MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jul 31 2018, 9:40 am

court except for the purpose of establishing                                   CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Rory Gallagher                                            Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shavaun Ingram,                                           July 31, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-217
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Steven J. Rubick,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          49G19-1707-CM-25837



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018                     Page 1 of 11
                                        Statement of the Case
[1]   Shavaun Ingram (“Ingram”) appeals her conviction for Class A misdemeanor

      theft, which was charged based on her failure to pay cab fare. Ingram argues

      that the trial court erred by: (1) denying her Indiana Trial Rule 41(B) motion

      for involuntary dismissal; and (2) ordering her to pay $10.00 in restitution to the

      cab driver. Because Ingram presented evidence after the trial court denied her

      Trial Rule 41(B) motion, we treat her first argument as a challenge to the

      sufficiency of the evidence and affirm her conviction as the evidence is

      sufficient to support her theft conviction. Additionally, because Ingram

      specifically agreed to the State’s request to pay restitution of $10.00 to the cab

      driver, she invited any alleged error with the restitution order and has waived

      her appellate challenge to restitution.


[2]   We affirm.


                                                     Issues
              1. Whether sufficient evidence supports Ingram’s conviction.

              2. Whether Ingram has waived her challenge to the restitution
                 order.

                                                      Facts
[3]   On July 13, 2017, Ingram, who worked at a CVS store in Indianapolis, called

      Gold Cab to get a ride to work. The cab rate was $3.50 for a pick up and $2.00

      per mile. Gold Cab driver, Teklemichael Peklai (“Peklai”), picked up Ingram

      at her home and drove her to the CVS store. Without saying a word and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018   Page 2 of 11
      without paying, Ingram got out of the cab and walked into the CVS. After

      waiting outside for about ten minutes, Peklai went inside the store to find

      Ingram. She came out from the back of the store and stood behind the register.

      Peklai talked to Ingram, and she spoke to him “aggressively” and did not pay

      the cab fare. (Tr. Vol. 2 at 6).


[4]   Thereafter, Indianapolis Metropolitan Police Department Officer Tracy Ryan

      (“Officer Ryan”) was dispatched to the CVS on a report of “a failure to pay.”

      (Tr. Vol. 2 at 10). Officer Ryan spoke to Ingram and told her that Peklai was

      waiting for his payment. Ingram told the officer that she was not going to pay

      Peklai. Ingram also stated that Peklai had “picked her up late[] from her house

      so she didn’t think that she needed to pay him.” (Tr. Vol. 2 at 11). Officer

      Ryan told Ingram that she was committing a crime if she did not pay the cab

      fare. Ingram argued with Officer Ryan about the payment and said that the

      officer was “fucked up” and was “treating her unfairly.” (Tr. Vol. 2 at 12).

      Ingram eventually went outside to find out how much she owed to Peklai, who

      had been waiting in his cab.1 Ingram owed a little more than $10.00 for her cab

      fare, and she told Officer Ryan that she did not have money to pay it. Officer

      Ryan allowed Ingram to make some phone calls in an attempt to get money to

      pay the fare, but her calls were unanswered. Ingram told the officer that she

      was not going to pay the fare and to just take her to jail.




      1
       There was apparently an increase to her original cab fare because of the corresponding fee for the delay in
      paying Peklai.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018                      Page 3 of 11
[5]   The State charged Ingram with Class A misdemeanor theft. Specifically, the

      State alleged that Ingram had “knowingly exert[ed] unauthorized control over

      the property or service of Gold Cab LLC, to-wit: transportation and/or cab fare

      with the intent to deprive Gold Cab LLC of any part of the use or value of the

      property[.]” (App. Vol. 2 at 11).


[6]   The trial court held a bench trial in November 2017. The State called Peklai

      and Officer Ryan as witnesses, and they testified to the facts above. After the

      State rested its case, Ingram moved for an involuntary dismissal pursuant to

      Trial Rule 41. The trial court denied the motion. Ingram then testified on her

      own behalf and stated that she had intended to pay her cab fare but that her

      money had fallen out of her pocket. She also testified that she had told Officer

      Ryan that she had lost her money. The State called Officer Ryan as witness on

      rebuttal, and Officer Ryan testified that Ingram had never informed the officer

      that she had lost her money. The trial court found Ingram guilty as charged.


