Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                             May 17 2013, 9:06 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:

NEIL L. WEISMAN                                    GREGORY F. ZOELLER
South Bend, Indiana                                Attorney General of Indiana

                                                   RICHARD C. WEBSTER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT V. ALLEN,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 71A03-1209-CR-408
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable John M. Marnocha, Judge
                              Cause No. 71D02-1201-FD-76


                                          May 17, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
       During the afternoon hours of January 20, 2012, Robert V. Allen and Terrence Young

took corrugated steel siding and an orange topped electrical box from a warehouse owned by

Michael Morris and attempted to sell the items to a nearby scrap yard. Morris had not given

Allen or Young permission to take or sell the items in question. Allen was subsequently

charged with and convicted of Class D felony theft. At trial, Allen acknowledged that he

took the items from Morris’s property, but argued that he mistakenly believed that the items

in question had been thrown away or abandoned by Morris. On appeal, Allen contends that

the State failed to present sufficient evidence at trial to sustain his conviction because the

State failed to disprove his mistake of fact defense. Concluding that the State met its burden

of disproving Allen’s mistake of fact defense, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       During the afternoon hours of January 20, 2012, Michael Morris was driving by a

warehouse he owned when he saw “two gentlemen with a grocery cart loading scrap out of

the north end of [his] building.” Tr. p. 89. Morris saw the men load “[s]crap metal and an

orange top electrical disconnect switch” in the cart. Tr. pp. 89-90. Morris noticed that the

men were pushing the grocery cart full of scrap in the direction of a nearby scrap yard. After

observing the men, Morris alerted an employee of the scrap yard that the two men were

heading toward the scrap yard and called police.

       Morris did not enter the warehouse at this time but rather continued to watch the men

until police arrived. Officer Andrew Hines responded to Morris’s call; spoke to Morris, who

pointed out Allen and Young; and approached the men, who by this time, were “on the scale

                                              2
where they receive their scrap metal at the scrap yard.” Tr. p. 91. Once Officer Hines

returned to the warehouse, he and Morris went to the part of the building where Morris had

first seen the men loading the scrap metal into the grocery cart. Morris and Officer Hines

followed footprints in the snow which went up to and inside Morris’s warehouse. Morris

noticed that the door to the warehouse had been pried open. Once inside the warehouse,

Morris and Officer Hines saw snowy footprints, and Morris noticed that steel siding and an

electrical control box were missing. Morris subsequently identified the items in the grocery

cart as the items that belonged to him and had come from inside his warehouse. Morris

indicated that he “absolutely” did not leave scrap outside of the warehouse. Tr. p. 98. He

further indicated that he did not know Allen or Young or give either of them permission to

take or sell the items in question.

       On January 21, 2012, the State charged Allen with Class D felony theft.1 The trial

court conducted a jury trial on July 12, 2012, after which the jury found Allen guilty as

charged. The trial court entered a judgment of conviction and sentenced Allen on August 29,

2012, to eighteen months incarceration with credit for time served. This appeal follows.

                                 DISCUSSION AND DECISION

       Allen contends that the evidence is insufficient to sustain his Class D felony theft

conviction. In challenging the sufficiency of the evidence to sustain his theft conviction,

Allen argues that the State failed to meet its burden of disproving his mistake of fact defense.

Allen argues that the jury should have been required to believe his testimony over that of


       1
           Ind. Code § 35-43-2-2(a) (2011).
                                               3
Morris and Officer Hines because where, as here, there is conflicting evidence that could

support two different interpretations, one of which is innocence, the jury is required to adopt

the interpretation consistent with innocence. However, contrary to Allen’s claim, it is well-

settled that in a criminal proceeding, “‘[t]he jury is free to believe whomever they wish.’”

McClendon v. State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996) (quoting Michael v. State, 449

N.E.2d 1094, 1096 (Ind. 1983)); see also Kocher v. State, 439 N.E.2d 1344, 1345 (Ind. 1982)

(providing that when the evidence is in conflict, the jury is free to believe whomever they

wish); Hammond v. State, 594 N.E.2d 509, 515 (Ind. Ct. App. 1992) (providing that the trial

court was not obligated to believe Hammond’s testimony), trans. denied.

