MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                            FILED
this Memorandum Decision shall not be                                               Apr 19 2016, 7:09 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert M. Keeton,                                        April 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         66A03-1510-CR-1645
        v.                                               Appeal from the
                                                         Pulaski Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Patrick Blankenship, Judge
                                                         Trial Court Cause No.
                                                         66D01-1502-F6-9



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 66A03-1510-CR-1645 | April 19, 2016               Page 1 of 9
[1]   Robert M. Keeton (“Keeton”) was convicted after a jury trial of theft1 as a Class

      A misdemeanor and battery2 as a Class B misdemeanor. He appeals his

      convictions, raising the following issue for our review: whether the State

      presented sufficient evidence to support his convictions for battery and theft.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On February 2, 2015, Kenneth W. Smith, Sr. (“Smith”), a retired Ironworker

      and former Town Marshal of Medaryville from 1989 to 2000, was driving home

      on Delaware Street in Medaryville, Indiana when he noticed a blue Ford car

      (“the Ford”) stopped in an alley running between Delaware and Boston Streets.

      Smith thought there was suspicious activity taking place based on things he had

      previously observed, so he turned his vehicle around and went back to the alley.

      Smith parked and saw a passenger get out of the car and walk down the alley;

      the Ford then drove away. Smith recognized the person who exited the Ford as

      Dillon West (“West”), whom Smith had known for a few years. Smith

      approached West and asked him if he was the one stealing from Henry Risner

      (“Risner”), who owned an antiques store and scrap metal business that was

      located nearby. West was wearing an orange sweatshirt, and Smith thought

      West was hiding something underneath it because the sweatshirt bulged from




      1
          See Ind. Code § 35-43-4-2(a).
      2
          See Ind. Code § 35-42-2-1(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 66A03-1510-CR-1645 | April 19, 2016   Page 2 of 9
      West’s body and West was holding his arms under the bulge. Smith had his

      video camera with him and began recording the encounter due to the fact he

      thought West was stealing something. When Smith asked West if he was

      stealing from Risner, West did not answer and started walking toward Boston

      Street where the Ford had returned.


[4]   Smith followed West and videotaped the occupants of the Ford. Smith

      observed a man, who was later identified as Keeton, in the driver’s seat and two

      women in the back seat. When they saw Smith videotaping them, the

      occupants of the car ducked down, and Keeton pulled his jacket over the top of

      his head as he drove away. Smith, still believing that Keeton and the others

      were involved with stealing from Risner, got into his vehicle and began to

      follow the Ford. As he followed Keeton, Smith called the Pulaski County

      Sheriff’s Department, gave dispatch the license plate number for the Ford, and

      informed them that he was following the Ford, which he thought had stolen

      items inside. While following the Ford, Smith saw Keeton throw a blue plastic

      bottle out of the driver’s side window. The Ford eventually turned onto County

      Road 1000 West and stopped after traveling about three-quarters of a mile.

      Smith stopped his vehicle about 150 feet behind the Ford. Smith was still

      recording the events, and his video camera was located on the dashboard,

      slightly off center and closer to the driver’s seat.


[5]   Smith remained in his vehicle, but Keeton exited the Ford and walked toward

      Smith’s vehicle. Smith could tell that Keeton was very upset because his face

      was red, and he was throwing his arms around. Smith rolled his window

      Court of Appeals of Indiana | Memorandum Decision 66A03-1510-CR-1645 | April 19, 2016   Page 3 of 9
      halfway down, and Keeton angrily asked him, “What the F are you, what the F

      are you doing?” Tr. at 132. Keeton looked inside Smith’s vehicle, saw the

      video camera, and reached in and grabbed the camera off of the dashboard.

