Pursuant to Ind. Appellate Rule 65(D), this

                                                               FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
                                                             Feb 21 2012, 9:39 am
the defense of res judicata, collateral
estoppel, or the law of the case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court



ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                                  GREGORY F. ZOELLER
Frischkorn Law LLC                                  Attorney General of Indiana
Fortville, Indiana
                                                    BRIAN REITZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

JAY WALLACE,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 29A02-1107-CR-645
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                          The Honorable J. Richard Campbell, Judge
                              Cause No. 29D04-1007-FD-3456



                                        February 21, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                              Case Summary

       Tony Horn gave Jay Wallace $1500 in cash to buy materials to do plumbing work that

Wallace had agreed to perform in Horn‟s basement. Although Wallace promised to purchase

materials and begin the work immediately, Wallace never returned to Horn‟s residence. For

more than ten days, Wallace did not begin the work and refused to return the money to Horn.

A jury found Wallace guilty of class D felony theft, and the trial court sentenced Wallace to

a 1095-day sentence, with 365 days executed in the Department of Correction, 365 days

executed on work release, and 365 days suspended to probation. Wallace contends that the

evidence is insufficient to sustain his conviction, that the trial court abused its discretion

when it admitted certain evidence, and that his sentence is inappropriate in light of the nature

of the offense and his character. Finding the evidence sufficient, no abuse of discretion, and

concluding that Wallace did not meet his burden to show that his sentence is inappropriate,

we affirm.

                                    Facts and Procedural History

       The facts most favorable to the jury‟s verdict indicate that in May 2010, Horn decided

to finish his basement. He wanted the finished basement to include a full bathroom. In order

to achieve this, Horn looked for local plumbers on Craigslist.1 Horn contacted three

plumbers, one of whom was Wallace, to obtain quotes. On May 3, 2010, Wallace traveled to

Horn‟s home and took measurements. Within a few hours, Wallace emailed Horn a quote of



       1
           As noted by both parties, Craigslist is an online user-generated classified advertising forum.



                                                       2
$2499 for completion of the plumbing project. Wallace‟s bid for the project was in the

middle of the three quotes Horn obtained – cheaper than one, and more expensive than the

other.

         On Wednesday, May 5, 2010, Horn called Wallace to inform him that he wanted to

hire Wallace for the project. Wallace came to Horn‟s house that evening. Wallace told Horn

that he needed $1500 in advance to purchase materials for the project. Although Horn was

“not real comfortable” giving Wallace money prior to any work being completed, he did give

Wallace fifteen $100 bills and asked him to sign a receipt for the money. Tr. at 36-37.

Wallace signed the receipt and indicated that he would immediately travel to a plumbing

supply store to get materials. Wallace stated that he would rent a jackhammer and return that

night to “bust up the concrete floor.” Id. at 37. Wallace did not return to Horn‟s residence

that night. Instead, he called Horn and told him that traffic was bad and that he would not

make it back. Wallace agreed that he would return to the residence at 8:00 the next morning

to begin work.

         The next morning, Thursday May 6, Wallace did not return. He texted Horn that he

was in the hospital with his girlfriend because she was being checked for chest pain. He said

that he would be at Horn‟s later that day or, at the latest, the following morning. On Friday,

May 7, at 9:17 a.m., Wallace informed Horn that he was still at the hospital but just waiting

for the last doctor to come in to release his girlfriend. He stated that he would soon be at

Horn‟s house to begin work. When Horn had not heard from Wallace that evening, he texted

Wallace inquiring as to his whereabouts and requesting that Wallace call him. Wallace


                                              3
declined to call and instead merely text messaged Horn that he was still at the hospital. Horn

texted Wallace that “I either need to get my money back so I can hire someone or you need to

start this job.” State‟s Ex. 4.

       On Saturday, May 8, Horn texted Wallace and asked him again to return the money.

