MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 11 2019, 8:42 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephenie K. Gookins                                     Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC                                Attorney General of Indiana
Carmel, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Levon E. Coleman,                                        June 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2784
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable J. Richard
Appellee-Plaintiff.                                      Campbell, Judge
                                                         Trial Court Cause No.
                                                         29D04-1512-F6-10158



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019                   Page 1 of 17
                               Case Summary and Issues
[1]   Following a jury trial, Levon Coleman was convicted of three counts of fraud,

      all Level 6 felonies. Coleman appeals his convictions, raising two issues for our

      review: (1) whether the trial court abused its discretion when it denied

      Coleman’s motion for a mistrial; and (2) whether the evidence sufficiently

      supports Coleman’s fraud convictions. Concluding the trial court did not abuse

      its discretion and the evidence was sufficient to prove Coleman committed the

      offenses, we affirm.



                            Facts and Procedural History
[2]   On August 11, 2015, Stephen Nason, a loss prevention specialist at the Hobart

      Best Buy, received a phone call from Thomas Garcia, one of the store’s

      employees who was working that day. Garcia informed Nason of “a problem

      with a credit card transaction in the computer department and asked if [Nason]

      could come over and take a look.” Transcript of Evidence, Volume 2 at 72.

      Garcia described the nature of the problem to Nason. The credit card

      transaction for computer equipment totaling $1,800 or $1,900 had been

      declined and required an authorization code but the customer, Shaquita Jones,

      “insisted on using a pre-obtained authorization number.” Id. at 73. As is

      typical store policy in these instances, Nason instructed Garcia to ask the

      customer for another form of payment and told Garcia he would assist.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 2 of 17
[3]   Nason walked to the register where he encountered Jones and Coleman.

      Nason requested another form of payment but Jones insisted on using the

      declined card, stating she already spoke with her bank and had an approval

      code. Jones’ name and “netSpend Debit Visa” were printed on her card,

      ending in 5731. Appellant’s Appendix, Volume 2 at 22. Nason asked Jones to

      swipe her card a second time so he could call the bank for authorization.1 Jones

      swiped the card and “call for authorization” appeared on the register screen.

      Tr., Vol. 2 at 88. When Nason stated he could call the bank for authorization,

      Jones handed him a “post-it with a number on it[,]” told him she had “already

      gotten an authorization code from her bank[,]” and the bank had instructed her

      to use “this code.” Id. at 78.


[4]   Suspicious because a bank would not provide an authorization code to a

      customer ahead of time without having the transaction available, Nason asked

      Jones to see the card. Jones handed Nason the card, he examined it and

      recognized several suspicious physical features: the numbers were worn and



      1
          Nason explained the authorization process at trial:

                 [S]ometimes on large purchases, when a customer is using a credit card, if it’s an
                 unusually large amount for the person’s account, sometimes either the bank or our
                 system will flag it and our computer will stop the transaction and say, please call bank for
                 authorization. So, from there the associate is supposed to call the bank [and] the
                 associate explains over the phone to the operator what the situation is, the dollar amount
                 of the sale, confirms [the customer’s] identity, then they would hand the phone over to
                 the customer. The customer would prove their ident[ity] and then the operator on the
                 phone, if they approve the sale, they would give us an authorization number or they
                 would just decline the sale and then we would apologize.


      Tr., Vol. 2 at 77.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019                         Page 3 of 17
      appeared to be “artificially embossed”; the spacing was different; and the plastic

      appeared to be stretched. Id. at 79. Nason also performed a bank identification

      number (“BIN”) search by checking the first six digits of the card, which

      indicate the bank or financial company that issued the card. The search

      revealed that the BIN belonged to Nordstrom and was associated with a

      Nordstrom credit card rather than a “netSpend Debit Visa.” Appellant’s App.,

      Volume 2 at 22. While Nason inspected the card and performed the BIN

      search, Jones sat at a computer desk and Coleman stood nearby.


