MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                                Oct 01 2019, 5:44 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
William T. Myers                                         Curtis T. Hill, Jr.
Whitehurst & Myers Law                                   Attorney General of Indiana
Marion, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jennifer M. Culver,                                      October 1, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2661
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jennifer E.
Appellee-Plaintiff.                                      Newton, Judge
                                                         Trial Court Cause No.
                                                         35D01-1803-F6-48



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019                  Page 1 of 6
                                       Statement of the Case
[1]   Jennifer M. Culver appeals her conviction for theft, as a Level 6 felony,

      following a jury trial. Culver raises one issue on appeal, namely, whether the

      State presented sufficient evidence to support her conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 6, 2018, Culver and her two children went to Los Amigos

      restaurant for dinner. Culver ordered a chalupa, a child’s cheese quesadilla,

      and two drinks. When the food arrived, Culver questioned her waiter whether

      the chalupa being served was actually a chalupa. Accordingly, Culver’s waiter

      asked Ramiro Escamilla, the restaurant’s manager, to speak to Culver.

      Escamilla explained to Culver that she had received a chalupa, as ordered, but

      that the chalupa was simply a different shape than what she was used to getting

      at other restaurants. He offered to either replace the chalupa with something

      else or to remove the food and take it off of her bill. In response, Culver said:

      “no, that’s fine, that’s ok.” Tr. Vol. II at 29. Escamilla asked if Culver was

      sure and again offered to get her something else. Culver again declined

      Escamilla’s offer. Escamilla then left Culver and her children to eat.


[4]   Escamilla returned to Culver’s table approximately ten or fifteen minutes later.

      When he arrived, Escamilla noticed that the “[p]lates were clean.” Id. at 30.

      Escamilla then directed Culver’s waiter to leave the bill, which totaled $11.73.

      Escamilla saw the waiter leave the bill on Culver’s table. He then watched

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019   Page 2 of 6
      Culver and her children “briskly walk” out of the restaurant without stopping at

      the cash register to pay. Id. at 49. Escamilla went to Culver’s table and “looked

      around” because “sometimes people do leave money” on the table. Id. at 32.

      Escamilla saw the bill, but he did not see any money. He then took the bill and

      went outside. Culver was at her van, and Escamilla told her that she forgot to

      pay her bill. In response, Culver said: “I’m not paying for that shit.” Id. at 33.

      Escamilla then wrote down Culver’s license plate number and called the police.


[5]   Officer Clayton Baker with the Huntington City Police Department responded

      to Escamilla’s call. Officer Baker ran the license plate number Escamilla had

      provided to him, and the results confirmed that the van belonged to Culver.

      Officer Baker then called Culver approximately five times but was unable to

      speak with her. Officer Baker left Culver a voicemail telling her that Los

      Amigos wanted her to pay her bill and, if she did, they would not pursue legal

      action. A few days later, after Culver had failed to return his call, Officer Baker

      called again and left a similar voicemail. When Culver still did not return his

      call, Officer Baker asked Deputy Marshall Jeremy Goff with the Roanoke

      Police Department to contact Culver. Deputy Marshall Goff spoke with Culver

      at her place of employment, gave her the Huntington City Police Department’s

      phone number, and asked her to call them about an unpaid restaurant bill.

      Culver never called Officer Baker.


[6]   The State charged Culver with one count of theft, as a Level 6 felony. At

      Culver’s ensuing jury trial, the State presented as evidence Escamilla’s

      testimony. Escamilla testified that, while he offered to remove the uneaten

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019   Page 3 of 6
      food from Culver’s table and remove it from the bill when she initially

      complained about the food, he never indicated to her that she did not have to

      pay for food that she and her children ate. He further testified that, when he

      went back to check on Culver and her children, “all the food was eaten.” Id. at

      55. In her defense, Culver presented her testimony and the testimony of her

      son. Culver testified that one of the waiters at the restaurant had told her that

      she did not need to pay for the complained-of food. She further testified that

      she had left ten dollars on the table, which she believed was “more than

      enough” to cover the remainder of her bill. Id. at 93. Culver’s son also testified

      that Culver had left ten dollars on the table.


[7]   At the conclusion of the first phase of the trial, the jury found Culver guilty of

      theft. During the second phase, Culver admitted that she had a prior, unrelated

      conviction for theft. Accordingly, the trial court entered judgment of conviction

      against Culver for theft, as a Level 6 felony, and sentenced her accordingly.

      This appeal ensued.


                                     Discussion and Decision
[8]   Culver contends that the State failed to present sufficient evidence to support

      her conviction. Our standard of review on a claim of insufficient evidence is

      well settled:


              For a sufficiency of the evidence claim, we look only at the
              probative evidence and reasonable inferences supporting the
              verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
              not assess the credibility of witnesses or reweigh the evidence. Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019   Page 4 of 6
               We will affirm the conviction unless no reasonable fact-finder
               could find the elements of the crime proven beyond a reasonable
               doubt. Id.


       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


[9]    To prove that Culver committed theft, as a Level 6 felony, the State was

       required to show that Culver knowingly or intentionally exerted unauthorized

       control over the property of another person with the intent to deprive the other

       person of any part of its value and that Culver had a prior unrelated conviction

       for theft. Ind. Code § 35-43-4-2(a)(1) (2018). On appeal, Culver contends that

       the State presented insufficient evidence to prove that she exerted unauthorized

       control over the restaurant’s property. Specifically, Culver contends that the

       State failed to present sufficient evidence to support her conviction because she

       and her ten-year old son both testified that “she left $10 on the table” before she

       left the restaurant and because she testified that “one of the waiters told her that

       she didn’t have to pay for the food[.]” Appellant’s Br. at 10.


[10]   We acknowledge that both Culver and her son testified that Culver left money

       on the table. However, it was the jury’s responsibility to judge the credibility of

       the witnesses, and the jury was free to disbelieve or discount their testimony

       given the other evidence. Culver’s argument on appeal is simply a request that

       we reweigh the evidence, which we cannot do. Rather, the evidence most

       favorable to the trial court’s judgment demonstrates that Culver and her two

       children went to Los Amigos restaurant for dinner, ordered, ate the food that

       was delivered, and then left without paying the bill. Specifically, Escamilla

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019   Page 5 of 6
       testified that, when Culver complained that she did not receive the food she had

       ordered, Escamilla offered to either replace the food with something else or

       remove the uneaten food and take it off of her bill. However, in response to

       Escamilla’s offer, Culver said that things were “fine.” Tr. Vol. II at 29. Indeed,

       when Escamilla returned to Culver’s table ten or fifteen minutes later, he

       noticed that the “[p]lates were clean” and that “they finished their food[.]” Id.

       at 30, 55. Escamilla also testified that, after the waiter placed the bill on

       Culver’s table, she left the restaurant without paying. And, when Escamilla

       followed her to the parking lot to ask her to pay, she responded that she was

       “not paying for that shit.” Id. at 33. Further, Culver continued to refuse to pay

       the bill even after Officer Baker told her in at least two voicemails that Los

       Amigos would not pursue legal action if she paid her bill. Based on that

       evidence, we conclude that a reasonable fact-finder could conclude that Culver

       committed theft, as a Level 6 felony. We affirm Culver’s conviction.


[11]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2661 | October 1, 2019   Page 6 of 6