Wallace indicated that he was still at the hospital. Horn texted, “What hospital? I will come

to you and get my money.” Id. Wallace responded, “I[‟]ll be ther[e].” Id. Wallace did not

come to Horn‟s residence and did not respond to repeated inquires about repaying the money

or about when he could begin the job. Wallace eventually texted Horn stating that Horn

could not hire another contractor because he had a contract with Wallace, that Wallace would

maybe start the job the following weekend, and that now they were testing Wallace‟s

girlfriend for cancer. He refused to telephone Horn despite repeated requests. Meanwhile,

Horn discovered that Wallace‟s business name, “J & M Heating and Cooling, Plumbing,

Inc.,” was continually posting updated advertisements for new jobs on Craigslist. Horn could

not understand how Wallace could be looking for new jobs when he could not even begin the

one that Horn had already given him money for. Tr. at 42-43.

       Consequently, Horn contacted Officer Matt Griffin of the Noblesville Police

Department. Officer Griffin offered to contact Wallace and attempt to mediate the situation.

Officer Griffin called Wallace. Wallace told Officer Griffin that his girlfriend was in the

hospital but refused to tell Officer Griffin his girlfriend‟s name or which hospital. Wallace

hung up on Officer Griffin “numerous times,” cursed at Officer Griffin, and refused to give

any explanation for his unwillingness to return Horn‟s money or to begin the job.


                                              4
       On May 9, Horn left a voicemail for Wallace again asking for Wallace to return his

money. Ten to fifteen minutes later, Wallace called Horn. Wallace was irate and threatened

Horn that “you have no idea who you are f***ing with … I can come in your home and you

won‟t even know that I am there. I know where you live.” Id. at 49. At the urging of

Officer Griffin, Horn continued to correspond with Wallace via texting until Sunday, May

16, 2010. Wallace had promised to arrive at Horn‟s house that morning to finally begin the

work. Wallace did not. As of that date, Wallace had neither returned any money to Horn nor

completed any work on the plumbing project.

       On July 19, 2010, the State charged Wallace with class D felony theft and class A

misdemeanor intimidation. A jury trial was held on May 26, 2011. The jury found Wallace

guilty of class D felony theft and not guilty of class A misdemeanor intimidation. Following

a sentencing hearing, the trial court sentenced Wallace to 1095 days, with 365 days executed

in the Department of Correction, 365 days executed in the Hamilton Community Correction

Work Release program, and 365 days suspended to probation. This appeal ensued.

                                  Discussion and Decision

                               I. Sufficiency of the Evidence

       Wallace first challenges the sufficiency of the evidence to support his theft conviction.

Our standard of review is well settled:

       Upon review of a claim of insufficient evidence, we neither reweigh the
       evidence nor judge the credibility of the witnesses. We will affirm a
       conviction unless, considering only the evidence and reasonable inferences
       favorable to the verdict, we conclude that no reasonable fact-finder could find
       the elements of the crime proven beyond a reasonable doubt. It is therefore not
       necessary that the evidence overcome every reasonable hypothesis of

                                               5
       innocence. Instead, the evidence is sufficient if an inference may reasonably
       be drawn from it to support the jury‟s verdict.

Stokes v. State, 922 N.E.2d 758, 763 (Ind. Ct. App. 2010) (citations omitted), trans. denied.

To convict Wallace of class D felony theft, the State was required to prove that Wallace

knowingly or intentionally exerted unauthorized control over Horn‟s money, with the intent

to deprive Horn of any part of its value or use. See Ind. Code § 35-43-4-2. Control over

property is “unauthorized” if it is exerted “in a manner or to an extent other than that to

which the other person has consented,” or “by promising performance that the person knows

will not be performed.” Ind. Code § 35-43-4-1(b)(2) and -(6).

       Horn gave Wallace $1500 with the sole purpose that Wallace would use the money

that same day to purchase materials and begin a plumbing job. Wallace never returned to

Horn‟s residence with the materials as promised and never performed any part of the job

despite ample opportunity to do so. To no avail, Horn repeatedly expressed his dismay to

Wallace and repeatedly asked for the money or the materials that Wallace supposedly

purchased. Wallace refused to account for the money or the materials. Based upon all the

evidence presented, a reasonable inference was that Wallace never actually purchased the

materials with Horn‟s money. To that extent, it was reasonable for the jury to infer that

Wallace knowingly exerted control over Horn‟s money in a manner or to an extent other than

that to which Horn consented.