[7]   During the subsequent sentencing hearing, the State requested that Ingram pay

      restitution of $10.75 “to the cab driver” and that she be required to do eighty

      hours of community service. (Tr. Vol. 2 at 19). Ingram’s counsel stated that

      Ingram “ha[d] no issue paying ten dollars in restitution” and that “[t]he

      restitution alone [wa]s appropriate in this case.” (Tr. Vol. 2 at 19). The trial

      court imposed a 365-day sentence with 357 days suspended. Additionally, the

      trial court ordered her to pay $10.00 in restitution to Peklai and to perform forty

      hours of community service. After receiving permission to file a belated notice

      of appeal, Ingram now appeals.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018   Page 4 of 11
                                                   Decision
      1. Sufficiency of Evidence


[8]   Ingram first argues that the trial court erred by denying her Indiana Trial Rule

      41(B) motion for involuntary dismissal. The State asserts we should treat

      Ingram’s argument as a challenge to the sufficiency of the evidence because she

      presented evidence on her own behalf after the trial court denied her motion.

      We agree with the State.


[9]   Our Court has held that “[a]ny error made in not granting a motion for

      involuntary dismissal . . . is waived by the movant’s subsequent presentation of

      evidence[,]” and we further explained that, rather than completely waiving the

      argument, our Court would view the argument as one challenging the

      sufficiency of the evidence. Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981,

      985 & 985 n.7 (Ind. Ct. App. 1999), reh’g denied, trans. denied. Furthermore, our

      Indiana Supreme Court has explained that a defendant’s challenge to a Trial

      Rule 50(A) motion for judgment on the evidence or motion for directed verdict,

      which is the motion equivalent to a Trial Rule 41(B) motion but is filed during a

      jury trial, should be treated as challenge to the sufficiency of the evidence

      because the defendant had presented evidence after the denial of his motion.

      See Farris v. State, 753 N.E.2d 641, 647 (Ind. 2001) (treating the defendant’s

      challenge to the denial of his Trial Rule 50(A) motion for directed verdict as a

      challenge to the sufficiency of the evidence because the defendant had presented

      evidence after the denial of his motion). See also Gray v. State, 957 N.E.2d 171,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018   Page 5 of 11
       176 (Ind. 2011) (explaining that the “hornbook law of Indiana Trial Rule 50(A).

       . . holds that a party waives any error of the trial court’s in denying a motion for

       judgment on the evidence whenever the party subsequently presents her own

       evidence”). Thus, we will review Ingram’s argument as a challenge to the

       sufficiency of the evidence.2


[10]   Our standard of review for a sufficiency of the evidence claim is well-settled.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless 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 innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.

       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original). “In essence, we assess only




       2
         We acknowledge that our appellate courts have previously addressed a defendant’s Trial Rule 41(B)
       argument even where the defendant had subsequently presented evidence following the denial of the
       argument. See Workman v. State, 716 N.E.2d 445 (Ind. 1999); Todd v. State, 900 N.E.2d 776 (Ind. Ct. App.
       2009). In those cases, however, there was no specific challenge to the effect of the defendant’s act of
       presenting evidence following the denial of his Trial Rule 41(B) motion. Moreover, even if we were to
       review Ingram’s argument under Trial Rule 41(B), we would still affirm the trial court’s decision.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018                   Page 6 of 11
       whether the verdict could be reached based on reasonable inferences that may be

       drawn from the evidence presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind.

       2012) (emphasis in original).


