Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            Jul 31 2014, 9:31 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.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

KAREN M. HEARD                                      GREGORY F. ZOELLER
Vanderburgh County Public Defender’s Office         Attorney General of Indiana
Evansville, Indiana
                                                    ANDREW FALK
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOSHUA W. SANFORD,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 82A01-1312-CR-552
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                        The Honorable Robert J. Pigman, Judge
                          Cause No. 82D02-1209-FC-1195


                                          July 31, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                              STATEMENT OF THE CASE

       Joshua Sanford appeals his conviction of theft, as a Class D felony. Ind. Code § 35-

43-4-2 (2009).

       We affirm.

                                           ISSUE

       Sanford presents one issue for our review, which we restate as: whether there was

sufficient evidence to support his conviction of theft.

                         FACTS AND PROCEDURAL HISTORY

       In September 2012, Sanford, with the help of James Ling, broke into McCullough’s

Welding shop and stole a large iron working machine. Sanford painted the machine a

different color, affixed a new serial number, and placed the machine in the metal working

shop owned by his mother. At Sanford’s direction, Ling prepared a phony bill of sale for

the machine. During their investigation of the missing machine, the police located the

machine at Sanford’s mother’s shop, and Tom McCullough identified it as the machine

from his welding shop.

       Based upon this incident, Sanford was charged with burglary, as a Class B felony,

Indiana Code section 35-43-2-1 (1999); forgery, as a Class C felony, Indiana Code section

35-43-5-2 (2006); and theft, as a Class D felony, Indiana Code section 35-43-4-2.

Following a trial, the jury found Sanford guilty of theft and not guilty of forgery. The

burglary charge resulted in a hung jury. Sanford was sentenced to two years for his theft

conviction, and this appeal ensued.



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                              DISCUSSION AND DECISION

       Sanford contends that the State failed to present evidence sufficient to support his

conviction of theft. In order to obtain a conviction of theft in this case, the State must have

proved beyond a reasonable doubt that (1) Sanford (2) knowingly or intentionally (3)

exerted unauthorized control over (4) property (5) of McCullough Welding Shop (6) with

the intent to deprive McCullough Welding Shop of any part of its value or use. See Ind.

Code § 35-43-4-2(a).

       When reviewing claims of insufficiency of the evidence, this Court neither reweighs

the evidence nor assesses the credibility of the witnesses. Brasher v. State, 746 N.E.2d 71,

72 (Ind. 2001). Rather, we look to the evidence most favorable to the verdict and any

reasonable inferences drawn therefrom. Id. We will affirm the conviction if there is

probative evidence from which a reasonable jury could have found the defendant guilty

beyond a reasonable doubt. Id.

       The evidence at trial disclosed that Sanford worked at D & S Metal Supplies, which

was owned by his mother. On the morning of Friday, September 21, 2012, Sanford went

to McCullough’s Welding shop and asked questions regarding the uses and capabilities of

their 6,000 pound press called an Iron Worker. Later the same day, Sanford returned to

McCullough’s with James Ling and asked additional questions about the Iron Worker.

       When employees of McCullough’s Welding shop returned to work the following

Monday, they found broken glass and holes in the rear wall, and the Iron Worker was

missing. McCullough’s employees informed the police that Sanford had visited the shop

twice on the previous Friday and that both times he had asked questions about the Iron

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Worker. When the police questioned Sanford, he produced the bill of sale prepared by

Ling. The police eventually talked to Ling who told them he helped Sanford steal the Iron

Worker from McCullough’s Welding shop and that, at Sanford’s request, he wrote a bill

of sale for the Iron Worker using a fictitious seller’s name. The police found the Iron

Worker at D & S Metal Supplies, and they noticed that the paint on the machine as well as

the glue on the back of the serial number plate was still a bit wet and “tacky.” Tr. p. 188.

Although it had been repainted and a new serial number had been affixed, McCullough

was able to identify it as the machine taken from his shop based upon certain unique

modifications that he and his employees had made over the years.