       Pursuant to Indiana Code section 35-41-3-7, a mistake of fact defense “is a defense

that the person who engaged in the prohibited conduct was reasonably mistaken about a

matter of fact, if the mistake negates the culpability required for commission of the offense.”

Saunders v. State, 848 N.E.2d 1117, 1121 (Ind. Ct. App. 2006), trans. denied; see also Nolan

v. State, 863 N.E.2d 398, 404 (Ind. Ct. App. 2007), trans. denied.

       [W]e have held that, “[i]n order for mistake of fact to be a valid defense, three
       elements must be satisfied: (1) the mistake must be honest and reasonable; (2)
       the mistake must be about a matter of fact; and (3) the mistake must negate the
       culpability required to commit the crime.” Giles v. State, 699 N.E.2d 294, 300
       (Ind. Ct. App. 1998) (citing Potter v. State, 684 N.E.2d 1127, 1135 (Ind.
       1997)). Regarding the first element, our supreme court has stated that
       “[h]onesty is a subjective test dealing with what appellant actually believed.
       Reasonableness is an objective test inquiring what a reasonable man situated in
       similar circumstances would do. To require the giving of appellant’s
       instruction, we must find some evidence of both.” Davis v. State, 265 Ind.
       476, 355 N.E.2d 836, 839 (1976).

Nolan, 863 N.E.2d at 404.

                                              4
               When the State has made a prima facie case of guilt, the burden is on
       the defendant to establish an evidentiary predicate of his mistaken belief of
       fact, which is such that it could create a reasonable doubt in the fact-finder’s
       mind that the defendant had acted with the requisite mental state. Hoskins v.
       State, 563 N.E.2d 571, 575 (Ind. 1990). The State retains the ultimate burden
       of proving beyond a reasonable doubt every element of the charged crime,
       including culpability or intent, which would in turn entail proof that there was
       no reasonably held mistaken belief of fact. Id. at 575-76. In other words, the
       State retains the ultimate burden of disproving the defense beyond a reasonable
       doubt. Ringham v. State, 768 N.E.2d 893, 898 (Ind. 2002), reh’g denied;
       Nordstrom v. State, 627 N.E.2d 1380, 1383 (Ind. Ct. App. 1994), trans. denied.
       The State may meet its burden by directly rebutting evidence, by affirmatively
       showing that the defendant made no such mistake, or by simply relying upon
       evidence from its case-in-chief. Bergmann v. State, 486 N.E.2d 653, 660 (Ind.
       Ct. App. 1985).

Saunders, 848 N.E.2d at 1121.

       Whether Allen sufficiently raised a mistake of fact defense is a question for the trier of

fact. Id. On appeal, we review the issue by the same standard applied when the sufficiency

of the evidence to sustain a conviction is challenged. Id.

       That is, we do not reweigh the evidence or judge the credibility of witnesses.
       Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the
       probative evidence supporting the judgment and the reasonable inferences
       from that evidence to determine whether a reasonable trier of fact could
       conclude the defendant was guilty beyond a reasonable doubt. Id. We will
       uphold the conviction if there is substantial evidence of probative value to
       support it. Id.

Id.

       In the instant matter, the State charged Allen with Class D felony theft. In order to

convict Allen of this charge, the State was required to prove beyond a reasonable doubt that

Allen “knowingly or intentionally exert[ed] control over [the] property of another person,

with [the] intent to deprive the other person of any part of its value or use.” Ind. Code § 35-

                                               5
43-4-2. “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A person

engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

objective to do so.” Ind. Code § 35-41-2-2(a). “[T]he requisite intent may be presumed from

the voluntary commission of the act.” Mishler v. State, 660 N.E.2d 343, 348 (Ind. Ct. App.

1996).

