Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                              Aug 08 2013, 5:22 am

regarded as precedent or cited before 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:

ELIZABETH A. BELLIN                             GREGORY F. ZOELLER
Elkhart, Indiana                                Attorney General of Indiana

                                                JUSTIN F. ROEBEL
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TIMOTHY R. THACKER,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 20A03-1212-CR-558
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Charles C. Wicks, Judge
                             Cause No. 20D05-1109-FD-291



                                      August 8, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          After accompanying some friends to collect refrigerator coils belonging to

Dometic, an Elkhart business, for “scrapping,” Timothy R. Thacker was arrested and

charged with Theft1 and Receiving Stolen Property,2 both class D felonies. Following a

jury trial, Thacker was convicted on both counts.                      He now appeals, arguing that

insufficient evidence existed to support the jury’s verdict on the theft count and that at

least one of his convictions must be vacated based on principles of double jeopardy.

          We conclude that although the State’s witnesses presented at least three different

factual scenarios describing the extent of Thacker’s involvement, there was sufficient

evidence presented for the jury to have concluded that Thacker knowingly exerted

unauthorized control over the refrigerator coils with the intent to deprive Dometic of their

value.      Thus, sufficient evidence existed to support the theft conviction. However,

because the State concedes that Thacker’s convictions for both theft and receiving stolen

property violate principles of double jeopardy, we remand with instructions to the trial

court to vacate one of Thacker’s convictions and the corresponding sentence.

          Accordingly, we affirm in part, reverse in part, and remand with instructions.

                                                   FACTS

          On September 23, 2011, Thacker and three friends—Christian Ward, Patrick

Weaver, and B.L.3—were arrested at the home of Christian Ward after they were found


1
    Ind. Code § 35-43-4-2(a).
2
    I.C. § 35-43-4-2(b).
3
    Because B.L. is a minor, we will use his initials rather than his full name. See Ind. Admin. Rule 9.
                                                       2
by police officers with Dometic refrigerator coils in Ward’s garage. After his arrest,

Thacker waived his right to remain silent and provided a statement to police. He was

subsequently charged with class D felony theft and class D felony receiving stolen

property.

      A two-day jury trial commenced on October 18, 2012. During the trial, the State’s

witnesses provided at least three different accounts of the extent of Thacker’s

involvement in the theft of the refrigerator coils on September 22-23, 2011.

      More specifically, Weaver testified that he was with Thacker at Thacker’s

mother’s house on September 23, 2011, when Ward and B.L. arrived and announced that

they were going “scrapping.” Tr. p. 88. All four young men rode in Ward’s vehicle to

the edge of the railroad tracks approximately two or three blocks from Ward’s home, and

at that point, they began walking along the tracks. Weaver waited on the tracks while the

others went into the woods, and approximately fifteen minutes later, Ward came “running

out of the woods” as if he was “freaked out” about something, and the others followed.

Id. at 89-90. Ward and B.L. were each carrying refrigerator coils, and Weaver heard

Ward yell that “he saw someone or something like that.” Id. at 90. The four young men

then walked back to Ward’s vehicle, where Weaver helped Thacker load one of the coils

into the trunk. When they returned to Ward’s home, Ward and B.L. unloaded the coils

into Ward’s garage, and Weaver told Thacker that he wanted to leave because he “had

kind of a suspicion then” that the coils were stolen based on a conversation he heard

between Ward and B.L. about “some stuff they had done like a couple of days earlier.”

                                            3
Id. at 96. However, the police arrived and arrested all four of them before Weaver and

Thacker could leave. Id. at 92.

      B.L. testified that on September 22, 2011, he, Ward, and another young man

“were looking for stuff to make some money so [they] were just like wandering through

the woods and looking for metal to scrap and stuff and broke into some trailers and put

some – I don’t even know what they’re called – into the woods . . . to get them the next

day.” Tr. p. 103. The following day, B.L., Ward, Thacker, and Weaver rode in Ward’s

vehicle to a location close to where B.L. and Ward had left the coils, and they all walked

along the railroad tracks before Ward and Thacker went into the woods to bring the coils

back out to the tracks. When Ward and Thacker returned, they were walking “kind of

fast but not really that fast,” and each of the four young men helped carry the coils to

Ward’s vehicle. Id. at 105. Thacker got directly into the vehicle while Ward, Weaver,

and B.L. loaded the coils into the trunk, and Ward and B.L. unloaded the coils into

Ward’s garage when they returned.

      The statement that Thacker provided to the police on the date of his arrest was

conveyed to the jury through the testimony of Detective Tom DeWitt of the Elkhart

Police Department. According to Detective DeWitt, Thacker’s statement indicated that

he was with Ward on September 22, 2011, when Ward “had come to him and [told him

that] he knew where there was some metal [they] could scrap.” Tr. p. 123. Thacker went

with Ward onto the railroad tracks, but he stayed on the tracks while Ward went into the



                                            4
woods. “A few minutes later there was some yelling[, and Ward] came back and they

both left” without any metal to scrap. Id.

       Thacker’s statement further provided that on September 23, 2011, Thacker was at

his mother’s house when Ward showed up with B.L. and Weaver, and they all went to the

same location where refrigerator coils had been stacked behind a building. Ward “told

[Thacker] that the two of them would grab the three that were stacked and the kid could

grab the one and they started down the tracks with these items.” Id. at 123-24. They

walked about eighty yards before “a man on a fork lift then yelled at them to stop, [and]

they dropped everything and . . . took off running.” Id. at 124. They then went back to

Ward’s home, where Thacker observed different refrigerator coils in Ward’s garage and

asked Ward if they were stolen. Although Ward said they were not, Thacker “still

figured they were probably stolen.” Id.

