MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Sep 14 2016, 9:39 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Meggan Smith                                             Gregory F. Zoeller
Marion County Public Defender’s Office                   Attorney General of Indiana
Indianapolis, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Denise Stone,                                            September 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1602-CR-310
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen W. Marchal,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Stanley Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G15-1503-CM-9514



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016    Page 1 of 6
                                       Statement of the Case
[1]   Denise Stone (“Stone”) appeals her conviction by jury of theft as a Class A

      misdemeanor. Her sole argument is that the trial court abused its discretion

      when it excluded testimony from her thirteen-year-old daughter, T.H., that

      T.H. had previously shoplifted at Target. Finding that this evidence was not

      relevant, we conclude that the trial court did not abuse its discretion and affirm.


[2]   We affirm.


                                                     Issue
              Whether the trial court abused its discretion in excluding
              evidence.


                                                     Facts
[3]   On March 15, 2015, Stone, T.H., Stone’s sister, and Stone’s nephew went to an

      Indianapolis Old Navy store. As Stone entered the store with a large brown

      purse that appeared to be empty, she looked around the store to see where the

      cameras were placed and the employees were positioned. T.H. walked to the

      middle of the store and appeared to act as a lookout. These were “red flag

      behaviors” to loss prevention lead Brian Peterson (“Peterson”). (Tr. 28).

      Peterson watched Stone go to the back of the store, make quick merchandise

      selections without looking at prices or sizes, carry the merchandise behind a

      display stand, and place it in her purse. Peterson never lost sight of Stone and

      never saw anyone else put anything in her purse.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016   Page 2 of 6
[4]   Thereafter, the group “kind of reconvened” and got in line at a register. (Tr.

      31). Stone’s sister returned some merchandise, but Stone made no attempt to

      remove or pay for the items she had placed in her purse. As Stone exited the

      store through a first set of doors, Peterson identified himself, told Stone that he

      had seen her conceal merchandise in her purse without paying for it, and asked

      her to return to the store to fill out some paperwork. Stone initially started to

      go back into the store but then became combative and resistant. She and

      Peterson were each pulling on the purse when a store manager approached the

      scuffle and helped Peterson gain control of the purse. Stone and her family fled

      the store, got in their car, and immediately left the premises. Peterson was able

      to get a license plate number and a vehicle description. In addition, he found

      Stone’s identification card in the purse.


[5]   The State charged Stone with theft as a Class A misdemeanor for “knowingly

      or intentionally exert[ing] unauthorized control over the property of Old Navy,

      to-wit: clothing, with the intent to deprive Old Navy of any part of the use or

      value of the property.” (App. 16). At trial, Peterson identified photographs of

      the eighteen articles of clothing that were found in Stone’s purse.


[6]   During Stone’s case-in-chief, T.H. testified that she put the articles of clothing

      in her mother’s purse. The trial court excluded T.H.’s testimony that she had

      previously shoplifted from Target. During an offer of proof, T.H. testified that

      at some point during the last four years, she had gone to Target with her cousin

      and shoplifted headphones and a phone case. A Target employee saw her

      leaving the store with the items and told her to put them back.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016   Page 3 of 6
[7]    At the conclusion of the trial, the jury convicted Stone of Class A misdemeanor

       theft. She appeals.


                                                   Decision
[8]    Stone argues that the trial court abused its discretion in excluding evidence.

       Specifically, she contends that the trial court abused its discretion when it

       excluded testimony from T.H. that T.H. had previously shoplifted at Target.


[9]    The exclusion of evidence falls within the sound discretion of the trial court,

       and we review the exclusion of evidence for an abuse of discretion. Luke v.

       State, 51 N.E.3d 401, 415 (Ind. Ct. App. 2016), trans. denied. An abuse of

       discretion occurs where the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances. Id. When reviewing a decision under an

       abuse of discretion standard, we will affirm if there is any evidence supporting

       the decision. Thompson v. State, 15 N.E.3d 1097, 1101 (Ind. Ct. App. 2014),

       reh’g denied. A claim of error in the exclusion of evidence will not prevail on

       appeal unless a substantial right of the party is affected. Ind. Evidence Rule

       103(a). In determining whether error in the introduction of evidence affected a

       defendant’s substantial rights, we assess the probable impact of the evidence on

       the jury. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000).


[10]   Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or

       other act is not admissible to prove a person’s character in order to show that on

       a particular occasion the person acted in accordance with that character.”

       However, Indiana Evidence Rule 404(b)(2) allows the introduction of other

       Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016   Page 4 of 6
       crimes and wrongs for purposes other than proving propensity to commit the

       charged crime, such as proving motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident. To be admissible

       under this exception, the evidence must be relevant to some matter other than

       the defendant’s propensity to commit the crimes and the prejudicial effect of the

       evidence must not substantially outweigh its probative value pursuant to

       Indiana Evidence Rule 403. Thompson, 15 N.E.3d at 1102. A trial court’s

       discretion in admitting evidence of prior bad acts includes determining the

       significance of the similarity or remoteness of the evidence. Hicks v. State, 690

       N.E.2d 215, 220 (Ind. 1997).


[11]   Under what has come to be called “reverse 404(b),” a defendant can introduce

       evidence of someone else’s conduct if it tends to negate the defendant’s guilt.

       Garland v. State, 788 N.E.2d 425, 429 (Ind. 2003). The admissibility of evidence

       about prior bad acts by persons other than defendants is subject to Rule 404(b).

       Id. at 430.


[12]   Here, Stone contends that “[t]he identity of the person who put several items of

       Old Navy merchandise into Ms. Stone’s purse was a central issue at her trial. . .

       . [e]vidence of T.H.’s prior theft should have been admitted to show the

       identity of the person who committed the theft . . . . T.H.’s prior theft was

       ‘strikingly similar’ to the theft from Old Navy.” (Stone’s Br. 9, 10).


[13]   Stone’s argument fails for two reasons. First, the identity of the person who

       placed the merchandise into Stone’s purse was not at issue, and was therefore


       Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016   Page 5 of 6
       not relevant. Peterson testified that he watched Stone go to the back of the

       store, make quick merchandise selections without looking at prices or sizes,

       carry the merchandise behind a display stand, and place it in her purse.

       Peterson never lost sight of Stone and never saw anyone else put anything in

       the purse. Stone’s identification card was found in the purse. Second, T.H.’s

       prior shoplifting experience at Target was not similar to the theft from Old

       Navy. At Target, T.H. was with her cousin when she attempted to take

       earphones and a phone case. A Target employee saw her leaving the store with

       the merchandise and told her to put them back. The theft at Old Navy involved

       placing eighteen items of clothing in a purse that was brought into the store for

       that purpose. T.H. went to Old Navy with her mother, who looked around for

       cameras and employees after she entered the store. In addition, T.H. did not

       remember when the Target incident had occurred. She only knew that it

       happened after her father had died four years before. Based on the foregoing,

       the trial court did not abuse its discretion in excluding T.H.’s testimony that she

       had previously shoplifted at Target.


[14]   Affirmed.


       Bradford, J, and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-310 | September 14, 2016   Page 6 of 6