      Keeton began to pull the camera out of the vehicle, and Smith grabbed the

      sleeve of Keeton’s coat to attempt to stop him from taking the camera. Keeton

      was able to pull the camera out of Smith’s vehicle while Smith maintained a

      hold on his sleeve. When Smith’s arm was outside of the window, Keeton

      pulled Smith’s arm downward onto the partially-opened window, causing

      Smith to let go of Keeton’s sleeve. Smith’s arm hit the window with enough

      force that it damaged the window, causing it to come off the track of the door

      and no longer move up or down.


[6]   Keeton went back to the Ford carrying Smith’s video camera. When Keeton

      drove away, Smith again followed him and observed West throwing items out

      of the passenger side window. As Smith followed the Ford, he maintained

      communication with dispatch. Sheriff’s deputies were dispatched and came

      upon the Ford on State Road 39 near County Road 700 South. The deputies

      initiated a traffic stop on the Ford due to the fact that Keeton was driving left of

      the center line. After obtaining identification from the occupants of the Ford,

      the deputies received consent from Keeton to search the Ford. Inside the car,

      the police found a container of Liquid Fire and coffee filters under the front

      passenger seat and plastic baggies in the glove box. Smith informed the

      deputies of the locations where he had seen Keeton and West throwing items

      out of the Ford. The deputies searched the area and found items Smith had


      Court of Appeals of Indiana | Memorandum Decision 66A03-1510-CR-1645 | April 19, 2016   Page 4 of 9
      described observing being thrown, including cold packs and a bottle of Drano.

      Smith returned the next day and recovered the lens to his video camera, but was

      not ever able to locate the rest of the camera. Smith also found a blue bottle

      which appeared to be part of a “one pot” methamphetamine manufacturing

      method and was later determined to contain “pill dough.” Id. at 209, 211.


[7]   On February 27, 2015, the State charged Keeton with possession of chemical

      reagents or precursors with intent to manufacture a controlled substance as a

      Level 6 felony, theft as a Class A misdemeanor, and battery as a Class A

      misdemeanor. A jury trial was held, and at the conclusion, Keeton was found

      guilty of Class A misdemeanor theft and Class B misdemeanor battery as a

      lesser included offense. He was found not guilty of possession of chemical

      reagents or precursors with intent to manufacture a controlled substance.

      Keeton now appeals his convictions.


                                     Discussion and Decision
[8]   The deferential standard of review for sufficiency claims is well settled. When

      we review the sufficiency of evidence to support a conviction, we do not

      reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

      928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

      evidence most favorable to the verdict and the reasonable inferences that can be

      drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

      2014), trans. denied. We will not disturb the jury’s verdict if there is substantial

      evidence of probative value to support it. Id. A conviction may be based upon


      Court of Appeals of Indiana | Memorandum Decision 66A03-1510-CR-1645 | April 19, 2016   Page 5 of 9
       circumstantial evidence alone. Boggs, 928 N.E.2d at 864. We will affirm unless

       no reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009),

       trans. denied. As the reviewing court, we respect “the jury’s exclusive province

       to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005).


[9]    Keeton argues that the State failed to present sufficient evidence to support both

       his theft and battery convictions. He specifically alleges that, as to his battery

       conviction, the evidence presented showed that he never touched Smith;

       instead, it was Smith who touched him when he grabbed Keeton’s sleeve.

       Additionally, he contends that, even if he touched Smith, it was not intentional

       or knowing or done in a rude, insolent, or angry manner. As to his theft

       conviction, Keeton claims that evidence did not prove that he knowingly or

       intentionally exerted unauthorized control over Smith’s video camera because

       he and his three passengers all testified that the Ford never stopped after leaving

       the alley area until the traffic stop was initiated by the deputies, and therefore,

       he never took Smith’s video camera. He further asserts that, although a single

       eyewitness’s testimony can be sufficient to support a conviction, Smith’s

       testimony “was so suspect” that “it alone could not constitute proof beyond a

       reasonable doubt.” Appellant’s Br. at 16.