[11]   The theft statute, INDIANA CODE § 35-43-4-2, provides that “[a] person who

       knowingly or intentionally exerts unauthorized control over the property of

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

       or use[.]” I.C. § 35-43-4-2(a). To convict Ingram of Class A misdemeanor theft

       as charged, the State was required to prove beyond a reasonable doubt that

       Ingram knowingly exerted unauthorized control over Gold Cab’s property, i.e.

       transportation and/or cab fare, with intent to deprive Gold Cab of any part of

       the property’s use or value. Intent may be established by circumstantial

       evidence and inferred from a defendant’s conduct and the natural and usual

       sequence to which such conduct logically and reasonably points. Long v. State,

       935 N.E.2d 194, 197 (Ind. Ct. App. 2010), trans. denied.


[12]   Ingram challenges only one element of her theft conviction. She admits that

       she exercised control over Gold Cab’s property, but she asserts that the

       evidence fails to show that her control was unauthorized. She also contends

       that her failure to pay the cab fare was not criminal and that it, instead, merely

       equated to a civil contract dispute in which she admittedly “breached the terms

       of her contract with Gold Cab.” (Ingram’s Br. 11).


[13]   We recognize that “[t]he legislature did not intend to criminalize bona fide

       contract disputes.” Long, 935 N.E.2d at 197. However, where the evidence


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018   Page 7 of 11
       shows that a defendant has exerted unauthorized control over another’s

       property, then “a criminal conviction may stand.” Id. (affirming a defendant’s

       theft conviction and holding that the defendant’s control over property was

       unauthorized under INDIANA CODE § 35-43-4-1(b)(6) where the evidence

       supported a reasonable inference that, at the inception of a contract, the

       defendant had no intention of honoring the contract). In relation to the theft

       statute, a person’s control over property of another person is considered

       “unauthorized” if it is exerted, among other ways, “without the other person’s

       consent;” “by creating or confirming a false impression in the other person;” or

       “by promising performance that the person knows will not be performed[.]”

       I.C. §§ 35-43-4-1(b)(1), (b)(4), & (b)(6).3


[14]   Here, the evidence at the bench trial showed that, even though Ingram did not

       have money to cover a $10.00 cab fare, she called Gold Cab for a ride to work,

       got into Peklai’s cab, and got out without paying him. Thus, the trial court, as

       trier of fact, could have reasonably inferred that Ingram created a present false

       impression that she was a paying customer or had money to pay for the

       transportation4 or, alternatively, that she had made a promise to pay the cab




       3
         The State is required to prove that the defendant exerted “unauthorized” control in only one of the ways set
       forth in this subsection (b) of INDIANA CODE § 35-43-4-1. See Costello, 643 N.E.2d at 423 n.6. “When proof is
       made under one of the subparagraphs of [INDIANA CODE] § 35-43-4-1(b), proof under the others is mere
       surplusage.” Id.
       4
         We recognize that a false impression or “misrepresentation as to future acts or events . . . will not support a
       conviction for theft.” Costello v. State, 643 N.E.2d 421, 423 n.5 (Ind. Ct. App. 1994) (citing Coburn v. State,
       461 N.E.2d 1154, 1156 (Ind. Ct. App. 1984)). Here, however, Ingram created a false impression that she was
       a paying customer when she called the cab company and entered the cab.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018                        Page 8 of 11
       fare and secured the transportation knowing that she would not pay. Her

       suggestion that she had the money for cab fare but lost it is merely a request to

       reweigh the evidence and witness credibility, which we will not do. See Drane,

       867 N.E.2d at 146. Additionally, the evidence showed that Peklai picked up

       Ingram at her house, drove her to CVS, tried unsuccessfully to obtain payment

       from Ingram, and then called the police to report Ingram’s failure to pay the cab

       fare. While Peklai agreed to provide Ingram with a cab ride, he did not agree to

       allow her to withhold the payment or cab fare for that ride. Thus, the trial court

       could have reasonably inferred that Ingram kept the cab fare without his

       consent. Because there is sufficient evidence from which the trial court could

       have determined that Ingram’s exerted unauthorized control over the

       transportation or cab fare, we affirm her theft conviction.