       Similarly, there was sufficient circumstantial evidence to support the conclusion that

Wallace promised performance that Wallace knew would not be performed. Based upon

Wallace‟s behavior from May 5, through May 16, the jury could reasonably infer that, from

                                             6
the beginning, Wallace never actually intended to perform the plumbing job at Horn‟s

residence. Indeed, when given the opportunity to remedy the situation and/or to explain his

behavior, Wallace refused to cooperate with Officer Griffin, who was merely trying to help

Wallace avoid criminal liability. The State presented sufficient evidence from which the jury

could conclude that Wallace‟s control over Horn‟s money was unauthorized when he

promised performance that he knew would not be performed.

       On appeal, Wallace merely points to his self-serving testimony that he did purchase

materials with Horn‟s money and that he intended to perform the plumbing job at the time he

took Horn‟s money. Wallace asks us to reweigh the evidence and reassess witness credibility

in his favor, tasks not within our prerogative on appeal. The State presented sufficient

evidence to sustain Wallace‟s conviction for class D felony theft.

                                 II. Admission of Evidence

       Wallace additionally claims that the trial court abused its discretion when it admitted

evidence that his company continued to post advertisements for new jobs on Craigslist while

Wallace claimed to be at the hospital and unable to perform the job at Horn‟s residence.2 We

need not address the merits of this claim, as any error in the admission of this evidence by the

trial court was harmless. “Error is harmless if „the conviction is supported by substantial

independent evidence of guilt as to satisfy the reviewing court that there is no substantial

likelihood that the questioned evidence contributed to the conviction.‟” Tolliver v. State, 922



       2
          Wallace objected to the evidence on hearsay grounds and on grounds that there was “an
authentication issue.” Tr. at 41-42.


                                               7
N.E.2d 1272, 1278 (Ind. Ct. App. 2010) (quoting Cook v. State, 734 N.E.2d 563, 569 (Ind.

2000)), trans. denied. As illustrated above, we are confident that the State presented

substantial independent evidence of Wallace‟s guilt such that there is no substantial

likelihood that the challenged evidence contributed to his theft conviction.

                            III. Appropriateness of Sentence

       Wallace maintains that his sentence is inappropriate in light of the nature of the

offense and his character. The sentencing range for a class D felony is between six months

and three years, with the advisory sentence being eighteen months. Ind. Code § 35-50-2-7.

Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence authorized by statute if,

after due consideration of the trial court‟s decision, we find that the sentence “is

inappropriate in light of the nature of the offense and the character of the offender.” The

defendant bears the burden to persuade this Court that his or her sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[W]hether we regard a sentence as

appropriate at the end of the day turns on our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other factors that come to light

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

       Regarding the nature of the offense, the advisory sentence is the starting point the

legislature has selected as an appropriate sentence for the crime committed. Anglemyer v.

State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. Here, Wallace

claims that rather than the maximum three-year sentence for class D felony theft imposed by

the trial court, his behavior warranted much less, as this case would have been better suited


                                             8
for a civil small claims action. However, Wallace has no one to blame but himself. He took

Horn‟s money, offered questionable excuses for continually failing to perform, and refused to

return the money despite numerous requests. He left an innocent homeowner feeling helpless

and cheated. Significantly, when given the opportunity to avoid criminal liability, Wallace

unequivocally refused to cooperate with law enforcement. Under the circumstances, Wallace

has not shown that the nature of his offense, or what we may describe as an apparent scam,

warrants a lesser sentence than that imposed by the trial court.

       Regarding his character, Wallace has similarly not met his burden to show that a lesser

sentence is appropriate. Wallace has an extensive criminal history consisting of at least

fifteen misdemeanor convictions and one felony conviction. As noted by the State, Wallace

has had his probation revoked three times. During sentencing in the instant case, Wallace

indicated no remorse, continually blamed the victim, and accepted no responsibility for his

crime. Consequently, we affirm Wallace‟s sentence and decline his invitation to second-

guess the trial court.

       Affirmed.

MAY, J., and BROWN, J., concur.




                                              9
