast. Id.

      at 16.


[5]   On May 23, 2016, Benyon and a young female accomplice stole approximately

      200 pairs of underwear, valued between $9.50 and $16.50 each, from a Gap

      store at the Fashion Mall at Keystone, which resulted in a loss of between

      $1,900 and $3,300 for that store. On July 3, 2016, Benyon and a female

      accomplice stole approximately 200 pairs of underwear from the Victoria’s

      Secret store at the Castleton Square Mall, totaling a loss of $2,100 for that store.


[6]   On July 12, 2016, Benyon and a thirteen- or fourteen-year-old male accomplice

      returned to the Victoria’s Secret store at the Castleton Square Mall and

      committed another theft. An assistant store manager noted that something was

      “amiss” because she saw that Benyon’s bag was full of store items for which he

      had not paid. Tr. Vol. II at 62-63. The store manager followed Benyon and his

      accomplice. A store associate tried to stop Benyon, but Benyon ran away with


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 3 of 14
      the bag of merchandise. Several Victoria’s Secret employees and an employee

      from another store chased Benyon through the mall, but he fled into his truck

      and “erratic[ally]” and “very quickly” drove away. Id. at 85, 87. The store

      manager estimated that Benyon had stolen approximately 200 pairs of

      underwear, valued at $10.50 each, totaling a loss of about $2,000 for the store.


[7]   On August 5, 2016, Benyon went to the Victoria’s Secret store at the Circle

      Center Mall and committed a theft of approximately twenty “bralettes” worth

      $25 to $30 each. Id. at 100-101. Store employees chased Benyon through the

      mall, but he got away from them. On August 6, 2016, Benyon returned to the

      Gap store at the Fashion Mall and took approximately four drawers’ worth and

      two table tops’ worth of underwear from the store and placed them in a bag.

      Benyon left the store without paying for the merchandise which store

      employees valued at approximately $2,000.


[8]   On September 26, 2016, Benyon and a female accomplice went to the Ulta

      Beauty store located on Hardegan Street. At that store, Benyon took twenty-

      nine fragrances from the men’s fragrance area, which the store manager valued

      between $60 to $100 each, totaling a loss of about $2,865 for the store. On

      October 2, 2016, Benyon and a female accomplice stole approximately 560

      items of clothing from the Victoria’s Secret store at the Fashion Mall, totaling a

      loss of $7,000 for the store.


[9]   Sometime in October of 2016, the asset protection coordinator for Stein Mart,

      Diana Chiscon-Floyd (“Chiscon-Floyd”), became aware that someone was


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 4 of 14
       stealing Michael Kors coats from the Stein Mart store located at West 86th

       Street. The coats were each valued between $119.99 and $149.99. On October

       24, Chiscon-Floyd observed Benyon and a female accomplice enter the store

       and start “staging” the Michael Kors coats by moving them closer to the

       emergency exit door. Tr. Vol. II at 152. The female accomplice then left the

       store with Benyon and entered his truck, and Benyon then returned to the store

       by himself. Chiscon-Floyd recognized Benyon and his accomplice, and she

       called the police. The police arrived and arrested Benyon. The police searched

       Benyon’s truck pursuant to a search warrant, and they found a bag containing

       numerous pairs of underwear with tags still on them.


[10]   After waiving his Miranda rights, Benyon provided a statement to police in

       which he admitted to being “the thief”; admitted to reselling stolen

       merchandise; admitted to earning $600 per 200 pairs of stolen underwear;

       admitted to using the proceeds to pay for his rent, truck, and insurance;

       admitted to training and using teenage assistants to help him with the thefts;

       and noted that Victoria’s Secret used “little girls to play security in [the] stores”

       while placing “tens of thousands of dollars’ worth of merchandise in front of

       [him]” and “dar[ing him] to take it.” State’s Ex. 23 at 6, 18.


