Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                      Aug 15 2014, 10:00 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JEREMY K. NIX                                     GREGORY F. ZOELLER
Matheny, Hahn, Denman & Nix, L.L.P.               Attorney General of Indiana
Huntington, Indiana
                                                  ANGELA N. SANCHEZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

STEPHEN W. MCINTYRE,                              )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 35A02-1402-CR-82
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE HUNTINGTON SUPERIOR COURT
                       The Honorable Kenton W. Kiracofe, Special Judge
                               Cause No. 35D01-1304-FD-78



                                        August 15, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Stephen W. McIntyre appeals his conviction for theft, as a Class D felony,

following a jury trial. McIntyre raises the following two issues for our review:

       1.     Whether the trial court abused its discretion when it denied his
              motion for a mistrial; and

       2.     Whether the State presented sufficient evidence to support his
              conviction.

       We affirm.

                      FACTS AND PROCEDURAL HISTORY

       In January and February of 2013, McIntyre worked as a jail officer for the

Huntington County Sheriff’s Department. At that time, Deputy David McVoy began a

“pop fund” at the Sheriff’s station to raise money to help pay the ongoing costs of care

and equipment for Zeek, a canine unit. Tr. at 176. Deputy McVoy stocked an office

refrigerator with cans of soda and placed “an old Folgers can” on top of the refrigerator.

Id. at 179. Anyone who removed a soda would place fifty cents in the coffee can.

       Deputy McVoy purchased the soda with his own money and regularly stocked the

refrigerator. He also placed loose coins and dollar bills in the coffee can so participants

could make change as needed. This money was also personally provided by Deputy

McVoy.

       Deputy McVoy was “the only one [who] touched the money” and neither he nor

Sheriff Terry Stoffel “authorize[d] anyone else to remove money from the Folgers can

other than for the purpose of making change.” Id. at 181. Deputy McVoy checked the

contents of the coffee can at least once per day. He would remove any bills over $5


                                             2
“fairly quick,” but he would “usually leave . . . three or four or five ones in there just in

case somebody needed to make change . . . .” Id. at 211. When he would remove the

coins, the total dollar amount in coinage was typically about sixty to seventy dollars.

Aside from small purchases for Zeek that he could make immediately, Deputy McVoy

submitted all money removed from the coffee can to the Sheriff Department’s “matron,”

the Department’s bookkeeper, who put the money in “the canine fund.” Id. at 176, 357.

       In March, Sheriff Stoffel became suspicious that McIntyre was removing money

from the pop fund. Sheriff Stoffel contacted the Indiana State Police, and state officers

placed video surveillance equipment into the squad room where the coffee can was

located. State officers further placed investigative funds into the coffee can. On at least

eight separate occasions, state officers recorded McIntyre approaching the coffee can and

removing money, which he followed by also taking a soda, without placing any money of

his own in the coffee can. Id. at 303-11. On three of those occasions, McIntyre “act[ed]

like he [was] throw[ing] change into the container.” Id. at 305. On a fourth occasion,

another department employee walked into the room with McIntyre, and he responded by

trying to hide the money he had removed from the can behind his back.

       On another occasion subsequent to the recorded events, a state investigator

counted thirty-seven dollars in bills in the coffee can before McIntyre entered the room,

observed McIntyre enter the room, and, sometime later, then counted twenty-four dollars

in bills in the coffee can. The next day, that same investigator counted twenty-five

dollars in bills in the can, observed McIntyre enter the room, and, sometime later, then




                                             3
counted eighteen dollars in bills in the can. Thereafter, Sheriff Stoffel arrested McIntyre

and fired him.

       On April 19, the State charged McIntyre with theft, as a Class D felony. At his

ensuing jury trial, Sheriff Stoffel testified as follows:

       THE STATE:            [D]escribe what peaked your interest? What set your
       senses on fire?

                                             ***

       WITNESS: From the beginning . . . there were multiple things that added
       up to where we are at today. I would go in there and I would see . . . that
       there would be a big wad of money, dollar bills . . . in that and then I would
       go back later in a day or in an hour or two later and I would notice that
       dollar bills were missing. It was a lot smaller than it was.

       THE STATE:            Okay.

