MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Mar 15 2017, 7:04 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
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         Matthew B. MacKenzie
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charlene Renier,                                         March 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A05-1607-CR-1709
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard
Appellee-Plaintiff.                                      Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1506-F5-55



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017   Page 1 of 10
                                Case Summary and Issue
[1]   Following a jury trial, Charlene Renier was convicted of corrupt business

      influence as a Level 5 felony and conspiracy to commit theft as a Level 6

      felony. Renier appeals her convictions, raising two issues for our review, one of

      which we find dispositive: whether the State presented sufficient evidence to

      sustain Renier’s conviction for corrupt business influence. Concluding the State

      did not present sufficient evidence, we reverse and remand.



                            Facts and Procedural History
[2]   On May 9, 2015, a store employee from a Walmart located in Logansport,

      Indiana, discovered an empty cell phone box and assumed the cell phone was

      stolen. Asset Protection Manager Brady Herrington reviewed surveillance

      footage and observed at least three individuals grouped together in the cell

      phone aisle, where one individual opened a cell phone package and concealed a

      cell phone under his or her clothing. The individuals, two of whom who were

      later identified as Kenny Purvis and Adam Wakefield, were also seen on

      surveillance footage stealing several video games. The individuals then exited

      the store without paying for the merchandise and drove away in a red truck. 1




      1
       During opening statements at trial, the State acknowledged Renier was not among the individuals who
      were in the Walmart on May 9, 2015.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017        Page 2 of 10
[3]   On May 15, 2015, store employees notified Herrington that keeper boxes were

      discovered empty near the electronics aisle.2 Herrington reviewed surveillance

      footage and observed Purvis, Wakefield, and an unidentified individual in the

      video game aisle. Although the footage did not capture the individuals stealing

      any merchandise, it does show Wakefield and the unidentified individual at the

      location where the empty keeper boxes were found. The individuals exited the

      parking lot of the store in the same red truck.


[4]   On May 19, 2015, Amy Powers, also a member of Walmart’s asset protection

      group, spotted Purvis, Wakefield, and a woman, later identified as Renier,

      heading toward the store’s electronics department with a shopping cart

      containing clothing items. Given her experience, Powers believed the group

      would use the clothing to conceal store merchandise and called law

      enforcement. Prior to law enforcement arriving, surveillance footage shows

      Renier placing video games into the shopping cart. Footage also shows the trio

      splitting up, with Wakefield taking control of the shopping cart and Purvis and

      Renier looking at DVDs. Soon thereafter, law enforcement arrived and

      escorted Purvis, Wakefield, and Renier to the Asset Protection Office. At the

      time, Wakefield’s shopping cart held $453 worth of merchandise, including a

      copy of the Witcher 3: Wild Hunt video game that had been just released that




      2
       Keeper boxes are clear boxes that provide security for store merchandise and are designed to deter theft.
      Transcript, Volume 1 at 8. Such boxes are often used to protect electronic merchandise, including DVDs and
      video games. Id. If an individual attempts to leave a store without paying for merchandise housed in a
      keeper box, an alarm sounds. Id.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017         Page 3 of 10
      day. Wakefield was also found with empty Walmart plastic bags stuffed in his

      pockets, which Powers later explained is a common method of stealing from

      Walmart. When law enforcement reviewed the surveillance footage, it

      determined the trio travelled to Walmart in Purvis’ mother’s red truck. A

      subsequent search of the truck uncovered eight copies of the Witcher 3 video

      game. Store employees from the Logansport Walmart determined the video

      games were from its store.


[5]   A subsequent investigation into the matter uncovered that Purvis and Renier

      were dating and living together in a residence in Pierceton, Indiana, a small

      town located approximately sixty miles northeast of Logansport. At the time,

      both Purvis and Renier were members of a Facebook group titled Wabash

      County Sell Anything and Everything. Purvis used this Facebook group to sell

      new and unopened video games. On May 9, 2015, Purvis posted to the

      Facebook group a picture of thirteen unopened video games, noting a sale price

      of $30 each.


