MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                          May 16 2019, 10:43 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ryan Gardner                                            Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Matthew Michaloski
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Zachery Zerler,                                         May 16, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2563
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Wendy W. Davis,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D05-1804-F6-456



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2563 | May 16, 2019                           Page 1 of 7
[1]   Zachery Zerler appeals his conviction of Level 6 felony aiding theft.1

      Zerler argues the State did not have sufficient evidence to convict him and

      the trial court abused its discretion when denying a motion in limine. We

      affirm.

                                Facts and Procedural History
[2]   On November 3, 2017, a neighbor called Matthew Branning to tell Branning

      that Branning’s barn had been broken into. Branning proceeded to the barn,

      where he found the lock had been cut off and his Black Jack 8000 generator had

      been stolen. Branning had recently purchased the generator for $899.00.

      Branning notified the police of the theft and filed a report.


[3]   That same day, Zerler woke his roommate, John Clore, and told Clore he

      needed to borrow his truck in order to sell a generator. Zerler told Clore he had

      already loaded the generator into Clore’s truck. Clore agreed to let Zerler use

      his truck, and he, Zerler, and Zerler’s wife drove to multiple pawn shops trying

      to sell the generator. After multiple pawn shops declined to buy the generator,

      they arrived at B&B Loan in Fort Wayne, Indiana. Zerler sent Clore into the

      store to try to sell it, while Zerler remained in the truck. After making sure the

      generator worked, the manager agreed to buy it. Zerler asked Clore to finish

      the sale, because Zerler did not have an ID. Clore and the store manager

      brought the generator inside and completed the sale. Clore was required to sign




      1
          Ind. Code § 35-43-4-2(a) (2017) (theft); Ind. Code § 35-41-2-4 (1977) (aiding, inducing, causing).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2563 | May 16, 2019                             Page 2 of 7
      paperwork and to give his identification and a thumbprint. B&B Loan

      uploaded the information into an online database for police records. At some

      point Clore asked Zerler to confirm he owned the generator, and Zerler assured

      Clore he did.


[4]   On November 7, 2017, while following up on the report Branning made,

      Detective Steven Espinoza, a detective for the Fort Wayne Police Department,

      conducted a search of the online database. The detective found a generator

      matching Branning’s at B&B Loan. Branning was able to identify the generator

      based on a unique sticker. Clore cooperated with the police investigation. On

      April 23, 2018, the State charged Zerler with Level 6 felony aiding theft.


[5]   Prior to trial, Zerler filed a motion in limine to request the term “cut out” 2 not

      be used by any party. The Judge denied Zerler’s motion, ruling the term could

      be used with the proper foundation. At trial, Detective Joseph Lyon of the Fort

      Wayne Police Department testified as to what a “cut out” was. Zerler objected

      but was overruled. A jury found Zerler guilty of Level 6 felony aiding theft.




      2
          An officer explained the term cut out:

                 [I]n general terms for example juror number one or the person sitting in seat number one
                 would have an item that they wish to dispose of, but they don’t want their name attached
                 to it so they would ask the subject in seat number five to sell or pawn that item thereby
                 they have created distance between themselves and that item, and they still dispose of the
                 item. That in general terms is a cut out.


          (Tr. Vol. I at 197.)

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2563 | May 16, 2019                            Page 3 of 7
                                Discussion and Decision
                                      Sufficiency of Evidence
[6]   Zerler argues the State did not present sufficient evidence to support his

      conviction of aiding theft. When considering the sufficiency of evidence, “a

      reviewing court does not reweigh the evidence or judge the credibility of the

      witnesses.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm

      “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.” Id. at 126 (internal citation omitted).


[7]   To prove Zerler committed Level 6 felony aiding theft, the State had to present

      sufficient evidence that Zerler: (1) knowingly or intentionally, (2) aided another

      to (3) exert unauthorized control (4) over property of a third person (5) with

      intent to deprive the third person of any part of its value or use. See Ind. Code §

      35-43-4-2 (relevant elements of Level 6 felony theft), Ind. Code § 35-41-2-4

      (relevant elements as to aiding). Zerler does not challenge that the generator

      belonged to Branning, that its value exceeded $750.00, or that Zerler and Clore

      possessed it and sold it. Instead, Zerler challenges the State’s proof that he

      committed the theft or knew the generator was stolen.


