MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Dec 29 2015, 8:49 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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Joel M. Schumm                                          Gregory F. Zoeller
Ellen N. Pactor, Certified Legal Intern                 Attorney General of Indiana
Indiana University Robert H. McKinney
School of Law Appellate Clinic                          Christina D. Pace
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dianna Fargo,                                           December 29, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1504-CR-238
        v.
                                                        Appeal from the Marion Superior
                                                        Court
State of Indiana,
                                                        The Honorable William J. Nelson,
Appellee-Plaintiff.                                     Judge

                                                        The Honorable Shannon L.
                                                        Logsdon, Commissioner
                                                        Trial Court Cause No.
                                                        49F18-1311-FD-35194



Najam, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 1 of 10
                                       Statement of the Case
[1]   Dianna Fargo appeals her conviction for theft, as a Class D felony, following a

      bench trial. She raises three issues for our review, namely:


              1. Whether the State presented sufficient evidence to support her
                 conviction.


              2. Whether the trial court erred in considering inadmissible
                 hearsay evidence.


              3. Whether the trial court shifted the burden of proof to Fargo.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 23, 2013, Latonya Ball, the pet products manager at an

      Indianapolis PetSmart store, was providing customer service on the sales floor.

      Ball’s duties as a pet products manager included inventory control and loss

      prevention. While working that day, Ball offered assistance to a customer later

      identified as Fargo. During a short conversation with Fargo about some of

      PetSmart’s products, Ball noted that Fargo had a shopping cart full of items,

      including large bags of pet food and cat litter. Ball also noted that Fargo was

      behaving nervously which Ball knew through her training was a sign of a

      potential thief.


[4]   From that point forward, Ball maintained constant surveillance of Fargo’s

      movements throughout the store. Ball saw Fargo place “a few” items from the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 2 of 10
      “human” section of the store into her shopping cart. Tr. at 18-19. Ball then

      observed Fargo walk, with her cart, through the pet care section, past the

      adoption center, and out the front door of the store without having paid for any

      of the items in her cart. Ball observed Fargo walk toward a red car in the

      parking lot and unload the items from her cart into the car. Several PetSmart

      employees knew Fargo and identified her as the person Ball had seen leaving

      the store. Ball then called the police. When the police arrived, Fargo had

      already left the store’s parking lot.


[5]   The State subsequently charged Fargo with theft. At the March 25, 2015,

      bench trial, Ball testified that she was unable to identify exactly what items

      Fargo had allegedly stolen because she could not see every item in Fargo’s

      loaded cart, and she was unable to tell what was stolen through a weekly

      “inventory count.” Id. at 24-25. However, Ball testified she had seen Fargo put

      items from the “human” section of the store into her shopping cart. Id. at 18-

      19. Ball also testified that, after Fargo had left the store, Ball had asked the

      cashiers whether Fargo had come through their cashier lines and the cashiers

      had said no. Defense counsel objected to this testimony as hearsay, and that

      objection was sustained. However, on cross-examination, Fargo’s counsel

      elicited testimony from Ball that Ball had asked the cashiers, including one

      named Alexis, whether Fargo had gone through their cashier lines. Ball

      testified that Alexis had said Fargo had not gone through her line, and there

      was no objection to this statement.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 3 of 10
[6]   Fargo testified and denied having stolen any items from PetSmart. She testified

      that, on the day in question, she had checked out and paid in cash for the items

      with a PetSmart cashier named Deanna, whom Fargo knew from her own

      previous employment at PetSmart. Fargo had ceased her employment with

      PetSmart in January 2013. Fargo stated that she did not keep the receipt from

      her purchases on February 23, 2013.

[7]   The trial court found Fargo guilty of theft, as a Class D felony. In reaching this

      decision, the trial judge noted that she found Ball to be a more credible witness

      than Fargo. The trial court also stated that Ball’s testimony that all of the

      cashiers said Fargo did not check out with any of them had come into evidence

      on Fargo’s cross-examination of Ball. In particular, the trial court stated as

      follows:


              And that came out on cross. It was objected to and sustained
              during direct and then on cross it came out that she did ask those
              cashiers that and that no one had said that they had you pay
              anything at their—or had come through their register.


      Id. at 45. The trial court continued as follows:


              It would seem to me that you’ve been charged with this crime
              since December 9th I believe was your initial hearing of 2013,
              and if you paid and went through somebody’s register that you
              would then present that person to say, Yes, I did pay, if you felt
              that. Not that you have a responsibility to prove anything to the
              Court, but if that’s your defense that yes, you did pay, and you’re
              wanting to dispute the evidence that someone watched you walk
              out of the store without paying for anything, that you might have


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 4 of 10
              that person that you seem to know so well come in and say,
              Yeah. I had her pay at my register.