[5]   Suspecting the card was fraudulent, Nason intended to step behind the

      customer service area to discretely call the police for assistance. Nason

      informed Jones and Coleman that he was going to step away to call the bank to

      obtain an authorization code himself but assured them that he would come

      right back. When Nason stepped away from the register, Coleman followed

      him briefly, and then walked back and spoke with Jones. While Nason was on

      the phone with the police department in the customer service area, Coleman

      came around the front of the desk, approached Nason, and began shouting,

      “give me her card back, give me it back.” Tr., Vol. 2 at 90. After Nason

      refused to return the card, Coleman told Jones they should go, and then he

      exited the store and got into a white van.


[6]   Nason provided the police with a description of the van and its location. Jones

      asked Nason “what was going on” and he told her the police were on their way

      and he had identified the incident as fraud. Id. at 91. Jones left the store and

      Nason went outside “to keep an eye on her[.]” Id. Officer Kenneth Williams

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 4 of 17
      of the Hobart Police Department (“HPD”) arrived on the scene where a Best

      Buy employee pointed out the van that Nason described to police, which, at

      this point in time, was headed toward Route 30. Officer Williams located the

      van Coleman was driving and initiated a traffic stop. After discovering

      Coleman was driving with a suspended license, Officer Williams wrote him a

      ticket, requested a tow truck to impound the van per HPD policy, and began an

      inventory of the vehicle. Coleman was placed under arrest at the scene of the

      traffic stop and Jones was arrested in front of the store.


[7]   After obtaining a search warrant the following day, HPD officers searched the

      van and discovered various electronic items, including a TV, multiple tablets, a

      MacBook Pro, prepaid T-Mobile and Verizon cards, and other merchandise.

      Three credit cards were also located in the cupholder of the van, one in Jones’

      name and two containing the name Stephanie Brown. HPD Detective

      Nicholas Wardrip contacted Nason and provided him with the serial numbers

      for the electronic items recovered from the van and numbers of the re-encoded

      credit cards. At Detective Wardrip’s request, Nason ran the serial numbers for

      the electronic items through Best Buy’s “electronic journal,” allowing him to

      obtain duplicate receipts from other Best Buy stores. Id. at 93. Nason was able

      to match several purchases made on August 11 in Marion and Hamilton

      Counties to the items recovered from the van. See id. at 126. Nason’s review

      revealed that at 12:11 p.m., the same day Nason encountered Jones and

      Coleman in his store, the two had purchased $2,065.07 worth of merchandise

      from the Carmel Best Buy, with a credit card ending in 6167. Later that day, at


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 5 of 17
      4:26 p.m. and 4:46 p.m., Jones and Coleman used a credit card ending in 5731

      to purchase $1,527.73 and then $1,818.99 worth of items at the Noblesville

      store. Nason also obtained video surveillance from each store and verified that

      the customers present for the transactions were the “same two subjects that

      were in [Nason’s] store on August 11 at around 8:00 p.m.[,]” namely Jones and

      Coleman. Tr., Vol. 2 at 96; see also Appellant’s App., Vol. 2 at 25.


[8]   Detective Wardrip’s investigation revealed that the two credit cards used in

      these transactions were Nordstrom credit cards linked to other individuals. He

      contacted Nordstrom and spoke with an investigator who provided information

      on the re-encoded cards. Specifically, the card ending in 6167 was linked to

      Eileen Kent of Alexandria, Virginia, and had an unauthorized transaction for

      $2,065.07 from the Carmel Best Buy on August 11, 2015. Similarly, the card

      ending in 5731 was linked to Jane Martin of Edgewater, Maryland, and had

      unauthorized transactions for $1,527.73 and $1,818.99 from the Noblesville

      Best Buy on August 11, 2015. Appellant’s App., Vol. 2 at 25. Detective

      Wardrip also learned that if a transaction was marked as “forced,” as these

      were, it indicated the use of a fraudulent authorization code provided by the

      customer at the time of the transaction and entered by the store employee. Id.