[8]   Despite no physical evidence or witnesses linking Zerler to the removal of the

      generator form Branning’s barn, there is strong circumstantial evidence linking

      him to the theft. Zerler had access to Clore’s truck. Clore testified that when

      Zerler woke him up on November 3, the generator was already in the back of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2563 | May 16, 2019   Page 4 of 7
      Clore’s truck. November 3 is the same day the generator was reported stolen,

      and possession of stolen property shortly after the theft implies knowledge of

      theft. See Trotter v. State, 838 N.E.2d 553, 557 (Ind. Ct. App. 2005)

      (unexplained possession of stolen property is sufficient to support a theft

      conviction as long as property was recently stolen). Zerler drove to pawn shops

      to sell the generator, but then convinced Clore to complete the transaction

      because Zerler did not have a license. Zerler also lied to Clore about owning

      the generator. “Where the evidence of guilt is essentially circumstantial, the

      question for the reviewing court is whether reasonable minds could reach the

      inferences drawn by the jury; if so, there is sufficient evidence.” Whitney v.

      State, 726 N.E.2d 823, 825 (Ind. Ct. App. 2000). A reasonable jury would have

      inferred from these facts that Zerler aided in the theft of the generator. See, e.g.,

      Trotter, 878 N.E.2d at 557 (possession of stolen property recently after it was

      stolen allows for an inference that possessor stole the property).


                                         Abuse of Discretion
[9]   Zerler also argues the trial court abused its discretion by denying a motion in

      limine. “The ruling upon the motion in limine is not reviewable upon appeal.

      The office of such a motion is not to obtain a final ruling upon the admissibility

      of evidence.” Akins v. State, 429 N.E.2d 232, 237 (Ind. 1981). “Therefore, when

      reviewing a grant or denial of a motion in limine, we apply the standard of

      review for the admission of evidence, which is whether the trial court abused its

      discretion.” Terex-Telect, Inc. v. Wade, 59 N.E.3d 298, 302-303 (Ind. Ct. App.

      2016), trans. denied. An abuse of discretion occurs if the decision is “clearly

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2563 | May 16, 2019   Page 5 of 7
       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom.”

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d

       218 (Ind. 2007).


[10]   Zerler moved to keep the term “cut out” from being used at trial. On appeal,

       Zerler argues the term is extremely prejudicial and is “pure puffery” used only

       to disprove Zerler’s version of events. (Appellant Br. at 13.) Detective Lyon

       used the term “cut out” to explain Clore’s role in the crime. The State believed

       Zerler used Clore as a cut out in order to keep Zerler’s name out of records

       when the generator was sold. “Rule 403 only allows trial courts to exclude

       evidence if its probative value is substantially outweighed by the danger of

       unfair prejudice, not simply prejudice to a party’s theory of the case.” Walker v.

       Cuppett, 808 N.E.2d 85, 101 (Ind. Ct. App. 2004). Using the term “cut out” in

       order to better explain Clore’s role in the State’s theory of the case was not

       unfairly prejudicial to Zerler, and the trial court did not abuse its discretion by

       admitting the evidence. See Bell v. State, 29 N.E.3d 137, 142 (Ind. Ct. App.

       2015) (relevant evidence damaging to the defendant’s theory is permittable and

       not unfairly prejudicial), trans. denied.



                                               Conclusion
[11]   Despite no physical evidence linking Zerler to the actual theft of the generator,

       the circumstantial evidence was enough to infer that he was involved in the



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2563 | May 16, 2019   Page 6 of 7
       theft. Additionally, the trial court properly allowed the use of the term “cut-

       out” because the term is not unfairly prejudicial. Accordingly, we affirm.


[12]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2563 | May 16, 2019   Page 7 of 7