                                                     ***


              [B]ased on the testimony that none of the cashiers said that you
              went through them [sic]—I have no choice at this point. I find
              Ms. Ball more credible than I find you today. So I’m going to
              find you guilty of Theft as charged in Count One.


      Id. at 45-46, 48. This appeal ensued.


                                     Discussion and Decision
[8]   Fargo argues the State failed to carry its burden of proving she committed theft

      because there was insufficient evidence that any items were taken from the

      store. Fargo also contends that the trial court erred by relying on inadmissible

      hearsay evidence and shifting the burden of proof onto Fargo. We address each

      of these arguments in turn.


                                          Sufficiency of Evidence

[9]   Fargo asserts that the State presented insufficient evidence to support her

      conviction for theft. When reviewing a claim of sufficiency of the evidence, we

      do not reweigh the evidence or judge the credibility of the witnesses. Jackson v.

      State, 925 N.E.2d 369, 375 (Ind. 2010). We look only to the probative evidence

      supporting the judgment and the reasonable inferences that may be drawn from

      that evidence to determine whether a reasonable trier of fact could conclude the

      defendant was guilty beyond a reasonable doubt. Id. If there is substantial


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 5 of 10
       evidence of probative value to support the conviction, it will not be set aside.

       Id.


[10]   Pursuant to Indiana Code Section 35-43-4-2, to prove Fargo committed theft,

       the State was required to show that Fargo knowingly or intentionally exerted

       unauthorized control over PetSmart products with the intent to deprive

       PetSmart of the value or use of those products. Here, there was evidence that

       Ball (1) saw Fargo placing PetSmart products into a shopping cart that was

       already full of other PetSmart products; (2) maintained constant surveillance of

       Fargo from that point until Fargo left the store; (3) and saw Fargo leave the

       store with those products without having paid for them. Although Ball could

       not identify exactly what type of PetSmart products Fargo had stolen, the

       evidence nevertheless shows that Ball saw Fargo place items from PetSmart’s

       “human” section into an already-full shopping cart and then walk out of the

       store without paying for those items. Tr. at 18-19. This is sufficient evidence to

       prove that Fargo knowingly or intentionally exerted unauthorized control over

       PetSmart items. Cf. Meehan v. State, 7 N.E.3d 255, pin (Ind. 2014) (affirming a

       burglary conviction based on a glove found at a crime scene containing the

       defendant’s DNA).


[11]   There is also sufficient evidence that Fargo intended to steal the PetSmart

       items. Intent to commit a crime may be proven through circumstantial

       evidence. As we have explained:


               Intent is a mental state, and absent an admission, the [fact-finder]
               must resort to the reasonable inferences based upon an

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 6 of 10
                examination of the surrounding circumstances to determine
                whether, from the person’s conduct and the natural consequences
                that might be expected from that conduct, there exists a showing
                or inference of the required criminal intent.


       Germaine v. State, 718 N.E.2d 1125, 1132 (Ind. Ct. App. 1999), trans. denied.

       The State presented sufficient evidence from which the trial court could infer

       Fargo’s intent to deprive PetSmart of the value or use of items from its store

       from the evidence that she knowingly or intentionally placed such items in her

       shopping cart and then left the store without paying for them. 1


                                         Reliance on Hearsay Evidence

[12]   Fargo argues that the trial court erred in relying on hearsay evidence that had

       been ruled inadmissible. Fargo correctly points out that she had objected to

       Ball’s testimony that the PetSmart cashiers had told her that Fargo had not

       checked out with any of them, and the trial court sustained that objection

       pursuant to Indiana Evidence Rule 802, which prohibits the admission of

       hearsay unless it falls under one of a few specific exceptions that are not

       applicable here. But the State responds that Fargo invited any error by eliciting

       similar hearsay on cross-examination. See, e.g., Wright v. State, 828 N.E.2d 904,




       1
         Fargo claims that there was insufficient evidence that she stole the dog food and other large items that were
       in her cart before Ball started watching her, as there was no evidence that Fargo had not already paid for
       those items by the time Ball saw her. However, Ball saw Fargo leave the store with these items in her cart
       without paying for them, and the trial court found Ball’s testimony credible. This is sufficient evidence that
       Fargo stole those items. Fargo’s argument that we find otherwise simply asks us to reweigh the evidence,
       which we will not do.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015           Page 7 of 10
       907 (Ind. 2005) (holding that, under the doctrine of “invited error,” a party may

       not take advantage of an error that she commits or invites.)