[9]   On December 1, 2015, the State charged Coleman with three counts of fraud

      and three counts of forgery, all Level 6 felonies, for the transactions at the

      Noblesville and Carmel Best Buy stores. A jury trial was held on September 13,

      2018. After the State rested, Coleman moved for a directed verdict on the

      forgery counts, which the trial court granted, leaving the jury to determine the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 6 of 17
three fraud counts. See Tr., Vol. 2 at 146. Following closing arguments and

final instructions, which included an instruction on accomplice liability, the

jury retired to the jury room for deliberation. At that time, the court reporter

became aware that an exhibit admitted at trial, specifically State’s Exhibit 13,

was missing and confirmed that Detective Wardrip had mistakenly taken the

exhibit with him when he returned to Hobart. The exhibit was a plastic bag

containing the three credit cards recovered from the van Coleman was driving,

one in Jones’ name and the other two with Stephanie Brown’s name. At the

start of deliberations, the jury had asked to see the exhibit. The trial court asked

the parties for solutions or suggestions on how to proceed and the defense

proposed that the court recess until the next morning to allow the exhibit to be

returned. The trial court asked if the State would be willing to withdraw the

exhibit and have the jury instructed not to consider the exhibit, to which the

State agreed. Defense counsel objected, concerned the proposed solution

would create confusion for the jury, and moved for a mistrial, which the trial

court denied. The parties continued to discuss the issue:


        The Court: I’m not going to declare – we’ll either proceed –
                   we’ll proceed with a stipulation what names were
                   on the card or proceed with withdrawing the
                   exhibits and admonishing [the jury not] to consider
                   that exhibit as evidence. . . .


        ***


        [Defense]:       I guess. Over objection, Judge, I guess [Exhibit 13]
                         could be withdrawn. Over objection.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 7 of 17
Id. at 187. The trial court ordered the jury to return from its deliberations and

then proceeded to admonish them as follows:


        [W]e no longer have State’s Exhibit 13. You will not have
        Exhibit 13 to examine in the jury room. You were given a
        chance to look at it during the trial. However, since it cannot be
        located now, the State has withdrawn Exhibit 13. The Court is
        withdrawing Exhibit 13 from the evidence in this case. What
        that means [is] that you must not consider the evidence in
        making a decision. You have to treat it as if you never saw
        Exhibit 13. It’s not to be considered as part of your decision
        because of the exhibit that’s missing. So, this has never
        happened before, but this is the best way, I think, we need to
        proceed. . . . It’s my decision to proceed this way without Exhibit
        13. . . . Any questions from the jury? If not? Yes?


Id. at 188. Two jurors then asked for clarification that Exhibit 13 was the bag

with the three credit cards that had been examined by the jury during the trial.

The jury returned to the jury room to continue deliberating and ultimately,

found Coleman guilty of all three fraud counts (Counts 1, 3, and 5). The trial

court sentenced Coleman to 730 days executed at the Indiana Department of

Correction on each count, to be served concurrently. Coleman now appeals,

challenging the trial court’s denial of his motion for a mistrial and the

sufficiency of the evidence supporting his fraud convictions. Additional facts

will be provided as necessary.



                           Discussion and Decision


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 8 of 17
                             I. Denial of Motion for Mistrial
[10]   Coleman first challenges the trial court’s denial of his motion for a mistrial after

       the parties discovered that State’s Exhibit 13 was missing and unavailable for

       the jury to examine during its deliberations.


[11]   “A mistrial is an extreme remedy that is warranted only when less severe

       remedies will not satisfactorily correct the error.” Warren v. State, 725 N.E.2d

       828, 833 (Ind. 2000). A trial court is in the best position to evaluate whether a

       mistrial is warranted “because it can assess first-hand all relevant facts and

       circumstances and their impact on the jury.” Ramirez v. State, 7 N.E.3d 933,

       935 (Ind. 2014). Accordingly, we afford its decision great deference and review

       the trial court’s decision for an abuse of discretion. Gregory v. State, 540 N.E.2d

       585, 589 (Ind. 1989). An abuse of discretion occurs when the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before it. Vaughn v. State, 971 N.E.2d 63, 68 (Ind. 2012).