       Other witnesses, including several police officers involved in the theft

investigation, an employee of Dometic, and a woman who lived close to where Ward’s

car was left, provided additional details about the incident. The testimony of these

witnesses indicated that the stolen refrigerator coils had been stored in a trailer on

Dometic’s property near the edge of the woods, and that on September 23, 2011, an

employee of a business located next to Dometic observed two white males leaving that

storage area with Dometic property at approximately 12:15 p.m. and called the police.

       Officer James Peterson responded to Dometic after being dispatched there

regarding a theft in progress. Once he was at the scene, Officer Peterson noticed that two

                                             5
different trailers appeared to have been opened recently, and he observed shoe

impressions leading into one of the trailers and near an opening in a chain link fence at

the edge of Dometic’s property. From that point, Corporal Chris Snyder and his canine

partner Zantos tracked a scent along the railroad tracks through a wooded area, and a

woman whose home abutted the trail told the officers that several boys had just passed

by. Zantos continued to track the scent to the intersection of Graywood Street and

Superior Street in Elkhart, where four different sets of footprints were observed leading

from the woods to the intersection. It was at this location that the scent was lost, but a

neighbor told the police that a “junky white car” had been sitting at the intersection and

that she recognized the vehicle “as belonging to a Christian.” Tr. p. 60.

       This information was relayed to dispatch, and the officers were informed that

Ward lived at the corner of Graywood and Jackson. Ward’s white car and four male

suspects, including Thacker, were located at the address provided.          After obtaining

consent to search the premises, police officers discovered refrigerator coils in Ward’s

garage. Each of the coils had serial numbers indicating that they belonged to Dometic

and looked “brand new.”        The police officers arrested each of the young men in

connection with the theft of the coils.

       At the conclusion of Thacker’s trial, the jurors returned a guilty verdict on both

counts, and Thacker was subsequently convicted of both class D felony theft and class D

felony receiving stolen property and sentenced to concurrent terms of eighteen months of



                                             6
incarceration. Thacker’s counsel asked for the convictions to merge, but the trial court

denied this request. Thacker now appeals.

                             DISCUSSION AND DECISION

                               I. Sufficiency of the Evidence

       Thacker first contends that the State presented insufficient evidence to convict him

of theft. More particularly, Thacker claims that “there was no evidence presented to

show that the Defendant himself had gone onto Dometic’s property and took the coils.”

Appellant’s Br. p. 6.

       In analyzing Thacker’s claim, we apply this well-settled standard of review:

       When reviewing a claim of insufficient evidence, an appellate court neither
       reweighs the evidence nor judges the credibility of the witnesses as this is
       the exclusive province of the jury. We consider only the evidence most
       favorable to the State together with all reasonable and logical inferences
       which may be drawn therefrom. “If a reasonable finder of fact could
       determine from the evidence that the defendant was guilty beyond a
       reasonable doubt, then we will uphold the verdict.”

Lyles v. State, 970 N.E.2d 140, 142 (Ind. 2012) (internal citations omitted).

       To convict Thacker of class D felony theft, the State was required to prove that he

“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.” Ind. Code

§ 35-43-4-2(a).    And Indiana Code section 35-41-2-2(b) provides that “[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.”



                                             7
       Here, the evidence most favorable to the judgment is that Thacker went with three

others to collect metal for scrapping on property that was not owned by any of the young

boys. Tr. p. 90, 105, 123. Thacker admitted that he and Ward were caught in possession

of refrigerator coils by a fork lift driver, who yelled at them to stop. Id. at 124. Although

Thacker claims that they then dropped the coils and ran back to Ward’s car empty-

handed, two other witnesses testified that refrigerator coils were taken that day and

ultimately unloaded into Ward’s garage. Id. at 90-91, 105-08. A reasonable inference

from these facts is that Thacker knowingly exerted unauthorized control over the

refrigerator coils with the intention of depriving Dometic of their future use. Despite the

varied accounts provided by the witnesses, it is the jury’s province to weigh the evidence,

and we cannot give credence to Thacker’s requests that we engage in reweighing that

evidence. Thus, Thacker’s sufficiency claim fails.

                                   II. Double Jeopardy

       Thacker’s next claim is that his convictions for both theft and receiving stolen

property violate Article I, Section 14 of the Indiana Constitution, which provides, “No

person shall be put in jeopardy twice for the same offense.”            In interpreting this

provision, our Supreme Court has said that “two or more offenses are the ‘same offense’ .

. . if, with respect to either the statutory elements of the challenged crimes or the actual

evidence used to convict, the essential elements of one challenged offense also establish

the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d

32, 49 (Ind. 1999).

                                             8
        Here, the State concedes that “the deputy prosecutor did instruct the jury that it

could convict Defendant of both theft and receiving stolen property based on Defendant’s

acts of carrying the refrigerator coils away from the Dometic property.” 4 Appellee’s Br.

p. 9 (citing Tr. p. 136-39, 141). Indeed, the State’s brief avers, “[t]his argument does

support Defendant’s claim of double jeopardy.” Id. We agree with the State and remand

this cause to the trial court with instructions to vacate one of Thacker’s convictions and

the corresponding sentence.5

        The judgment of the trial court is affirmed in part, reversed in part, and remanded

with instructions.

MAY, J., and MATHIAS, J., concur.




4
  Indiana Code section 35-43-4-2(b) provides: “A person who knowingly or intentionally receives,
retains, or disposes of the property of another person that has been the subject of theft commits receiving
stolen property, a Class D felony.”
5
  Typically, we would direct the trial court to “vacate the conviction with the less severe penal
consequences.” Richardson, 717 N.E.2d at 55. However, because in this case both convictions are class
D felonies for which the defendant was given equal concurrent sentences, we leave it to the discretion of
the trial court to determine which conviction and sentence should be vacated on remand.
                                                    9