[11]   The State charged Benyon with multiple counts of theft and one count of

       corrupt business influence. At Benyon’s jury trial, the State introduced

       testimony of the various stores’ employees who witnessed the thefts, and some

       of the stores’ surveillance video tapes showing Benyon stealing merchandise.

       One of the admitted surveillance videos was of Benyon at the Victoria’s Secret

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 5 of 14
       store on August 5, 2016. That video showed that, during the course of about

       eighteen seconds, Benyon cleared off all of the bralettes lying on top of a table

       at the front of the store and placed them in a white bag. The merchandising

       manager at the store, Taryn Tibbs (“Tibbs”), testified that there was no

       merchandise in the drawers beneath the table. She testified that she had made

       eye contact with Benyon just as he had finished taking the items from the table,

       and she had then seen him leave the store without paying for the items. Tibbs

       and another manager had chased Benyon, but he had run down the stairs of the

       mall. Tibbs testified that there had been about twenty bralettes worth $25 to

       $30 each on the table at the time of the theft.


[12]   The jury found Benyon guilty of one count of corrupt business influence, as a

       Level 5 felony, six counts of theft, as Level 6 felonies, and one count of

       attempted theft, as a Level 6 felony. The jury found Benyon not guilty of two

       additional counts of theft, as Level 6 felonies. Benyon subsequently pled guilty

       to the habitual offender enhancement.


[13]   Benyon had a sentencing hearing on February 17, 2017, at the end of which the

       trial court noted that, while Benyon had expressed remorse for the crimes, it

       “was apparent” in Benyon’s statement to the police that Benyon “almost took

       pride in his [theft] setup.”6 Tr. Vol. III at 7. The court noted that Benyon had




       6
          For example, Benyon stated to police that he made $600 for 200 pairs of underwear and “that’s more
       [income] than most people bring home in a week.” State’s Ex. 22 at 10. He further stated to police that he
       “mock[ed] this country for its freedom … to move about and the fact that you would [l]ay tens of thousands

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017         Page 6 of 14
       stolen a large amount of inventory to supply his “corrupt business practice,”

       and his crimes involved multiple victims. Id. at 8. The trial court also noted

       that Benyon’s extensive criminal history, much of which involved similar

       crimes, was an aggravator. Specifically, the trial court pointed out that,

       including the instant convictions other than the habitual offender enhancement,

       Benyon had twenty-one felony convictions. The court also noted that, in the

       past, Benyon had been given “multiple opportunities at alternative

       sentencings.” Id. Given the aggravating circumstances, the trial court

       specifically found that “short term imprisonment” or a sentence split between

       imprisonment and alternative placements was warranted. Id. at 9-10.


[14]   The trial court sentenced Benyon to consecutive terms of five years’

       imprisonment for Level 5 felony corrupt business influence, with an additional

       two years for the habitual offender enhancement; two years for each of the six

       counts of Level 6 felony theft; and two years for Level 6 felony attempted theft.

       This resulted in an aggregate sentence of twenty-one years. The trial court

       ordered the sentences for three counts of Level 6 felony theft to be served in

       community corrections, the sentences for two other counts of Level 6 felony

       theft to be suspended to probation,7 and the sentences for one count of Level 6




       of dollars’ worth of merchandise in front of me[,] overprice it[,] … and dare me to take it[,]” while “using
       basically little girls to play security in your stores. … Why don’t you go and hire security[?]” Id. at 17-18.
       7
         The sentence for count VII, for which Benyon maintains there was insufficient evidence, was one of the
       sentences suspended to probation.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017               Page 7 of 14
       felony theft and attempted Level 6 felony theft to be entirely suspended, with no

       probation.


[15]   This appeal ensued.