         On appeal, Allen does not challenge the jury’s determination that he took the items in

question from Morris’s property. Allen merely claims that the evidence at trial was

insufficient to sustain his conviction because he presented evidence that negated the required

mental state. Allen testified at trial that on the afternoon of January 20, 2012, he and Young

were “walking through the alley, going to look for some scrap, you know, try to make an

honest day hustle.” Tr. p. 138. Allen testified that he and Young “ran up on that scrap”

which he claimed was “on the side of the alley” so they went to the scrap yard, “got a

buggy[,]” came back, and “loaded the stuff up.” Tr. p. 139. Allen further testified that he

thought “[s]omebody just throwed [the scrap] away.” Tr. p. 140. Allen stated that he thought

anything laying in the alley was free and stated that he didn’t think he was stealing. Allen

reiterated that he was “just trying to go outside and make an honest day’s hustle.” Tr. p. 142.

         Allen argues that his testimony proves that he did not knowingly or intentionally exert

control over the property of Morris with the intent to deprive Morris of the use or value of the

property. As such, he claims that because of his mistake of fact, i.e., that the property was

“throwed” away or abandoned, he could not be found to have the requisite mental state.

                                                6
Upon review, however, we conclude that the evidence in the State’s case-in-chief disproved

Allen’s mistake of fact defense beyond a reasonable doubt.

       In particular, Morris, the owner of the warehouse from which the items were taken,

testified that he was driving by his warehouse during the afternoon hours of January 20,

2012, when he saw “two gentlemen with a grocery cart loading scrap out of the north end of

[his] building.” Tr. p. 89. Morris watched then men load “[s]crap metal and an orange top

electrical disconnect switch” in the cart. Tr. pp. 89-90. Morris noticed that the men were

pushing the grocery cart full of scrap in the direction of a nearby scrap yard. The men were

soon thereafter approached by Officer Hines at the scrap yard where they were trying to sell

the items taken from Morris’s warehouse.

       Morris went with Officer Hines to the back of his building where he had first seen the

men loading the scrap metal into the grocery cart. Morris and Officer Hines followed

footprints in the snow which went from the direction of the scrap yard up to and inside

Morris’s warehouse. Morris noticed that that the door to the warehouse, which had been

locked with a pad lock, had been pried open. Morris waited for police to arrive before

entering the warehouse and testified that he entered the warehouse for the first time that day

when he entered with Officer Hines. Once inside the warehouse, Morris and Officer Hines

saw snowy footprints, and Morris noticed that steel siding and an electrical control box were

missing. Morris subsequently identified the items in the grocery cart as items that belonged

to him and had come from inside his warehouse. At trial, Morris testified that he

“absolutely” did not leave scrap outside of the warehouse, and that he did not know Allen or

                                              7
Young or give either of them permission to take the items. Tr. p. 98.

       In addition, Officer Hines testified that he intercepted Allen and Young on the scales

at the scrap yard with a grocery cart containing corrugated metal siding and an electrical box.

As Officer Hines subsequently returned to Morris’s warehouse, he saw “four wheel tracks

from presumably a grocery cart” and “several sets of tracks” in the snow that were coming

from Morris’s warehouse. Tr. p. 120. Officer Hines testified that when he and Morris

entered the warehouse, he saw snowy footprints inside Morris’s building that matched those

that left the property with the grocery cart. Also, another officer who responded to Morris’s

call, Officer Ronald Glon, testified that the footprints and shopping cart tracks that he saw,

which were coming from the direction of Morris’s warehouse in the direction of the scrap

yard, appeared to be fresh.

       Again, it is the prerogative of the fact-finder to weigh the evidence and to determine

who is telling the truth. Saunders, 848 N.E.2d at 1121-22 (citing Bergmann, 486 N.E.2d at

660). As such, the jury was not required to believe Allen’s testimony that he found the items

in question outside the building or that he believed the items had been thrown away or

abandoned. The testimony of Morris and Officers Hines and Glon is sufficient to disprove

Allen’s mistake of fact defense. Allen’s claim to the contrary amounts to nothing more than

an invitation for this court to reweigh the evidence and reassess witness credibility, which we

will not do. See id. at 1121. We therefore affirm Allen’s theft conviction.

       The judgment of the trial court is affirmed.

RILEY, J., and BROWN, J., concur.

                                              8