[10]   In order to convict Keeton of Class B misdemeanor battery, the State was

       required to prove beyond a reasonable doubt that he knowingly or intentionally

       touched another person in a rude, insolent, or angry manner. Ind. Code § 35-

       Court of Appeals of Indiana | Memorandum Decision 66A03-1510-CR-1645 | April 19, 2016   Page 6 of 9
       42-2-1(b)(1). “While battery requires [a] defendant to have intended to touch

       another person, [the] defendant need not personally touch another person since

       battery may be committed by the unlawful touching by defendant or by any

       other substance put in motion by defendant. Matthews v. State, 476 N.E.2d 847,

       850 (Ind. 1985) (citing Reed v. State, 255 Ind. 298, 302, 263 N.E.2d 719, 722

       (1970). “[A]ny touching of the person in an angry, revengeful, rude, or insolent

       manner; spitting upon the person; jostling him out of the way; pushing another

       against him; throwing a squib or any missile, or water upon him; striking the

       horse he is riding, whereby he is thrown; taking hold of his clothes in an angry

       or insolent manner, to detain him, is a battery.” Kirland v. State, 43 Ind. 146,

       149 (1873).


[11]   Here, the evidence most favorable to the verdict showed that, when Smith and

       the Ford were pulled over on the side of the road, Keeton exited the Ford and

       approached Smith, appearing very upset with a red face and gesturing wildly

       with his arms. When Keeton reached Smith’s vehicle, he uttered obscenities to

       Smith and then reached in to grab Smith’s video camera. As Keeton was taking

       the camera, Smith grabbed onto Keeton’s sleeve to try to stop him from stealing

       the camera. When Smith’s arm was outside of the window, Keeton

       intentionally pulled Smith’s arm downward onto the partially-opened window,

       which caused Smith to let go of Keeton’s sleeve. Smith’s arm hit the window

       with enough force that it caused Smith physical pain and damaged the window.

       Although Smith grabbed Keeton’s sleeve in an attempt to stop him from

       stealing the video camera, it was Keeton who caused the battery by


       Court of Appeals of Indiana | Memorandum Decision 66A03-1510-CR-1645 | April 19, 2016   Page 7 of 9
       intentionally pulling Smith’s arm in a downward motion and causing it to

       collide with the window. We conclude that sufficient evidence was presented

       to support Keeton’s conviction for Class B misdemeanor battery. Keeton’s

       contentions are merely requests for us to reweigh the evidence, which we

       cannot do. Boggs, 928 N.E.2d at 864.


[12]   In order to convict Keeton of Class A misdemeanor theft, the State was

       required to prove beyond a reasonable doubt that he knowingly or intentionally

       exerted unauthorized control over property of another person, with intent to

       deprive the other person of any part of its value or use. Ind. Code § 35-43-4-

       2(a). “A conviction can be sustained on only the uncorroborated testimony of a

       single witness, even when that witness is the victim.” Bailey v. State, 979 N.E.2d

       133, 135 (Ind. 2012).


[13]   In the present case, the evidence most favorable to the jury’s verdict showed

       that when Keeton approached Smith’s vehicle and noticed the video camera

       inside, he reached in, grabbed the camera, and removed it from Smith’s vehicle.

       Keeton then walked back to the Ford with the video camera and never returned

       it to Smith. Therefore, Smith’s testimony established that he had a video

       camera located on the dashboard of his vehicle, that Keeton reached in and

       removed it from the vehicle without Smith’s authorization, and that Keeton

       walked back to the Ford with the camera, permanently depriving Smith of the

       camera’s value or use. We conclude that sufficient evidence was presented to

       support Keeton’s conviction for Class A misdemeanor theft. Keeton’s

       arguments to the contrary are invitations for this court to reweigh the evidence

       Court of Appeals of Indiana | Memorandum Decision 66A03-1510-CR-1645 | April 19, 2016   Page 8 of 9
       and judge the credibility of the witnesses, which we cannot do. Boggs, 928

       N.E.2d at 864.


[14]   Affirmed.


[15]   Riley, J., and Pyle, J., concur.




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