MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                           Jul 20 2015, 10:59 am
Memorandum Decision shall not be 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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy J. Burns                                          Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Lyubov Gore
                                                          Deputy Attorney General



                                             IN THE
    COURT OF APPEALS OF INDIANA

Sherri Lane,                                              July 20, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1410-CR-715
        v.                                                Appeal from the Marion Superior
                                                          Court

State of Indiana,                                         Lower Court Cause No.
                                                          49F09-1307-FD-44299
Appellee-Petitioner.
                                                          The Honorable Barbara Crawford,
                                                          Judge




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015           Page 1 of 7
                                        Statement of the Case
[1]   Appellant/Defendant, Sherri Lane (“Lane”), appeals her conviction of Class D

      felony theft where the judgement was entered as a Class A misdemeanor. 1

      Lane argues that there was insufficient evidence to demonstrate an intent to

      deprive K-Mart of its property. We disagree and affirm her conviction.


[2]   We affirm.


                                                      Issue
              Whether there was sufficient evidence to support Lane’s theft
              conviction.

                                                     Facts
[3]   On July 7, 2013, Lane entered a K-Mart store to return a “Dora [the Explorer]

      [] 4 Wheeler Quad [‘car’].” (Tr. 54). Lane placed the car inside of a shopping

      cart beside the car’s packaging box and then approached the service desk. Lane

      presented her receipt and requested a refund. However, K-Mart employees told

      her that a refund could not be issued because the date on the receipt was past

      “the refund policy date.” (Tr. 55). Janetta Sumners (“Sumners”), a loss

      prevention associate, noticed that Lane became upset by the refusal of her

      refund request and heard Lane say that “she would never shop there again.”

      (Tr. 57). Sumners then observed Lane proceeding to the store’s north exit and




      1
       IND. CODE § 35-43-4-2(a). We note that effective July 1, 2014, a new version of this theft statute was
      enacted and that Class D felony theft is now a Class A misdemeanor. Because Lane committed her crime in
      2013, we will apply the statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015          Page 2 of 7
      watched her turn around before exiting and begin to shop. At that time, the car

      and its empty packaging box remained in Lane’s cart.


[4]   Sumners informed another loss prevention associate to watch Lane on the

      surveillance cameras because Lane’s behavior was unusual. After returning to

      the office to view the surveillance video as it recorded, Sumners saw Lane select

      items and put “all but a couple of the items” into the car’s empty packaging

      box. (Tr. 65). Sumners also saw Lane place a K-Mart bag over the car’s

      packaging box. Thereafter, Lane passed through both sets of the doors at the

      north exit with her cart of unpurchased merchandise. K-Mart loss prevention

      personnel detained Lane and took her to the security office. When Sumners

      asked Lane why she had stolen the items in the cart, Lane responded that “she

      was upset that she didn’t get a refund.” (Tr. 77). Lane was then asked to

      remove the items from the car’s packaging box; the various items recovered

      totaled approximately $600 in value.


[5]   Soon after, Sumners called the police and reported that they had a shoplifter in

      custody. Officer Sean McCurdy (“Officer McCurdy”) of the Indianapolis

      Metropolitan Police Department arrived at the store’s security office, and he

      asked Lane why she had been stealing. Lane responded that she was upset that

      she could not return the car. While Lane was speaking to police, her teenage

      son was waiting outside of the office. When he came back into the office, Lane

      told her son “this is why you do not do things out of anger.” (Tr. 79).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015   Page 3 of 7
[6]   The State charged Lane with Class D felony theft on July 7, 2013. On July 23,

      2014, the trial court held a jury trial. During the trial, Sumners and Officer

      McCurdy testified to the above mentioned facts. Lane testified and denied

      making any self-incriminating statements to Sumners, her son, or Officer

      McCurdy. Lane stated that she was a frequent shopper at K-Mart and that she

      had gone to the store to return the car and shop for school items. She claimed

      that she had been upset about not being able to return the item and had been

      planning to leave, but, her son had reminded her about school shopping. She

      also testified that she had exited the store with the unpurchased merchandise,

      not intending to steal them, but to purchase paper plates that she claimed were

      on display outside of the north entrance. Because she was unable to locate an

      employee to get permission to go outside of the store to get the paper plates,

      Lane stated that she was unwilling to leave the car and her purse in the cart

      unattended.


[7]   During the trial, both Sumners and Officer McCurdy testified that Lane never

      mentioned paper plates to them, and Sumners testified that she had never seen

      K-Mart selling plates during a sidewalk sale. Similarly, she also testified that

      the only sidewalk sale at that time was a sale for flowers located near the south

      entrance. The surveillance footage introduced as an exhibit during the trial also

      contradicted Lane’s claim that she looked for a K-mart associate before she

      exited the north entrance.