       WITNESS: And Officer McVoy works at night and I knew he wasn’t
       coming in and taking it so I kind of wondered . . . . what was going on . . . .

                                             ***

       WITNESS: So . . . there was a particular jail officer [who] was making
       frequent trips down the hallway past my office going into that room and
       coming back with pop.

       THE STATE:           Why was that unusual?           I mean, that’s part of the
       entire Sheriff’s Department, right?

       WITNESS: Yes, it is. But I’m talking . . . once every hour and ten (10) or
       fifteen (15) minutes he was coming down that hallway. And I didn’t really
       like that very much so I actually confronted him.

                                             ***

       WITNESS: I actually confronted Steve McIntyre in the hallway that he’s
       got to go by to get to the pop fund and as he stood there and talked to me
       three quarters fell out of his hand.

       THE STATE:            And this was just after he came out . . . .
                                               4
       WITNESS: After he came out of the break room, yea.

       THE STATE:           Okay.

       WITNESS: So that in itself was suspicious to me because pop is fifty
       cents.

       THE STATE:           Okay.

       WITNESS: So I wouldn’t know why he would have three quarters fall on
       the ground. Two would have been fine. I wouldn’t have thought as much
       about that or none but three (3) quarters fell on the floor. And that was
       another indicator that I didn’t like what was going on and with the prior
       history that I had with Mr. McIntyre . . . .

Id. at 358-60 (emphasis added). McIntyre’s counsel promptly objected at this point.

Following a sidebar, the State continued its examination of Sheriff Stoffel:

       THE STATE:           Okay . . . you were telling the jury the things that
       peaked your interest on this matter.

       WITNESS: [W]e had some money that was missing and shrinking. We
       had the quarters falling in the hallway. And then accompanied with what I
       knew, the history that I had had with Steve McIntyre before with his
       deception and lying.

Id. at 361 (emphasis added). McIntyre’s counsel again promptly objected and requested

a mistrial.   Following a discussion outside the presence of the jury, the trial court

sustained the objection but denied the request for a mistrial. The court then admonished

the jury as follows: “The Court is going to admonish you that you are not to consider any

statements made by this witness after he said he had a history with the Defendant. You

may not consider those statements in any way.” Id. at 388.

       The jury found McIntyre guilty as charged, and the court entered its judgment and

sentence accordingly. This appeal ensued.


                                             5
                             DISCUSSION AND DECISION

                                   Issue One: Mistrial

       On appeal, McIntyre first asserts that the trial court abused its discretion when it

denied his motion for a mistrial. To succeed on appeal from the denial of a motion for a

mistrial, a defendant “must demonstrate that the conduct complained of was both error

and had a probable persuasive effect on the jury’s decision.” Booher v. State, 773 N.E.2d

814, 820 (Ind. 2002). The trial court’s decision to grant or deny a mistrial “is reviewed

only for abuse of discretion.” Knapp v. State, 9 N.E.3d 1274, 1283 (Ind. 2014). Mistrial

is “an extreme remedy in a criminal case which should be granted only when nothing else

can rectify a situation.” Id. at 1284 (quotations omitted). Our deferential review of

decisions to grant or deny a mistrial reflects that the trial court is in the best position to

gauge the surrounding circumstances of the event and its impact on the jury.               Id.

(quotation omitted).    “A prompt admonishment advising the jury to disregard the

improper testimony is usually enough to avoid a mistrial.” TRW Vehicle Safety Sys. Inc.

v. Moore, 936 N.E.2d 201, 213 (Ind. 2010).

       The trial court did not abuse its discretion when it denied McIntyre’s motion for a

mistrial. At the time Sheriff Stoffel made his inadmissible statement, the jury had before

it eight video recorded instances of McIntyre approaching the coffee can and removing

money and a soda without placing any money of his own in the coffee can. Tr. at 303-11.

On three of those occasions, McIntyre “act[ed] like he [was] throw[ing] change into the

container.” Id. at 305. On a fourth occasion, another department employee walked into

the room with McIntyre and he responded with furtive gestures. The jury also had before


                                              6
it the testimony of a state investigator who stated that, on two occasions, he counted less

money in the coffee can after McIntyre had passed through the room than was in the can

before McIntyre had entered.

