MEMORANDUM DECISION                                            FILED
                                                          Jun 23 2016, 8:11 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          CLERK
                                                           Indiana Supreme Court
regarded as precedent or cited before any                     Court of Appeals
                                                                and Tax Court

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
Barbara J. Simmons                                       Gregory F. Zoeller
Oldenburg, Indiana                                       Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kiaget Davis,                                            June 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1510-CR-1668
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda Brown,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G10-1412-CM-53583



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016   Page 1 of 5
[1]   Following a bench trial, Kiaget Davis was found guilty of one count of theft as

      a Class A misdemeanor. Davis appeals, arguing that the State’s evidence was

      insufficient to support her conviction.


[2]   We affirm.


                                   Facts & Procedural History


[3]   On December 2, 2014, Jovanny Fernandez was working as an associate in the

      loss prevention office of the Walmart located on Lafayette Road in Marion

      County. Through video surveillance, Fernandez watched Davis select

      merchandise off the shelf in the Health and Beauty section and then walk

      straight to self-checkout register forty-seven located at the south end of the

      store.


[4]   Fernandez observed Davis as she concealed two cosmetic items, without

      scanning or paying for them, in a Walmart bag she picked up next to the

      register. Davis then attempted to scan other items she had in her hand, but was

      unsuccessful. She called for an associate to help her and the associate

      proceeded to scan the items, but not the cosmetic items that were in the

      Walmart bag. Once finished with the transaction, Davis took the purchased

      and unpurchased items and walked toward the exit. When Davis passed the

      last point of sale, an officer stopped her and escorted her to an office where they

      were joined by Fernandez.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016   Page 2 of 5
[5]   Upon a search of her person, the officer found two more cosmetic items in

      Davis’s jacket sleeve. Davis stated that she purchased the cosmetics from a

      different Walmart located on 86th Street in Marion County. Fernandez

      attempted to verify the date Davis said the transaction transpired at the 86th

      Street Walmart, but was unsuccessful. Davis also stated that she may have

      purchased the cosmetics at Target. However, Fernandez was able to verify that

      the cosmetics came from Walmart—and not Target—when he scanned the

      Universal Product Code (UPC) on each item and obtained pricing information.

      Fernandez testified that each store has a different UPC and “when [Walmart]

      scan[s] an item from Target, [Walmart] [is] [not] going to have the price of the

      [Target] item.” Transcript at 24.


[6]   On December 2, 2014, the State charged Davis with Class A misdemeanor

      theft. On September 29, 2015, a bench trial was held and the trial court found

      Davis guilty of one count of theft as a Class A misdemeanor. That same day,

      the trial court imposed a sentence of three hundred sixty-five days with three

      hundred sixty-one days suspended and credit for two days served. Davis now

      appeals.


                                      Discussion & Decision


[7]   Davis argues that the State presented insufficient evidence to support the

      conviction for Class A misdemeanor theft. When reviewing the sufficiency of

      the evidence to support a criminal conviction, the reviewing court will

      “consider only the probative evidence and reasonable inferences supporting the


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016   Page 3 of 5
      conviction” and will not “reweigh the evidence nor assess witness credibility.”

      Holloway v. State, 983 N.E.2d 1175, 1177 (Ind. Ct. App. 2013). The reviewing

      court will affirm the conviction “unless no reasonable fact-finder could

      conclude the elements of the crime were proven beyond a reasonable doubt.”

      Id. Further, a conviction of Class A misdemeanor theft may be sustained by

      circumstantial evidence alone “if the circumstantial evidence supports a

      reasonable inference of guilt.” Hayworth v. State, 798 N.E.2d 503, 507 (Ind. Ct.

      App. 2003).


[8]   To sustain a conviction of theft as a Class A misdemeanor the State was

      required to prove that Davis “knowingly or intentionally exert[ed] unauthorized

      control over property of [Walmart], with intent to deprive . . . [Walmart] of any

      part of its value or use.” See Ind. Code § 35-43-4-2(a). To “exert control over

      property” means to “obtain, take, carry, drive, lead away, conceal, abandon,

      sell, convey, encumber, or possess property, or to secure, transfer, or extend a

      right to property.” I.C. § 35-43-4-1(a). Davis’s “control over property . . . is

      unauthorized” if it was “without . . . [Walmart’s] consent[.]” See I.C. § 35-43-4-

      1-(b)(1).


[9]   On appeal, Davis asserts that there is a reasonable doubt that she intended to

      exert unauthorized control over Walmart’s property. She essentially asks us to

      reweigh the evidence by arguing that it is plausible for her to have believed that

      she paid for all the items she had with her at the self-checkout and purchased

      the cosmetic items found in her jacket sleeve at another store.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016   Page 4 of 5
[10]   Fernandez was an eyewitness through video surveillance to Davis’s activities

       inside Walmart. He saw Davis take items off the shelf in the Health and Beauty

       section, conceal two cosmetics in a bag before paying for the other items, and

       then attempt to leave the store without paying for all the items. After Davis had

       passed the last point of sale, she was detained and additional items belonging to

       Walmart were found in her jacket sleeve. Additionally, Fernandez was able to

       verify through the UPC scanner that the cosmetics in Davis’s jacket sleeve came

       from Walmart and not Target.


[11]   From this evidence, a reasonable inference can be drawn that Davis intended to

       exert unauthorized control over Walmart’s property. We reject Davis’s

       invitation to reweigh the evidence or assess witness credibility. We therefore

       conclude that there was sufficient evidence to support Davis’s conviction for

       Class A misdemeanor theft.


[12]   Judgment affirmed.


[13]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016   Page 5 of 5