                                  Discussion and Decision
                                  Sufficiency of the Evidence
[16]   Benyon challenges the sufficiency of the evidence to support his conviction on

       count VII, theft, as a Level 6 felony, for his theft of bralettes from Victoria’s

       Secret on August 5, 2016. Our standard of review of the sufficiency of the

       evidence is well-settled:


               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh evidence nor
               judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
               (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from
               such evidence.” Id. We will affirm if there is substantial
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

       Moreover, “[a] conviction may be based on circumstantial evidence alone so

       long as there are reasonable inferences enabling the factfinder to find the

       defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

       385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 8 of 14
[17]   To support Benyon’s conviction of theft, as a Level 6 felony, the State was

       required to prove beyond a reasonable doubt that: (1) Benyon; (2) knowingly or

       intentionally; (3) exerted unauthorized control over property of another person;

       (4) with the intent to deprive the other person of any part of its value or use; (5)

       and the value of the property was at least $750 and less than $50,000. I.C. § 35-

       43-4-2(a)(1)(A).8 Benyon contends that the State failed to provide sufficient

       evidence that the value of the property he stole from Victoria’s Secret on August

       5, 2016 was worth at least $750. We agree.


[18]   The only evidence of the value of the property stolen on August 5 was Tibbs’

       testimony and the surveillance video admitted as State’s Exhibit 6. Tibbs, the

       store merchandising manager, testified that the store surveillance video in

       Exhibit 6 showed Benyon clearing off bralettes on a table in the front of the

       store, putting them in a white bag, and then leaving the store without paying for

       them. Tibbs further testified that there were “like twenty” bralettes on the table

       on the day that Tibbs stole them, and she said they were worth between $25 to

       $30 each. Tibbs stated that there were no bralettes in the drawers under the

       table at the time Benyon stole the bralettes. Thus, even if we assume that each

       bralette was $30, the evidence established that the total value of the stolen




       8
         Subsection (a)(1) also provides that the crime of theft is a Level 6 felony if the person charged has a prior
       unrelated conviction for theft under that section. I.C. § 35-43-4-2(a)(1)(C)(i). The record shows that Benyon
       had eight unrelated prior convictions for theft under Indiana Code Section 35-43-4-2 during the period of
       June 1991 through January 2016. Appellant’s Conf. App. at 162-168. However, the challenged count VII
       does not base the Level 6 felony charge on prior unrelated convictions, but solely on the allegation that the
       value of the stolen property was at least $750 and less than $50,000. Id. at 26. And the jury verdict on that
       count found him “guilty of theft, a Level 6 felony, as charged in count VII.” Id. at 151 (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017             Page 9 of 14
       property was $600 at most, i.e., less than the $750 minimum necessary to

       convict Benyon of a Level 6 felony.


[19]   The State acknowledges that it “may have presented insufficient evidence to

       support [Benyon’s] conviction for one count of Level 6 felony theft.”

       Appellee’s Br. at 13. Nevertheless, it suggests that the jury could have properly

       inferred from the surveillance video that Benyon stole more than twenty

       bralettes and, therefore, at least $750 worth of property. However, any such

       inferences would be “pure speculation and devoid of evidentiary support.”

       Lane v. State, 175 Ind. App. 543, 372 N.E.2d 1223, 1226 (1978). The only

       evidence of the value of the stolen property establishes that it was less than

       $750. Therefore, the State has failed to prove an essential element of Level 6

       felony theft, and we reverse Benyon’s conviction on count VII.


[20]   However, Benyon’s challenge to the sufficiency of the evidence is directed only

       to the element of the value of the stolen property. Benyon does not challenge

       the evidence that he stole merchandise from Victoria’s Secret on August 5;

       rather, he merely points out that the evidence showed that the value of that

       merchandise was less than $750. Appellant’s Br. at 9-10. Thus, the evidence

       was sufficient to support a conviction for the lesser included offense of theft of

       property valued at less than $750, a Class A misdemeanor. I.C. § 35-43-4-2(a).


