Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                             Aug 21 2014, 9:27 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

KEVIN WILD                                       GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DARRYLL BEAMON,                                  )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )       No. 49A05-1312-CR-632
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                        APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Barbara Cook-Crawford, Judge
                                Cause No. 49F09-1309-FD-19671


                                       August 21, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                         Case Summary

        Darryll Beaman1 appeals his conviction for Class D felony theft. We reverse and

remand.

                                               Issue

       Beaman raises one issue, which we restate as whether the evidence is sufficient to

sustain his theft conviction.

                                               Facts

       On March 24, 2013, Delano Boling was working at the Deals store in Lawrence

when he saw Beaman put “something in his pocket” and noticed that Beaman had

“Benadryl or somethin’ like that” in his other hand. Tr. p. 15. As he walked to the next

aisle, Boling lost sight of Beaman, but then he saw Beaman walking toward the front

door of the store. Boling yelled for the store’s manager, and Beaman started running out

the door. Beaman did not have anything in his hands as he left the store. The manager

called the police, and they watched Beaman run toward a nearby field. Police officers

arrived quickly. Sergeant Tracy Easterday of the Lawrence Police Department noticed

Beaman walk out from behind a nearby warehouse. Beaman saw Sergeant Easterday and

quickly moved back behind the warehouse. When Sergeant Easterday yelled for Beaman

to stop, he started running. Beaman was soon apprehended, but he did not have any

merchandise from the store in his possession. The officers were unable to locate any

merchandise in the field or warehouse area either.


1
 Although the defendant’s name is spelled Beamon on the transcript and caption, he points out that his
name is actually spelled Beaman.
                                                  2
          The State charged Beaman with Class D felony theft, Class A misdemeanor

resisting law enforcement, and alleged that he was an habitual offender. Specifically

with respect to the theft charge, the State alleged that Beaman knowingly exerted

unauthorized control over Benadryl owned by Deals with the intent to deprive Deals of

any part of its value or use. After a bench trial, Beaman was found guilty as charged.

The trial court sentenced him to 365 days for the theft conviction enhanced by 545 days

for the habitual offender finding and a concurrent sentence of 365 days for resisting law

enforcement. The trial court ordered Beaman to serve 730 days of the sentence in

community corrections work release and 180 days suspended to probation. Beaman now

appeals.

                                                Analysis

          Beaman argues that the evidence is insufficient to sustain his conviction for Class

D felony theft.2 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.

          At the time of Beaman’s offense, Indiana Code Section 35-43-4-2(a) provided

that: “A person who knowingly or intentionally exerts unauthorized control over property

2
    Beaman does not appeal his conviction for Class A misdemeanor resisting law enforcement.
                                                    3
of another person, with intent to deprive the other person of any part of its value or use,

commits theft, a Class D felony.”       According to Beaman, there was no evidence

presented that he exerted unauthorized control over the store’s property. Beaman points

out that he was not seen leaving the store with any property, he did not have any such

property in his possession when he was arrested, and the officers failed to locate any of

the store’s property in the area where he was arrested. Beaman argues that evidence of

his flight from the scene is not sufficient to sustain the theft conviction. The State

responds that flight can be considered in determining a person’s guilt. According to the

State, Beaman’s flight from the store and from the officers combined with his actions in

the store support an inference that he took Benadryl from the store.

       We acknowledge that “[f]light and related conduct may be considered by a jury in

determining a defendant’s guilt.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001).

However, “[f]light alone is not sufficient to establish the necessary element of intent, but

flight, when combined with other circumstantial evidence, may sustain a finding of that

intent.”   Brown v. State, 168 Ind. App. 440, 444, 343 N.E.2d 790, 792 (1976).

Consequently, evidence of Beaman’s flight, without other circumstantial evidence, is

insufficient to sustain his conviction. The only other evidence presented by the State was

that Beaman was seen in the store putting “something in his pocket” and holding

“Benadryl or somethin’ like that” in his other hand. Tr. p. 15. However, Beaman was

not seen leaving the store with any merchandise, there was no testimony regarding any

missing merchandise, Beaman did not have any merchandise in his possession when he

was arrested, and the officers were unable to locate any merchandise in the area where

                                             4
Beaman was found. There is simply no evidence that Beaman exerted unauthorized

control over the store’s property. “A reasonable inference of guilt must be more than a

mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.” Meehan v.

State, 7 N.E.3d 255, 257 (Ind. 2014). It was mere suspicion that Beaman took Benadryl

from the store. As a result, we conclude that the evidence is insufficient to sustain

Beaman’s conviction for Class D felony theft.

                                      Conclusion

      The evidence is insufficient to sustain Beaman’s conviction for theft. As a result,

the habitual offender finding cannot stand. We reverse and remand for resentencing on

Beaman’s conviction for resisting law enforcement.

      Reversed and remanded.

BRADFORD, J., and BROWN, J., concur.




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