[12]   The denial of a motion for mistrial will be reversed only upon a showing that

       the defendant was placed in a position of grave peril to which he should not

       have been subjected. Myers v. State, 887 N.E.2d 170, 189 (Ind. Ct. App. 2008),

       trans. denied. On appeal, the defendant bears the burden of demonstrating he

       was placed in grave peril by the denial of the motion, as well as the additional

       burden of demonstrating that no other action could have remedied the perilous

       situation into which he was placed. Id. “The gravity of the peril is determined

       by the probable and persuasive effect [of the conduct] on the jury’s decision[,]”


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 9 of 17
       Bisard v. State, 26 N.E.3d 1060, 1068 (Ind. Ct. App. 2015), trans. denied, rather

       than the degree of impropriety of the conduct, Gregory, 540 N.E.2d at 589.


               When faced with a circumstance that a defendant believes might
               warrant mistrial, generally, the correct procedure is to request an
               admonishment. However, if counsel is not satisfied with the
               admonishment or it is obvious that the admonishment will not be
               sufficient to cure the error, counsel may then move for a mistrial.
               A failure to request an admonishment or move for a mistrial
               results in waiver of the issue.


       Cherry v. State, 971 N.E.2d 726, 733 (Ind. Ct. App. 2012) (citations omitted),

       trans. denied. Furthermore, a “timely and accurate admonition is presumed to

       cure any error in the admission of evidence.” Randolph v. State, 755 N.E.2d

       572, 575 (Ind. 2001) (quoting Heavrin v. State, 675 N.E.2d 1075, 1084 (Ind.

       1996)).


[13]   First, we address the issue of waiver. Here, the State argues that Coleman

       waived appellate review of his motion for a mistrial because he failed to object

       after the trial court admonished the jury and he ultimately acquiesced to the

       trial court’s decision to withdraw the exhibit and admonish the jury. The

       record clearly shows that after discovering State’s Exhibit 13 was missing,

       defense counsel suggested that the court recess until the following morning, but

       instead the trial court asked if the State would be willing to withdraw the

       exhibit and instruct the jury not to consider the exhibit. The State agreed. At

       that point, defense counsel objected and moved for a mistrial. The trial court

       denied Coleman’s motion and explained it would proceed with either a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 10 of 17
       stipulation as to which names were on the credit cards or withdraw the exhibit

       and admonish the jury not to consider it in making their determination.

       Defense counsel stated, “I guess. Over objection, Judge, I guess [Exhibit 13]

       could be withdrawn. Over objection.” Tr., Vol. 2 at 187. Then, the trial court

       ordered the jury back into the courtroom, explained that the exhibit had been

       withdrawn, and admonished them not to consider it as evidence. The trial

       court stated, in part, “you must not consider [the exhibit] in making a decision.

       You have to treat it as if you never saw Exhibit 13. It’s not to be considered as

       part of your decision because of the exhibit that’s missing.” Id. at 188. After

       the admonishment, defense counsel again raised concern the solution would

       lead to jury confusion and the trial court allowed defense counsel to make his

       record to preserve the issue. We cannot conclude Coleman waived appellate

       review of his motion for a mistrial.


[14]   Coleman’s argument that he was placed in a position of grave peril to which he

       should not have been subjected fails, however. Specifically, Coleman contends

       that the “entire theme of his case” was predicated upon a lack of evidence of his

       knowledge that a crime was being committed. Appellant’s Brief at 9. In

       support of his argument, he emphasizes that Jones was the one who interacted

       with the store employees and pleaded guilty to similar charges, and that his

       name was not on any of the credit cards in evidence, including the three credit

       cards labeled as State’s Exhibit 13. As a result, he contends that the trial court’s

       suggestion that the exhibit be withdrawn and the State’s willingness to

       withdraw the exhibit “deprived [him] the opportunity to potentially argue and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 11 of 17
       present his case in a different manner as a result of [Jones’] credit cards not

       being included in evidence.” Id. at 10. With respect to its effect on the jury,

       Coleman asserts that because the jury requested to see the exhibit at the start of

       their deliberations, “they placed significant importance on that exhibit and it

       was material to their determination of guilt.” Id. at 14. However, we fail to see

       how the withdrawal of the exhibit had a “probable and persuasive effect on the

       jury’s decision[,]” placing Coleman in a position of grave peril when the three

       credit cards in State’s Exhibit 13 were not used in the fraudulent transactions

       that occurred at the Carmel and Noblesville stores, of which Coleman was

       convicted. Bisard, 26 N.E.3d at 1068. Given the ample evidence supporting

       Coleman’s convictions that he was a willing participant in a scheme to commit

       fraud, as discussed below, we are unpersuaded by Coleman’s argument that the

       withdrawal of the exhibit placed him in a position of grave peril. Thus, the trial

       court did not abuse its discretion by denying Coleman’s motion for a mistrial.