[21]   “On appeal, this Court may order a modification of the judgment of conviction

       to that of a lesser included offense because of an insufficiency of evidence on a

       particular element of the crime.” Baird v. State, 955 N.E.2d 845, 849 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 10 of 14
       App. 2011) (internal quotations and citations omitted). Therefore, we reverse

       Benyon’s conviction on count VII for theft, as a Level 6 felony, because the

       evidence was insufficient to sustain that conviction. However, we remand this

       case with instructions that the trial court enter a judgment on count VII of theft,

       as a Class A misdemeanor, sentence Benyon accordingly, and continue to treat

       the sentence for count VII as suspended to probation.


                               Inappropriateness of Sentence
[22]   Benyon maintains that his sentence is inappropriate in light of the nature of the

       offense and his character. Article 7, Sections 4 and 6 of the Indiana

       Constitution “authorize[] independent appellate review and revision of a

       sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

       Ct. App. 2007) (alteration original). This appellate authority is implemented

       through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

       7(B) requires the appellant to demonstrate that his sentence is inappropriate in

       light of the nature of his offenses and his character. See Ind. Appellate Rule

       7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

       the trial court’s recognition or non-recognition of aggravators and mitigators as

       an initial guide to determining whether the sentence imposed was

       inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

       However, “a defendant must persuade the appellate court that his or her

       sentence has met th[e] inappropriateness standard of review.” Roush, 875

       N.E.2d at 812 (alteration original). He must demonstrate that his sentence is



       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 11 of 14
       inappropriate in light of both the nature of the offense and his character.

       Baumholser v. State, 62 N.E.3d 411, 418 (Ind. Ct. App. 2016), trans. denied.


[23]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

       (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[24]   The trial court specifically found that the nature of Benyon’s offenses were such

       that they warranted imprisonment for at least part of his sentence. We agree.

       As the trial court noted, Benyon stole a very large amount of merchandise from

       multiple victims, and he did so in order to run his own “business” with stolen

       inventory. Benyon created and maintained an organized theft operation in

       which he trained and used teenagers—and one minor as young as twelve years

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 12 of 14
       old—to help him steal. His sentence was not inappropriate in light of the

       nature of his offenses.


[25]   Benyon also asserts that his sentence was inappropriate in light of his good

       character. Specifically, he points out that he has “acknowledged he has a

       problem stealing” and “would like to address that problem” through

       community corrections rather than incarceration. Appellant’s Br. at 12.

       Although the trial court noted that Benyon had expressed remorse, and that he

       had agreed to make restitution “if he can,” it also noted that it was apparent

       from Benyon’s statement to police that he “almost took pride in his [theft]

       setup.” Tr. Vol. III at 7, 9. In fact, in his statement to police, Benyon seemed

       to blame the stores’ lack of security for his crimes. That is hardly evidence of

       remorse. Moreover, Benyon has an extensive criminal history, with thirteen

       felony convictions, not including the eight felony convictions in the instant

       case. Eight of his past convictions were also for theft. And, although Benyon

       has received alternative sentences to prison in the past, he has violated

       probation multiple times and he has continued to commit crime after crime.

       None of this reflects well on his character. See, e.g., Garcia v. State, 47 N.E.3d

       1249, 1251 (Ind. Ct. App. 2015), trans. denied.


[26]   Benyon’s sentence is not inappropriate in light of the nature of his offenses and

       his character.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 13 of 14
                                               Conclusion
[27]   We reverse Benyon’s conviction on count VII for theft, as a Level 6 felony,

       because the evidence was insufficient to sustain that conviction. We remand

       this case with instructions that the trial court instead enter a judgment on count

       VII of theft, as a Class A misdemeanor, sentence Benyon accordingly, and

       continue to treat the sentence for count VII as suspended to probation. We

       affirm the trial court’s sentence of Benyon in all other respects, as it is not

       inappropriate in light of the nature of the offenses or his character.


[28]   Affirmed in part, reversed in part, and remanded with instructions.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-570 | October 20, 2017   Page 14 of 14