[6]   On May 26, 2016, the State charged Renier with Count I, corrupt business

      influence, a Level 5 felony; Count II, conspiracy to commit theft, a Level 6

      felony; and Count III, attempted theft, a Level 6 felony. A jury found Renier

      guilty as charged. The trial court entered judgment of conviction on Counts I

      and II and vacated the finding of guilty on Count III. The trial court sentenced

      Renier to an aggregate sentence of four years in the Indiana Department of

      Correction, with the entirety of the sentence suspended to probation. This

      appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017   Page 4 of 10
                                Discussion and Decision
                                     I. Standard of Review
[7]   When reviewing the sufficiency of the evidence to support a conviction, a

      reviewing court shall consider only the probative evidence and reasonable

      inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

      2007). The court neither reweighs the evidence nor reassesses the credibility of

      witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, the court

      must respect the jury’s exclusive province to weigh conflicting

      evidence. Id. Therefore, the court should affirm the conviction unless “no

      reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt.” Drane, 867 N.E.2d at 146-47 (citation omitted).


                              II. Corrupt Business Influence
[8]   Renier contends there is insufficient evidence to sustain her conviction for

      corrupt business influence. Specifically, she argues the State did not establish

      she engaged in a pattern of racketeering activity. We agree.


[9]   Renier was charged and convicted under the following provision of Indiana’s

      Racketeer Influence and Corrupt Organizations (“RICO”) Act: “A person . . .

      who is employed by or associated with an enterprise, and who knowingly or

      intentionally conducts or otherwise participates in the activities of that

      enterprise through a pattern of racketeering activity . . . commits corrupt

      business influence, a Level 5 felony.” Ind. Code § 35-45-6-2(3). “Enterprise”

      can mean a group of people associated in fact. Ind. Code § 35-45-6-1(c)(2). A
      Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017   Page 5 of 10
“pattern of racketeering activity” is defined as “engaging in at least two (2)

incidents of racketeering activity that have the same or similar intent, result,

accomplice, victim, or method of commission, or that are otherwise interrelated

by distinguishing characteristics that are not isolated incidents.” Ind. Code §

35-45-6-1(d). “‘Racketeering activity’ includes committing, attempting to

commit, conspiring to commit, or aiding and abetting in the commission of

theft, among other crimes.” Robinson v. State, 56 N.E.2d 652, 657 (Ind. Ct.

App. 2016) (quoting Ind. Code § 35-45-6-1(e)(14)), trans. denied. Thus, in order

to convict Renier under Indiana Code section 35-45-6-2(3), the State was

required to prove: 1) Renier associated with a group of people, 2) Renier, as a

part of the group, knowingly or intentionally participated in least two instances

of committing, attempting to commit, conspiring to commit, or aiding and

abetting in the commission of a theft,3 and (3) those incidents have the same or

similar intent, result, accomplice, victim, or method of commission, or that are

otherwise interrelated by distinguishing characteristics that are not isolated

events. We now address whether the State submitted evidence sufficient to

establish the second element.4




3
 Although we acknowledge Indiana Code section 35-45-6-1(e) lists numerous crimes satisfying this element
of corrupt business influence, we only note it as theft because the State’s theory is Renier participated in
activity relating to thefts.
4
 Renier does not argue the evidence is insufficient to establish the first element of the crime, i.e. she
associated with an enterprise.

Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017                 Page 6 of 10
[10]   At the outset, we note both parties agree Renier’s conduct captured by

       surveillance footage at the Logansport Walmart on May 19—regardless of

       whether we label her acts as conspiring to commit theft or attempted theft—

       supports a finding of one instance of racketeering activity. However, we

       struggle to find any evidence in the record establishing Renier knowingly or

       intentionally participated in a second instance of racketeering activity. In an

       attempt to satisfy this element of the crime, the State points to evidence that

       Renier and Purvis lived together; Renier was a member of the Facebook group

       Purvis used to sell video games; Purvis and Wakefield previously stole items

       from the Logansport Walmart on May 9, 2015, and May 15, 2015; surveillance

       footage captured Renier putting multiple video games in Wakefield’s shopping

       cart on May 19, 2015; and eight additional copies of Witcher 3, which was

       released for the first time on May 19, 2015, were discovered in the red truck in

       the parking lot. Stated differently, the State believes the evidence establishes

       Renier must have known of Purvis’ scheme, and at some point between the

       theft on May 9, 2015, and the attempted theft on May 19, 2015, knowingly or

       intentionally participated in a second racketeering activity. The State’s position

       is a stretch.