[8]   At the conclusion of the trial, the jury found Lane guilty as charged. At Lane’s

      sentencing hearing, the trial court entered her theft conviction as a Class A

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015   Page 4 of 7
       misdemeanor. The trial court sentenced Lane to three hundred sixty-five (365)

       days, with three hundred fifty-nine (359) days suspended to probation and a

       total credit time of six (6) days. Lane now appeals.


                                                   Decision
[9]    Lane contends that her theft conviction was not supported by sufficient

       evidence. Specifically, she argues that there was insufficient evidence to

       establish her intent to deprive K-Mart of the value and use of the unpurchased

       items.


[10]   Our supreme court has held that when the sufficiency of evidence is challenged

       we will consider only the evidence most favorable to the judgement without

       reweighing that evidence or judging the credibility of the witness. Wright v.

       State, 828 N.E.2d 904, 906 (Ind. 2005). We respect the jury’s “exclusive

       province to weigh conflicting evidence.” Alkhalidi v. State, 753 N.E.2d 625, 627

       (Ind. 2001). Likewise, it is not necessary for the evidence to “‘overcome every

       reasonable hypothesis of innocence.’” Drane v. State, 867 N.E.2d 144, 147 (Ind.

       2007) (quoting Moore v. State, 652 N.E. 2d 53, 55 (Ind. 1995), reh’g denied). We

       will affirm the trial court “‘if the probative evidence and reasonable inferences

       drawn from the evidence could have allowed a reasonable trier of fact to find

       the defendant guilty beyond a reasonable doubt.’” McHenry v. State, 820 N.E.2d

       124, 126 (Ind. 2005) (quoting Tobar v. State, 740 N.E.2d 109, 111-12 (Ind.

       2000)).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015   Page 5 of 7
[11]   To convict Lane of theft as charged, the State was required to prove beyond a

       reasonable doubt that she “knowingly or intentionally exerted unauthorized

       control over [K-Mart’s] property . . . with [the] intent to deprive . . . [K-Mart] of

       any part of its value or use[.]” I. C. § 35-43-4-2(a). Lane does not dispute that

       she “knowingly selected certain items for sale and placed them either in her

       shopping basket [or inside] of the empty [car] box.” (Lane Br. 5). Instead, she

       argues that there was insufficient evidence to demonstrate her intent to deprive

       K-Mart of its items’ value or use. Id.


[12]   This Court has held that “‘[i]ntent’ is ‘a mental function, and without a

       confession, it must be determined from a consideration of the conduct and the

       natural consequences of the conduct giving rise to the charge that the defendant

       committed theft.”’ Duren v. State, 720 N.E.2d 1198, 1202 (Ind. Ct. App. 1999)

       (quoting Brant v. State, 535 N.E.2d 189, 191 (Ind. Ct. App. 1989), trans. denied),

       trans. denied. “[I]ntent may be proven by circumstantial evidence, and it may be

       inferred from a defendant’s conduct and the natural and usual consequences to

       which such conduct logically and reasonably points.” Long v. State, 935 N.E.2d

       194, 197 (Ind. Ct. App. 2010), trans. denied. Accordingly, a theft conviction

       may be sustained by circumstantial evidence. See Ward v. State, 439 N.E.2d

       156, 159 (Ind. 1982) (holding that an “[u]nexplained possession of [] stolen

       property will support an inference of guilt . . . and of theft of that property”).


[13]   Here, Lane contends that the evidence that she walked out of the store through

       both sets of doors of the north exit with a cart of unpurchased merchandise was

       insufficient to show that she intended to deprive K-Mart of the unpurchased

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015   Page 6 of 7
       merchandise’s use or value. She argues that she walked out of the doors only to

       retrieve paper plates from a sidewalk sale. She also contends that she attempted

       to locate a K-Mart employee before exiting the store to view the sidewalk sale,

       but she was unsuccessful. Additionally, Lane challenges the credibility of

       Sumners’ and Officer McCurdy’s testimony, arguing that she did not make any

       self-incriminating statements.


[14]   We disagree. Sumners’ testimony and the surveillance footage contradicts

       Lane’s arguments. Sumners testified that the only sidewalk sale occurring at

       that time was the sale of flowers outside of the south entrance, and that she had

       never seen paper plates sold during a sidewalk sale. Similarly, the surveillance

       video also contradicts Lane’s claims because it shows her walking past the

       service area and through the doors without stopping or looking for an

       employee. Therefore, Lane’s argument is nothing more than a request for this

       Court to reweigh the evidence and the witnesses’ credibility, which we will not

       do. Wright, 828 N.E.2d at 906. Accordingly, there was sufficient evidence to

       support Lane’s theft conviction.


[15]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-715 | July 20, 2015   Page 7 of 7