[13]   We agree with Fargo that she did not “invite the error” by eliciting that hearsay

       evidence on cross-examination, as the State claims. The only hearsay evidence

       that Fargo’s counsel elicited in the cross-examination of Ball was testimony that

       one cashier, Alexis, had told Ball that Fargo did not check out with her.

       Although Ball reiterated on cross-examination that she did ask all the cashiers

       whether Fargo had checked out with them, Ball did not testify on cross-

       examination as to what the cashiers’ responses had been. Therefore, the

       evidence as to what any cashier other than Alexis had said was not “invited” by

       Fargo on cross-examination and, thus, it remained inadmissible. It was error

       for the trial court to consider that hearsay evidence.


[14]   However, that error was harmless. As explained above, Ball’s testimony that

       she saw Fargo take PetSmart items without paying is, alone, sufficient evidence

       of theft.


               Errors in the admission of evidence . . . are to be disregarded as
               harmless unless they affect the substantial rights of a party. Ind.
               Trial Rule 61; Sparkman v. State, 722 N.E.2d 1259, 1263 (Ind. Ct.
               App. 2000). In determining whether error in the introduction of
               evidence affected a defendant’s substantial rights, we must assess
               the probable impact of the improperly admitted evidence upon
               the [fact-finder]. Id. When there is substantial independent
               evidence of guilt such that it is unlikely that the erroneously
               admitted evidence played a role in the conviction or where the
               offending evidence is merely cumulative of other properly
               admitted evidence, the substantial rights of the party have not

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 8 of 10
                been affected, and we deem the error harmless. Smith v. State,
                839 N.E.2d 780, 784 (Ind. Ct. App. 2005).


       Bennett v. State, 5 N.E.3d 498, 510 (Ind. Ct. App. 2014) (quoting Robertson v.

       State, 877 N.E.2d 507, 514 (Ind. Ct. App. 2007)), trans. denied; see also Ind. Trial

       Rule 61. Here, we know that the trial court relied on the inadmissible hearsay

       evidence when making its decision because it explicitly said so. However, that

       hearsay evidence was cumulative of Ball’s testimony that she saw Fargo place

       items in her shopping cart and leave the store with them without stopping at

       any of the cash registers to pay. Because Ball’s eye-witness account is sufficient

       evidence, alone, to sustain the conviction, any reliance on the inadmissible

       hearsay was harmless error and cannot provide grounds for reversal. Id.


                                                Burden of Proof

[15]   Finally, Fargo argues that the trial court impermissibly shifted the burden of

       proof from the State to her. Fargo bases this claim on the court’s observation

       that Fargo did not present testimony from Deanna, the PetSmart cashier whom

       Fargo said she had paid for the PetSmart items. However, Fargo reads too

       much into the court’s statement. The court did not shift the burden of proof to

       Fargo.


[16]   The State always has the burden of proof in criminal cases, and that burden

       never shifts to the defendant, see, e.g., Woods v. State, 939 N.E.2d 676, 678 (Ind.

       Ct. App. 2010) (citing Taylor v. State, 587 N.E.2d 1293, 1301 (Ind. 1992)), trans.

       denied; the trial court acknowledged as much when it stated that Fargo did not


       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 9 of 10
       have a responsibility to prove anything to the court. However, once the State

       has met its burden of proving guilt beyond a reasonable doubt and thus

       established a prima facie case, the defendant will be found guilty unless she can

       “revive a reasonable doubt in the [fact-finder’s] mind[]” by presenting some

       evidence to counter the State’s case. Peabody Coal Co. v. Ralston, 578 N.E.2d

       751, 754 (Ind. Ct. App. 1991); see also Smith v. State, 266 N.E.2d 216, 218 (Ind.

       1971) (holding that, although the burden is on State to prove the guilt of the

       criminal defendant, and the burden does not shift, the burden of adducing

       evidence devolves on the defendant after a prima facie case of guilt has been

       made out). The trial court’s observation that Fargo did not present a cashier’s

       testimony to counter the State’s case did not shift the burden of proof to Fargo;

       rather, it merely acknowledged that Fargo did not rebut the State’s prima facie

       case against her. Cf. Hancock v. State, 737 N.E.2d 791, 798 (Ind. Ct. App. 2000)

       (holding it is permissible for the State to comment on the lack of evidence

       presented by the defense to contradict the State’s case).


[17]   The evidence was sufficient to support Fargo’s conviction for theft, and any

       erroneous consideration of hearsay evidence by the trial court was harmless

       error. Moreover, the trial court did not shift the burden of proof to Fargo.


[18]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-238 | December 29, 2015   Page 10 of 10