       On behalf of the State, Ling testified that Sanford asked him if he wanted to “make

some easy fast money.”      Id. at 37. On September 21, 2012, Sanford took him to

McCullough’s to show him a piece of equipment that Sanford wanted to steal. While

Sanford talked to people in the shop, Ling looked around for cameras or alarm systems.

He testified that they went back to McCullough’s late that same night and broke into the

back of the building. Once inside, he used a pipe to smash some lights, and then he and

Sanford unhooked the Iron Worker, gathered up the attachments, and used a fork lift to lift

the machine onto the back of Sanford’s truck. Ling further testified that the men left the

shop and went their separate ways but that within 10-15 minutes he received a phone call

from Sanford saying that the machine had fallen off of his truck when he had turned a

corner. Ling went to help Sanford, and while Sanford was away from the scene getting a

fork lift to lift the machine off the ground, an elderly lady emerged from a nearby apartment



                                             4
and talked to him. Once they had the machine in Sanford’s garage, Sanford informed Ling

that he planned to paint the machine a different color and change the serial number.

       Terri Pagett also testified on behalf of the State. She stated that around 4 a.m. on

September 22, 2012, she heard a loud noise that shook her apartment. She looked out of

her apartment and saw a large piece of machinery in the middle of the road. As she

continued to watch, she saw a man arrive and begin to pick up the pieces in the road. She

asked him if everything was okay, and he responded in the affirmative. Pagett testified

that a few minutes later she saw another man arrive driving a fork lift and that the two men

loaded the machine onto the fork lift and left.

       Ling further testified that the next day Sanford asked him to write a bill of sale for

the Iron Worker. Sanford provided a fictitious seller’s name and dictated the terms of the

sale to Ling. Sanford then signed the document as the purchaser and paid Ling $1,500.

When the police first interviewed Ling regarding the missing Iron Worker, he denied any

involvement. Later he stated that his only involvement was writing the receipt, but

eventually he admitted to his full involvement in the incident. Ling also testified that

although he was hoping for leniency with regard to his charges stemming from this

incident, he had been offered no leniency or immunity in exchange for his testimony at

Sanford’s trial.

       Additionally, a handwriting expert testified that the bill of sale, with the exception

of Sanford’s signature and a number that was written in the body of the document, was

written by Ling. The State also presented testimony that an investigation of the person

listed as the seller on the bill of sale resulted in a conclusion that the person does not exist.

                                               5
       Sanford testified on his own behalf at trial. He indicated that Ling took advantage

of him and sold him a stolen Iron Worker. Sanford explained that Ling told him he had an

Iron Worker in a warehouse and that Ling borrowed his truck to get it. Sanford stated that

Ling left at 7:00 p.m. on September 21, 2012 and told him he would return in two hours

but that Ling did not return until 6:00 a.m. on September 22. He testified that he paid Ling

$2,500 for the Iron Worker and that Ling issued him a receipt. Sanford also testified as to

his inability to read and write due to his dyslexia; however, his testimony was contradicted

by that of the handwriting expert who testified that Sanford read and completed forms by

himself.

       Sanford’s wife testified as an alibi witness. She stated that Sanford was home all

night pacing because he was upset about loaning his truck to Ling when Ling did not return

in two hours as he had promised.

       The evidence presented at trial is sufficient to sustain Sanford’s conviction.

Although Sanford claims that his conviction cannot stand because no evidence other than

Ling’s testimony links him to the theft, we know that the uncorroborated testimony of one

witness, including an accomplice, may be sufficient by itself to sustain a conviction on

appeal. Smith v. State, 809 N.E.2d 938, 941 (Ind. Ct. App. 2004), trans. denied. Moreover,

it is within the jury’s province to judge the credibility of the witnesses, Brasher, 746 N.E.2d

at 73, and therefore to determine which version of the incident to credit. Barton v. State,

490 N.E.2d 317, 318 (Ind. 1986). Sanford’s appeal is merely an invitation for us to reweigh

the evidence and assess the credibility of the witnesses, which we cannot do. See Brasher,

746 N.E.2d at 72.

                                              6
                                       CONCLUSION

       For the reasons stated, we conclude that there was sufficient evidence to sustain

Sanford’s conviction of theft.

       Affirmed.

NAJAM, J., and BROWN, J., concur.




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