                               II. Sufficiency of the Evidence
[15]   Coleman also argues the evidence was insufficient to support his convictions.

       Specifically, he contends there is no evidence that he actually used the credit

       cards in question or that he had any connection to Jones, who did use the credit

       cards. The State, however, argues that the evidence reveals that Coleman and

       Jones engaged in a scheme to fraudulently obtain merchandise: they

       “proceeded to several different Best Buy stores; purchased large amounts of

       electronics with two falsified credit cards; and . . . when [Coleman] realized



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 12 of 17
       Nason would discover their scheme by calling the bank, he fled the store.”

       Brief of Appellee at 16.


[16]   When reviewing the sufficiency of the evidence to support a conviction, we do

       not reweigh the evidence or judge the credibility of the witnesses. McHenry v.

       State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative

       evidence and reasonable inferences supporting the verdict. Drane v. State, 867

       N.E.2d 144, 146 (Ind. 2007). When confronted with conflicting evidence, we

       must consider it “most favorably to the trial court’s ruling” and the evidence

       need not overcome every reasonable hypothesis of innocence. Id. “We will

       affirm if there is substantial evidence of probative value such that a reasonable

       trier of fact could have concluded the defendant was guilty beyond a reasonable

       doubt.” Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).


[17]   A person who, with the intent to defraud, obtains property by using a credit

       card, knowing that the credit card is forged commits fraud, a Level 6 felony.

       Ind. Code § 35-43-5-4(1)(B). Under Indiana’s accomplice liability statute, a

       person “who knowingly or intentionally aids, induces, or causes another person

       to commit an offense commits that offense[.]” Ind. Code § 35-41-2-4. And the

       statute governing accomplice liability “does not establish it as a separate crime,

       but merely as a separate basis of liability for the crime charged.” Hampton v.

       State, 719 N.E.2d 803, 807 (Ind. 1999). Thus, an accomplice is equally culpable

       as the principal, the one who commits the actual crime. Tuggle v. State, 9

       N.E.3d 726, 736 (Ind. Ct. App. 2014), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 13 of 17
[18]   In determining whether the evidence is sufficient to demonstrate accomplice

       liability, we consider the defendant’s: (1) presence at the crime scene; (2)

       companionship with another at the crime scene; (3) failure to oppose the

       commission of the crime; and (4) course of conduct before, during, and after the

       commission of the crime. Griffin v. State, 16 N.E.3d 997, 1004 (Ind. Ct. App.

       2014). A defendant’s mere presence at the crime scene or lack of opposition to

       a crime, alone, is insufficient to establish accomplice liability. Tuggle, 9 N.E.3d

       at 736. However, these factors may be considered in conjunction with a

       defendant’s course of conduct before, during, and after the crime, and his or her

       companionship with the principal. Id. Here, the State prosecuted Coleman

       under the accomplice liability theory and the jury was provided with

       instructions accordingly. See Tr., Vol. 2 at 170-71.


[19]   Viewing the evidence most favorable to the verdicts, the State presented video

       clips from Best Buy’s surveillance system at trial and Nason walked the jury

       through the video, which illustrated that on August 11, 2015 at 7:55 p.m., Jones

       and Coleman entered the Hobart Best Buy together. Nason identified Jones,

       who had a “purple burgundy shirt on, [and] long curly hair[,]” and Coleman,

       with the “long green sweater and a baseball cap.” Tr., Vol. 2 at 86. Garcia was

       shown assisting the two and Nason walked over to assist. Jones swiped the

       credit card again at Nason’s request and then handed it to Nason when

       authorization was requested. When Nason stepped away to call the police,

       Coleman briefly followed him, and then walked back over to Jones. Coleman

       then walked over to the customer service desk and began shouting at Nason to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 14 of 17
       give him the card back. Coleman exited the store at 8:18 p.m. and Jones exited

       four minutes later. Nason testified that Jones was wearing a maroon shirt with

       “Pink” on it and Coleman wore a long-sleeve green sweater. Id. at 74. Photos

       of the two, which accurately represented these descriptions, were admitted at

       trial. See Table of Exhibits, Volume 3 at 5-8.


