      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                FILED
      regarded as precedent or cited before any                       Jan 31 2020, 6:08 am
      court except for the purpose of establishing                         CLERK
      the defense of res judicata, collateral                          Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      – Appellate Division
                                                               Angela N. Sanchez
      Indianapolis, Indiana                                    Assistant Section Chief –
                                                               Criminal Appeals
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      India Covington,                                         January 31, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-1186
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable David M. Hooper,
      Appellee-Plaintiff.                                      Magistrate
                                                               Trial Court Cause No.
                                                               49G08-1809-CM-29316



      Mathias, Judge.


[1]   India Covington (“Covington”) appeals her conviction, following a bench trial,

      of Class A misdemeanor theft. Covington argues that the evidence is

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1186 | January 31, 2020         Page 1 of 6
      insufficient to support her conviction because the State failed to prove beyond a

      reasonable doubt that she acted with the intent to deprive Meijer of the use or

      value of the items found in her possession.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 20, 2018, a Meijer employee alerted Indianapolis Metropolitan

      Police Officer Nicholas Snow (“Officer Snow”) to a woman exiting the store

      with merchandise she had not paid for. Officer Snow intercepted Covington in

      the store’s parking lot. Covington was pushing a cart with unbagged

      merchandise and could not produce a receipt for the items. Officer Snow

      handcuffed Covington and was joined in the parking lot by Danielle Grimes

      (“Grimes”), a Meijer loss prevention employee. Covington was searched, and

      in her purse, Officer Snow discovered tagged DVDs and a tool used to remove

      tags. A Meijer employee returned the unpurchased items to the store. They

      included health and beauty products, DVDs, and a griddle, and totaled $169.57.


[4]   The State charged Covington with Class A misdemeanor theft on September 1,

      2018. She was tried to the bench on April 29, 2019, at which time Officer Snow,

      Grimes, and Covington testified. Grimes explained that on August 20, a Meijer

      employee stationed at the store’s doors called her to report that Covington had

      exited the store without paying for merchandise, and Grimes “ran outside” to

      address the situation. Tr. p. 10. Grimes later reviewed security video footage

      and observed Covington, pushing a shopping cart, walk in front of the self-

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1186 | January 31, 2020   Page 2 of 6
      checkout area and past the greeter stand. Covington “look[ed] to the right to see

      if [the] greeter has continued to follow” and then exited the store “past all

      points of sale.” Tr. pp. 17–18.


[5]   Covington’s explanation was that she left the store without paying for some

      merchandise because she lost track of her fifteen-year-old sister. Covington

      “panicked” and left the store to look for her sister in the parking lot, not

      intending to neglect to pay for the items in her cart. Tr. p. 23. Covington did not

      tell this to Officer Snow when she was apprehended.


[6]   The trial court found Covington guilty as charged and sentenced her to 365

      days of incarceration, with credit for two days and the remainder suspended.

      Covington was ordered to complete forty hours of community service. This

      appeal followed.


                                     Discussion and Decision
[7]   Covington argues that there is insufficient evidence to support her conviction

      for theft because the State failed to prove that she acted with the requisite

      criminal intent. Our standard of review for sufficiency of the evidence claims is

      well settled. The decision comes before us with a presumption of legitimacy,

      and we will not substitute our judgment for that of the fact finder. Binkley v.

      State, 654 N.E.2d 736, 737 (Ind. 1995). We consider only the probative

      evidence and reasonable inferences supporting the verdict, and do not reweigh

      the evidence or judge witness credibility. Drane v. State, 867 N.E.2d 144, 146



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1186 | January 31, 2020   Page 3 of 6
       (Ind. 2007). We will affirm the conviction unless no reasonable fact finder could

       find the elements of the crime proven beyond a reasonable doubt. Id.


[8]    A person commits Class A misdemeanor theft when that person “knowingly or

       intentionally exerts 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 person engages in conduct ‘intentionally’ if, when [she]

       engages in the conduct, it is [her] conscious objective to do so.” I.C. § 35-41-2-

       2(a). “A person engages in conduct ‘knowingly’ if, when [she] engages in the

       conduct, [she] is aware of a high probability [she] is doing so.” I.C. § 35-41-2-

       2(b). The mens rea of a crime “may be proven by circumstantial evidence alone,

       and may be inferred from the facts and circumstances of each case.” Baxter v.

       State, 891 N.E.2d 110, 121 (Ind. Ct. App. 2008).


[9]    Covington argues that the State did not present sufficient evidence of her

       knowledge or intent because there was no evidence that she concealed the

       merchandise or attempted to flee with the merchandise off of Meijer’s property.

       She further contends that the security video footage displayed “no evidence of

       suspicious behavior” and that the State presented “no evidence to disprove [her]

       explanation of the events.” Appellant’s Br. at 9. We disagree.


[10]   The State presented evidence that Covington exited Meijer with items that she

       had not purchased in a shopping cart and in her purse. Indiana Code section

       35-43-4-4(c) provides that evidence of a person (1) concealing property offered

       for sale and (2) removing the property from “any place within the business


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1186 | January 31, 2020   Page 4 of 6
       premises at which it was displayed or offered to a point beyond that at which

       payment should be made” constitutes prima facie evidence of “intent to deprive

       the owner of the property of a part of its value and that the person exerted

       unauthorized control over the property.” (Emphasis added). That Covington

       used her purse to conceal and remove merchandise from the store, past the

       point at which payment should have been made, thus constitutes prima facie

       evidence of her intent to deprive Meijer of the value of the property. See I.C. §

       35-43-4-4(c); Hartman v. State, 164 Ind. App. 356, 357, 328 N.E.2d 445, 447

       (Ind. Ct. App. 1975) (holding there was sufficient evidence to give rise to an

       inference the defendant exerted unauthorized control when store employees

       caught defendant with merchandise concealed under his jacket a few feet from

       the store doors).


[11]   Furthermore, the State presented evidence that Covington behaved in a way

       that suggested she acted with the knowledge or intent to deprive the store of the

       merchandise’s value or use. Officer Snow testified that when he asked

       Covington whether she had paid for the items in the cart, Covington replied

       that she had paid. Tr. p. 25. Yet, Covington could not produce a receipt for any

       of the items in her possession. A review of the security video footage did not

       support her claim that the merchandise was paid for. Covington told Grimes

       that her boyfriend had purchased the items and that he had the receipts. Tr. p.

       26. Again, no receipts were produced by any individual. Covington did not

       attempt to explain to Officer Snow or to Grimes that she exited the store

       without paying for the items because she was looking for her lost sister. Her


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1186 | January 31, 2020   Page 5 of 6
       argument that her actions were due to an “honest mistake” is simply a request

       to reweigh the evidence and to substitute our judgment of the witnesses’

       credibility for that of the trial court, which we will not do. Tr. p. 23.

       Accordingly, we find that sufficient evidence supports the trial court’s

       determination that Covington knowingly or intentionally exerted control over

       Meijer’s merchandise with the intent to deprive Meijer of its value or use.


                                                 Conclusion
[12]   The State presented sufficient evidence that Covington deprived Meijer of the

       value or use of the items in the shopping cart and her purse, and that she did so

       knowingly or intentionally. Thus, sufficient evidence supports Covington’s

       conviction for Class A misdemeanor theft.


[13]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1186 | January 31, 2020   Page 6 of 6