       2. Restitution


[15]   Lastly, Ingram argues that the trial court erred by ordering her to pay $10.00 in

       restitution to the cab driver, Peklai. Specifically, she contends that Peklai was

       not the victim of her crime because his name was not specifically mentioned in

       the charging information and because the cab company should have paid him if

       he were an hourly employee. 5




       5
        Ingram acknowledges that she did not object to restitution during sentencing. Generally, the failure to
       object to an award of restitution will result in waiver of an appellate challenge to the award; however, we
       note that our Court has “emphasized this Court’s preference for reviewing a trial court’s restitution order
       even absent an objection by the defendant.” See C.H. v. State, 15 N.E.3d 1086, 1095-97 (Ind. Ct. App. 2014).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018                     Page 9 of 11
[16]   An order of restitution lies within the trial court’s discretion and will be

       reversed only where there has been an abuse of discretion. Kays v. State, 963

       N.E.2d 507, 509 (Ind. 2012). A trial court abuses its discretion when its

       decision is clearly against the logic and effect of the facts and circumstances or

       when the trial court has misinterpreted the law. Gil v. State, 988 N.E.2d 1231,

       1234 (Ind. Ct. App. 2013). “The principal purpose of restitution is to vindicate

       the rights of society and to impress upon the defendant the magnitude of the

       loss the crime has caused.” Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008),

       reh’g denied. “Restitution also serves to compensate the offender’s victim.” Id.


[17]   Pursuant to the restitution statute, INDIANA CODE § 35-50-5-3, a trial court has

       authority to “order [a defendant] to make restitution to the victim of the crime[.]”

       IND. CODE § 35-50-5-3(a) (emphasis added). The trial court “shall base its

       restitution order upon a consideration of . . . [among other things,] . . . earnings

       lost by the victim (before the date of sentencing) as a result of the crime[.]” I.C.

       § 35-50-5-3(a)(4). “Although the [restitution] statute does not define the term

       ‘victim,’ [the Indiana Supreme] Court has held that restitution is properly

       payable to ‘those shown to have suffered injury, harm or loss as a direct and

       immediate result of the criminal acts of a defendant.’” Sickels v. State, 982

       N.E.2d 1010, 1013 (Ind. 2013) (quoting Reinbold v. State, 555 N.E.2d 463, 470

       (Ind. 1990), overruled in part on other grounds by Wright v. State, 658 N.E.2d 563

       (Ind. 1995)).


[18]   Here, during the sentencing hearing, the State requested that Ingram pay

       restitution of $10.00 “to the cab driver” and that she be required to do eighty

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018   Page 10 of 11
       hours of community service. (Tr. Vol. 2 at 19). Ingram’s counsel stated that

       Ingram “ha[d] no issue paying ten dollars in restitution” and that “[t]he

       restitution alone [wa]s appropriate in this case.” (Tr. Vol. 2 at 19). The trial

       court then ordered Ingram to pay $10.00 in restitution to Peklai.


[19]   Despite her agreement regarding restitution to Peklai, Ingram now attempts to

       argue on appeal that the trial court’s restitution order was erroneous. We reject

       her argument because of invited error. A defendant “cannot invite error and

       then request relief on appeal based upon that ground[.]” Mitchell v. State, 730

       N.E.2d 197, 201 (Ind. Ct. App. 2000), trans. denied. Invited error is not

       reversible error. C.H. v. State, 15 N.E.3d 1086, 1097 (Ind. Ct. App. 2014), trans.

       denied. Because Ingram agreed to the amount of restitution, she invited any

       alleged error and waived her challenge to the trial court’s $10.00 restitution

       order. See, e.g., id. (holding that the appellant’s restitution argument was

       waived where he had invited any error regarding restitution); Mitchell, 730

       N.E.2d at 201 (providing that the defendant had waived his appellate challenge

       to the trial court’s restitution order because he had invited the error

       alleged). Accordingly, we affirm the trial court’s restitution order requiring

       Ingram to pay $10.00 in restitution to Peklai.


[20]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-217 | July 31, 2018   Page 11 of 11
