MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jul 16 2020, 10:13 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
Ann M Sutton                                              Curtis T. Hill, Jr.
Indianapolis, IN                                          Attorney General of Indiana
                                                          Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Melva Wright,                                             July 16, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2344
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Charnette D.
Appellee-Plaintiff                                        Garner, Judge
                                                          The Honorable Ronnie Huerta,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G09-1810-F6-33847



Altice, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020                    Page 1 of 7
                                                Case Summary


[1]   Melva Wright appeals her conviction of theft as a Level 6 felony. She raises two

      issues on appeal:


      I. Whether the State presented sufficient evidence to convict her of
      theft; and


      II. Whether her 270-day sentence is inappropriate in light of the nature
      of the offense and her character.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Sometime in August 2018, Wright began living at Herbert Smith’s residence.

      The two had not seen each other in many years, having originally met at church

      where Smith was an assistant pastor. After seeing Wright on the street and

      learning that she was homeless, Smith offered her a place to stay. Wright lived

      with Smith for about three months and during that time he bought her food and

      clothing but did not give her a key.


[4]   Smith owned a Samsung smart watch, which he received as part of a package

      deal with his phone and tablet. He occasionally wore the watch, but most of the

      time it remained on a computer stand next to his bed. One day he noticed the

      watch was missing, so he questioned Wright. She denied taking it, but after




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020   Page 2 of 7
      repeated questioning, Wright admitted to pawning it. Smith had not given

      Wright permission to do anything with the watch.


[5]   Wright took Smith to Cash America where she had pawned the watch. After

      locating his watch, Smith was unable to obtain the watch from Cash America

      until law enforcement arrived on scene and made a report. An investigation

      revealed that the watch matched the serial number of Smith’s watch.

      Furthermore, identification information and fingerprint copies taken when the

      watch was pawned matched those of the seller, Wright.


[6]   On October 3, 2018, the State charged Wright with Class A misdemeanor theft

      and Level 6 felony theft. After a jury trial, Wright was convicted of a Class A

      misdemeanor theft, which was enhanced to Level 6 felony theft based on prior

      convictions of theft and robbery. The court then sentenced Wright to 270 days

      in jail. She now appeals.


                                          Discussion & Decision


                                           I. Sufficiency of Evidence


[7]   Wright argues that the State failed to show sufficient evidence to convict her of

      theft. The standard of review for such a claim is well settled. A reviewing court

      must consider only the probative evidence and reasonable inferences supporting

      the conviction and should not assess witness credibility or reweigh the evidence.

      Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The evidence is sufficient if an


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020   Page 3 of 7
       inference may be reasonably drawn from it to support the conviction. Id. at 147.

       Further, a conviction should be upheld unless, “no reasonable fact-finder could

       find the elements of the crime proven beyond a reasonable doubt.” Id. at 146-

       47.


[8]    In order to prove a conviction for theft, the State was required to show, beyond

       a reasonable doubt, that Wright knowingly or intentionally exerted

       unauthorized control over Smith’s Samsung smart watch with the intent to

       deprive Smith of any part of its value or use. See Ind. Code § 35-43-4-2(a).


[9]    Wright contends that there is insufficient evidence to prove that she pawned the

       watch without Smith’s approval. However, she does not dispute that she

       pawned the watch, as evidenced by her identification and fingerprint obtained

       from the pawn store. She claims only that Smith’s testimony is insufficient to

       show that she did not have permission to pawn the watch.


[10]   It is not this court’s responsibility to reweigh evidence or assess witness

       credibility, specifically Smith’s credibility. Here, Smith testified that he did not

       give Wright permission to have his watch or do anything with it, expressly

       testifying that she did not have permission to pawn the watch. Smith housed

       Wright because she was in need of a place to stay and provided her with food

       and clothing. Upon discovering that his watch had disappeared, Smith

       questioned Wright as to its whereabouts and she admitted to pawning it. At no




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020   Page 4 of 7
       point did Smith give Wright permission to do so. For these reasons, we

       conclude that the State presented sufficient evidence to convict Wright of theft.

                                                   II. Sentencing


[11]   Wright contends that her 270-day sentence that is to be executed in jail is

       inappropriate. Sentencing is principally a discretionary function, and therefore

       the trial court’s judgement should receive considerable deference. Cardwell v.

       State, 895 N.E.2d 1219, 1223 (Ind. 2008). Pursuant to Indiana Appellate Rule

       7(b), an appellate court may revise a sentence if it finds that the sentence is

       “inappropriate in light of the nature of the offense and the character of the

       offender.” “The question is not whether another sentence is more appropriate;

       rather, the question is whether the sentence imposed is inappropriate.” Fonner v.

       State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). When considering

       appropriateness, there are myriad of factors to take into account and ultimately

       there is no right answer in determining a proper sentence. Cardwell, 895 N.E.2d

       at 1224. Furthermore, the defendant has the burden of persuading us that his or

       her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[12]   The starting point for an appropriateness analysis is to look at the advisory

       sentence the legislature has selected for the crime committed and compare it to

       the sentence imposed. Connor v. State, 58 N.E.3d 215, 220 (Ind. Ct. App. 2020).

       The sentencing range for a Level 6 felony is between six months and two and a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020   Page 5 of 7
       half years, with an advisory sentence of one year. Ind. Code. § 35-50-2-7(b).

       Wright acknowledges that her sentence is below the advisory sentence but

       argues that it was still too harsh given the petty nature of the offense and the

       steps she is actively taking to improve her character.


[13]   We begin by acknowledging that the nature of the offense is not particularly

       egregious, except that she chose to steal from someone who considered her a

       friend and had been helping her in a time of need. By doing so, she violated

       Smith’s trust and the sanctity of his home. She also denied taking it when Smith

       confronted her about it, only admitting it after his repeated questioning. We

       find nothing about the nature of the offense that warrants a reduction in her

       sentence.


[14]   When considering the character of the offender, we look at “substantial

       virtuous traits or persistent examples of good character.” Moon v. State, 110

       N.E.3d 1156, 1162 (Ind. Ct. App. 2018). Further, “one relevant fact is the

       defendant’s criminal history.” Denham v. State, 142 N.E.3d 514, 517 (Ind. Ct.

       App. 2020).


[15]   The record shows that Wright has an extensive criminal history. She has at least

       eight prior misdemeanor convictions, and five prior felony convictions. These

       crimes include theft, prostitution, resisting law enforcement, robbery, and

       arson. While many of her convictions are dated, we observe that her most

       recent was for a theft committed less than a year before the current incident and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020   Page 6 of 7
       shortly after her release from serving a lengthy sentence for Class B felony

       arson.


[16]   Wright asserts that her efforts in the months leading up to the sentencing to

       improve herself, taking classes at Ivy Tech and applying for housing, reflect

       highly of her character. While we commend her on her recent efforts to

       improve her character, her past convictions cannot be ignored. In light of her

       criminal history and her failure to appear in front of the trial court on multiple

       occasions, Wright’s less than advisory sentence is not inappropriate.


[17]   Wright has failed to show that her sentence of 270 days in jail is inappropriate

       in light of the nature of the offense and her character.


[18]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2344 | July 16, 2020   Page 7 of 7
