Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         FILED
any court except for the purpose of                         Feb 23 2012, 8:53 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

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

                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

SANDRA RIVAS,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )    No. 49A02-1106-CR-544
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Kurt M. Eisgruber, Judge
                           The Honorable Steven J. Rubick, Magistrate
                                Cause No. 49F24-0907-FD-60699


                                        February 23, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
       Appellant-Defendant Sandra Rivas appeals from her conviction for Class D felony

Theft,1 contending that the State produced insufficient evidence to sustain her conviction.

We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On or about March 5, 2009, Beatriz Navelo returned home to find that her home had

been broken into and that her and her daughter‘s jewelry boxes had been taken. The jewelry

in the boxes was worth a few thousand dollars. Navelo had at one point owned a jewelry

store that sold, inter alia, custom jewelry made by her father, and some of the items stolen

were examples of that custom jewelry. Around June of 2009, Ismael Ramiraz, a former

customer at Navelo‘s jewelry store, saw some of her custom jewelry for sale in a pawnshop

and notified her. Navelo then notified police.

       Police determined that the custom jewelry had been sold by Rivas and accessed an

online database to discover if she had sold any other items recently. As it happened, between

March 11, 2009, and May 15, 2009, Rivas had sold thirty-one jewelry items at two

Indianapolis pawn shops. In a statement to police, Rivas claimed that she had traded stereo

speakers to two ―Hispanic guys‖ for the jewelry and had then sold some of it for $1000.

Rivas also told police that the men later wanted the jewelry back because the speakers did not

work and she gave them $500 and the remaining jewelry. Rivas provided police a telephone

number, claiming that it was for the men, which number turned out to be invalid or

disconnected. On July 1, 2009, the State charged Rivas with Class D felony theft. On May


       1
           Ind. Code § 35-43-4-2(a) (2008).

                                              2
25, 2011, the trial court found Rivas guilty as charged and sentenced her to 545 days of

incarceration, with 531 days suspended and 365 days of probation.

                             DISCUSSION AND DECISION

   Whether the State Produced Sufficient Evidence to Sustain Rivas’s Conviction

       When reviewing the sufficiency of the evidence to support a conviction, we consider

only the probative evidence and reasonable inferences supporting the verdict. Drane v. State,

867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder‘s role to assess witness credibility and

weigh the evidence to determine whether it is sufficient to support a conviction. Id. We

consider conflicting evidence in the light most favorable to the trial court‘s ruling. Id. We

affirm the conviction unless no reasonable fact-finder could find that the elements of the

crime were proven beyond a reasonable doubt. Id.

       In order to convict Rivas of theft, the State was required to prove that she ―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).

       [T]he mere unexplained possession of recently stolen property standing alone
       does not automatically support a conviction for theft. Rather, such possession
       is to be considered along with the other evidence in a case, such as how recent
       or distant in time was the possession from the moment the item was stolen, and
       what are the circumstances of the possession (say, possessing right next door
       as opposed to many miles away). In essence, the fact of possession and all the
       surrounding evidence about the possession must be assessed to determine
       whether any rational juror could find the defendant guilty beyond a reasonable
       doubt.

Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010).




                                              3
       It is not in dispute that Rivas was in possession of at least some of Navelo‘s jewelry

approximately six days after it was stolen. Moreover, although Rivas told police that she had

received the stolen jewelry from a couple of Hispanic men, the contact information for them

that she provided was either false or inaccurate, casting doubt on the entire story. Donovan v.

State, 937 N.E.2d 1223, 1227 (Ind. Ct. App. 2010) trans. denied (―Although Donovan said

that he had received the vehicle from ‗Paul Monroe‘ at the Pilot Truck Stop in Marshall

County, Indiana, and that Monroe asked him to transport the vehicle, Donovan could not

provide contact information for Monroe.‖). We conclude that the evidence of Rivas‘s

possession along with the surrounding evidence is sufficient to sustain her conviction.

       We note that even if Rivas‘s story about the Hispanic men were true, it would still be

sufficient to support her conviction for theft, because it is compelling evidence that she knew

that the jewelry was stolen when she received it. It is well-settled that a person may be

convicted of theft even if the evidence that she knowingly received the stolen items is

stronger than evidence that she was the actual thief.

       If the State meets its burden of proof with respect to all the necessary elements
       of either the theft or receiving stolen property offense as alleged in the
       charging instrument, it is of no consequence whether the accused was the
       person who actually took the stolen property from its authorized possessor
       because, once this burden is met, the State has proved that the accused,
       whether actual thief or not, has done precisely what is forbidden by both
       subsection (a) and (b) [of Indiana Code Section 35–43–4–2]—knowingly or
       intentionally exercising unlawful control over property of another with a
       purpose to deprive.

Gibson v. State, 643 N.E.2d 885, 892 (Ind. 1994).

       ―Knowledge that the property is stolen may be established by circumstantial
       evidence; however, knowledge of the stolen character of the property may not

                                              4
       be inferred solely from the unexplained possession of recently stolen
       property.‖ Johnson v. State, 441 N.E.2d 1015, 1017 (Ind. Ct. App. 1982). The
       test of knowledge is a subjective one, asking whether the defendant knew from
       the circumstances surrounding the possession that the property had been the
       subject of a theft. Purifoy v. State, 821 N.E.2d 409, 414 (Ind. Ct. App. 2005),
       trans. denied. Possession of recently stolen property when joined with
       attempts at concealment, evasive or false statements, or an unusual manner of
       acquisition may be sufficient evidence of knowledge that the property was
       stolen. Id.

Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct. App. 2005).

       According to Rivas, she traded very little (two stereo speakers) to persons she did not

know for jewelry, only a portion of which she was then able to sell for $1000 at pawn shops.

Trading stereo speakers to two unknown persons for jewelry worth at least $1000 is unusual,

to say the least. This unusual manner of acquisition indicates that, even if Rivas was not the

actual thief, she knew that the jewelry was stolen when she received it, which is sufficient to

sustain her conviction. See id. (concluding that evidence was sufficient to sustain conviction

for receiving stolen goods where defendant testified that he purchased videogame equipment

from unknown person in a fast food drive-through for $40 and was then offered $131 for

same items at nearby store soon thereafter). We conclude that the State presented sufficient

evidence to sustain Rivas‘s theft conviction.

       The judgment of the trial court is affirmed.

KIRSCH, J., and BARNES, J., concur.




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