[20]   Nason testified that HPD asked him to produce receipts from other Best Buy

       stores and his inquiry revealed three transactions on August 11, 2015: a

       $2,065.07 transaction at 12:11 p.m. using a credit card ending in 6167 at the

       Carmel Best Buy, and a $1,527.73 transaction at 4:26 p.m. and a $1,818.99

       transaction at 4:46 p.m. using a credit card ending in 5731 at the Noblesville

       Best Buy. Receipts reflecting the store, date, time, items purchased, total

       amount, and last four digits of the credit card were admitted at trial. See Table

       of Exhibits, Vol. 3 at 14-18. The credit card ending in 5731, which was used at

       the Noblesville store and given to Nason at the Hobart store, was also admitted.

       See id. at 10. Nason testified that, upon finding these transactions and receipts,

       he “contacted those stores and spoke with asset protection associates . . . and

       asked them to review their video tape on those dates and times and send [him]

       screen shots and video clips of the customers that were present for those

       transactions.” Tr., Vol. 2 at 96. After receiving the requested videos, Nason

       stated, “I was able to verify that it was the same two subjects that were in [the

       Hobart] store on August 11 at around 8:00 p.m.” Id. Surveillance videos

       depicting Jones and Coleman at the Hobart, Carmel, and Noblesville stores

       were presented to the jury. In addition, video clips showing the two in the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 15 of 17
       Lafayette Road store and the 82nd Street store around 12:48 p.m. and 1:42 p.m.

       that day were shown to the jury.


[21]   Coleman was physically present with Jones during the transactions and it is

       clear the two had some level of companionship. At a minimum, the evidence

       supports a reasonable inference that the two were driving from one Best Buy to

       the next in Central Indiana, purchasing similar items, making large

       transactions, and working together to fraudulently obtain merchandise. There

       is no evidence that Coleman opposed the crimes, but instead the two continued

       to drive from store to store until Nason discovered their scheme.


[22]   Finally, Coleman’s conduct before, during, and after each transaction and

       during the attempted transaction at the Hobart store illustrates a clear scheme

       between the two. The evidence demonstrates that the two entered the stores

       together and both were present during the transactions. In fact, the evidence

       shows that Coleman carried a television out of the Carmel store alongside Jones

       and a bag of merchandise out of the Noblesville store. We also acknowledge

       that a defendant’s “[f]light shows consciousness of guilt.” Tuggle, 9 N.E.3d at

       736. The evidence is clear that when Nason became suspicious of the two,

       Coleman followed Nason briefly, said something to Jones, and approached the

       customer service desk where he yelled at Nason to give the credit card back.

       However, when Nason did not comply, Coleman fled the store, got into the van

       and drove away – the van from which officers later recovered thousands of

       dollars’ worth of Best Buy merchandise that Nason was able to link to

       fraudulent purchases.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 16 of 17
[23]   Based on the surveillance videos and store receipts, Nason identified Coleman

       and Jones as the customers present during the fraudulent transactions in the

       Carmel and Noblesville stores. Given the totality of the evidence, there was

       substantial evidence of probative value such that a reasonable jury could have

       concluded Coleman was a willing participant in a scheme with Jones to

       fraudulently obtain merchandise. See Sandleben v. State, 22 N.E.3d 782, 791

       (Ind. Ct. App. 2014) (intent may be proven by circumstantial evidence and

       inferred from a defendant’s conduct, as well as the “natural and usual sequence

       to which such conduct logically and reasonably points [and t]he fact finder is

       entitled to infer intent from the surrounding circumstances”), trans. denied.



                                               Conclusion
[24]   Based on the foregoing, we conclude the trial court did not abuse its discretion

       when it denied Coleman’s motion for a mistrial and the evidence was sufficient

       evidence to support his fraud convictions. We therefore affirm Coleman’s

       convictions.


[25]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2784 | June 11, 2019   Page 17 of 17