[11]   We conclude this evidence, at most, establishes Renier conspired to commit

       theft, was associated with an enterprise, and knowingly participated in only one

       instance of racketeering activity. The State did not admit any evidence

       establishing Renier had knowledge of, or participated in, Purvis’ scheme prior

       to May 19, 2015. The facts Renier lived with and dated Purvis and Renier was


       Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017   Page 7 of 10
       a member of the same Facebook group used by Purvis to sell video games do

       not prove she had knowledge of the scheme or that she knowingly or

       intentionally participated in any prior thefts or subsequent sales of stolen

       merchandise. As to the eight video games discovered in the red truck, the

       evidence only establishes those games were from the Logansport Walmart store

       and had been released for the first time that day. Thus, this evidence merely

       gives rise to a lone reasonable inference: the games must have been taken and

       placed into the red truck at some point prior to law enforcement detaining the

       trio inside the store. Unlike the other previous thefts, however, there is no

       surveillance footage showing who stole these games, or when and how the theft

       occurred. Thus, the State’s request we infer from the evidence Renier

       participated in a second instance of racketeering activity is unreasonable. We

       therefore conclude the State failed to prove Renier knowingly or intentionally

       participated in a pattern of racketeering activities.


[12]   We also take this opportunity to address our concerns as to the practicality of

       the State’s RICO case against Renier. In Robinson, the defendant was charged

       with, and convicted of, violating the RICO statute after shoplifting from the

       same Walmart store on two separate dates. 56 N.E.3d at 655. On appeal, the

       defendant challenged the sufficiency of his RICO conviction and we concluded

       the State did not present sufficient evidence to sustain the conviction. Id. at

       659. Notwithstanding this conclusion, we also addressed the practical manner

       of the State’s utilization of the RICO statute to charge the defendant:




       Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017   Page 8 of 10
               We simply do not believe the commission of two acts of
               shoplifting of this type is the kind of activity our legislature meant
               to be covered by our RICO statute. We have previously observed
               that our RICO statute “was designed to address the more sinister
               forms of corruption and criminal activity . . . RICO is structured
               to reach and punish these diabolical operations that are a greater
               threat to society than random theft.” Additionally, we have
               described the intent behind RICO laws as permitting cumulative
               punishment and to “seek eradication of organized crime . . . by
               strengthening the legal tools in the evidence-gathering process, by
               establishing new penal prohibitions, and by providing enhanced
               sanctions and new remedies to deal with the unlawful activities
               of those engaged in organized crime.” RICO laws were designed
               “to provide new weapons of unprecedented scope for an assault
               upon organized crime and its economic roots.”


       Id. at 659-60 (alterations in original) (citations, some internal quotation marks,

       and footnotes omitted). We therefore further concluded the defendant did not

       fit the definition of someone involved with any kind of organized crime and

       declined to apply RICO. Id. at 660. Although we acknowledge the evidence in

       the record pertaining to Purvis’ role as the enterprise leader may warrant a

       RICO case against him and such evidence establishes a criminal scheme unlike

       that found in Robinson, we express hesitancy, consistent with Robinson, as to

       whether the State’s theory of Renier’s participation in the enterprise, even

       assuming it is accurate and supported by the evidence, is the kind of activity our

       legislature intended to punish under the RICO statute.


[13]   For these reasons, we conclude the State did not present sufficient evidence to

       sustain Renier’s conviction for corrupt business influence. On remand, we



       Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017   Page 9 of 10
       instruct the trial court to vacate Renier’s conviction and sentence for corrupt

       business influence.5



                                                 Conclusion
[14]   The State’s evidence is insufficient to establish Renier participated in a pattern

       of racketeering activity and therefore her conviction for corrupt business

       influence cannot stand. Accordingly, we reverse and remand with instructions

       for the trial court to vacate Renier’s conviction and sentence for corrupt

       business influence.


[15]   Reversed and remanded.


       Kirsch, J., and Barnes, J., concur.




       5
         Because Renier’s sentence for corrupt business influence cannot stand, we need not address her contention
       that her convictions violate Indiana’s prohibition against double jeopardy.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1607-CR-1709 | March 15, 2017          Page 10 of 10