       The trial court was within its discretion to conclude that the probable persuasive

effect of Sheriff Stoffel’s statement was minor. Moreover, the trial court admonished the

jury to disregard Sheriff Stoffel’s inadmissible statement.            The trial court’s

admonishment, on these facts, was enough to cure the error. We affirm the trial court’s

denial of McIntyre’s motion for a mistrial.

                            Issue Two: The State’s Evidence

       McIntyre also asserts that the State failed to present sufficient evidence that he

committed theft, as a Class D felony. When reviewing a claim of sufficiency of the

evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones

v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence

supporting the verdict and the reasonable inferences that may be drawn from that

evidence to determine whether a reasonable trier of fact could conclude the defendant

was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative

value to support the conviction, it will not be set aside. Id.

       McIntyre’s argument on appeal is not that the State’s evidence fails to demonstrate

each element of theft, as a Class D felony. That is, McIntyre concedes that the State

demonstrated that he knowingly or intentionally exerted unauthorized control over the

property of another person, with the intent to deprive the other person of any part of its

value or use. Ind. Code § 35-43-4-2(a). McIntyre’s exclusive argument on appeal is that


                                              7
the charging information alleges he stole the money of Deputy McVoy, whereas the

State’s evidence demonstrates that he stole the money of the Huntington County Sheriff’s

Department.

       While McIntyre styles his argument as challenging the sufficiency of the State’s

evidence, in fact his argument is that the State’s evidence was a fatal variance from the

facts alleged in the charging information. “A variance is an essential difference between

proof and pleading.” Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). Not all variances

are fatal, however:

       The test to determine whether a variance between the proof at trial and a
       charging information or indictment is fatal is as follows:

              (1) was the defendant misled by the variance in the evidence from
              the allegations and specifications in the charge in the preparation and
              maintenance of his defense, and was he harmed or prejudiced
              thereby;

              (2) will the defendant be protected in [a] future criminal proceeding
              covering the same event, facts, and evidence against double
              jeopardy?

Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997). Further, “[t]he State is not required

to include detailed factual allegations in the charging instrument,” and, “[w]hen the

factual allegations in the charge are not necessary to the sufficiency of the charge, a

greater variance between the allegations and the proof is tolerated before finding the

variance material or fatal.” Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001).

       But “[i]n order for this Court to consider this issue on appeal, the defendant must

have properly objected to the jury instruction,” which specified that the State was

required to prove all of the material allegations contained in the charging information,


                                             8
“and have proffered a written jury instruction which would correct the error.” Mitchem,

685 N.E.2d at 674. “If the defendant failed to tender an instruction on the issue, the

defendant cannot now complain of an incomplete or omitted instruction.” Id.

       McIntyre did not object to the trial court’s jury instructions on this issue, and he

did not proffer an instruction that would have corrected this alleged error. Moreover, and

perhaps because he has mistakenly styled his variance argument as a sufficiency

argument, McIntyre does not apply the facts of this case to our case law describing when

a variance might be fatal. As such, McIntyre’s argument on appeal is not supported by

cogent reasoning.     For all of these reasons, McIntyre’s argument is not subject to

appellate review. Ind. Appellate Rule 46(A)(8)(a); Mitchem, 685 N.E.2d at 674-75.

       Waiver notwithstanding, we agree with the State that, to support a charge of theft,

“the well established rule [is] that it is not necessary to prove absolute title or ownership

in the alleged owner, but sufficient if the evidence shows that the alleged owner to be

properly in possession as a bailee, agent, trustee, executor, or administrator.” Raines v.

State, 514 N.E.2d 298, 299 (Ind. 1987).           The evidence at trial unquestionably

demonstrates that Deputy McVoy meets this test on behalf of the Sheriff’s Department,

and we will not consider McIntyre’s argument that Deputy McVoy does not meet this test

because the money McIntyre stole happened to be planted for investigative purposes.

Thus, McIntyre’s argument on appeal is unpersuasive, and we affirm his conviction for

theft, as a Class D felony.

       Affirmed.

BAILEY, J., and PYLE, J., concur.


                                             9
