Opinion
23A-CR-2826
06-26-2024
Heather L. Erwin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Timothy J. Burns Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Marc T. Rothenberg, Judge The Honorable Travis E. Shields, Magistrate Trial Court Cause No. 49D19-2212-CM-32810
ATTORNEY FOR APPELLANT Timothy J. Burns Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
Judges Vaidik and Kenworthy concur.
MEMORANDUM DECISION
May, Judge.
[¶1] Heather L. Erwin appeals her conviction of Class A misdemeanor theft. Erwin argues the State failed to present sufficient evidence to support her conviction. We affirm.
Facts and Procedural History
[¶2] On November 20, 2022, Erwin was at Walmart on West 86th Street in Marion County, ringing up her items at self-checkout. Asset Protection Investigator Laura Hiatt was working and observed Erwin through the store's surveillance cameras. Erwin scanned a 50-inch television, but it rang up as a 24-inch television because the box had improper price tags on it. Investigator Hiatt paused Erwin's transaction for further inspection, which turned the light on the self-checkout kiosk red and caused a message to appear on the screen. Another employee cleared the error message remotely without going to Erwin's kiosk, which allowed Erwin to resume the transaction. Erwin paid for her items, which included paying $98.00 for the 50-inch television that had an actual value of $238.00 and walked toward the exit of the store. Investigator Hiatt and Officer Anthony Neumeister, an off-duty detective working security, pursued Erwin. Investigator Hiatt identified herself as police when she was about ten to fifteen feet away from Erwin and asked Erwin to stop. Erwin turned around, looked at Investigator Hiatt and Officer Neumeister, and ran out of the store. Officer Neumeister ran after Erwin and yelled at her to stop, but Erwin did not stop until Officer Neumeister grabbed her shopping cart. Officer Neumeister told Erwin that she was being detained and needed to come back inside WalMart. Erwin initially refused because she had urinated on herself, but Officer Neumeister insisted and escorted Erwin to the asset protection office. Officer Neumeister Mirandized Erwin while walking back to the office.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966) (when taking citizens into custody, officers must advise them of their right to remain silent, their right to counsel during questioning, their right to appointment of counsel if one cannot be afforded, and their right to assert those rights at any time), reh'g denied.
[¶3] Investigator Hiatt took possession of Erwin's shopping cart and the items within. The 50-inch television in Erwin's shopping cart had the regular large UPC barcode laser printed on the bottom of the box, along with skinny, white stickers with barcodes on the bottom of the box next to the UPC code and on the top of the box. Once in the asset protection office, Erwin admitted knowing why she was stopped, admitted the theft, apologized, and said "it was stupid." (Tr. Vol. 2 at 40.)
[¶4] The State charged Erwin with Class A misdemeanor theft on December 7, 2022. Erwin failed to appear in court on both January 18, 2023, and February 8, 2023, so the court issued a warrant for her arrest. The court held a bench trial on November 6, 2023. After Investigator Hiatt and Officer Neumeister testified, Erwin's counsel moved for involuntary dismissal under Trial Rule 41(b) based on "the State's inadequate showing" that a theft occurred. (Id. at 63.) The trial court denied the motion for involuntary dismissal. After further testimony, including from Erwin, the trial court found Erwin guilty. The court sentenced Erwin to 180 days on probation, which were suspended and would terminate after successful completion of an anti-theft class.
Discussion and Decision
[¶5] Erwin argues the State presented insufficient evidence to sustain her conviction of Class A misdemeanor theft. Our standard of review regarding such claims is well-settled:
Sufficiency-of-the-evidence claims . . . warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. Rather, we consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020).
[¶6] Theft is committed when a 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." Ind. Code § 35-43-4-2. Intent is a mental function, so "[c]ircumstantial evidence alone may support a theft conviction." Rogers v. State, 902 N.E.2d 871, 875 (Ind.Ct.App. 2009). As we stated in Cobb v. State:
Circumstantial evidence is evidence based on inference and not on personal knowledge or observation.... Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn. For example, footprints or fingerprints that place an accused at the scene of a crime may be direct evidence of the accused's presence at some point in time but only circumstantial proof that the accused committed the charged offense.222 N.E.3d 373, 389 (Ind.Ct.App. 2023) (internal citations omitted), reh'g denied, trans. denied.
[¶7] Erwin contends the State failed to establish she had criminal intent to deprive Walmart of the value of the television set. The trial court acknowledged the State did not present direct evidence proving Erwin was the person who switched the tags on the box, but also determined "there's no question that, in fact, this was not the valid price that was supposed to be on the product. So what we do is look towards the actions of the defendant from that point forward." (Tr. Vol. 2 at 82.) The trial court determined the State met its burden because: (1) Erwin fled from security, "which is indicative of a guilty conscience," (id. at 83); and (2) Erwin made admissions to Investigator Hiatt and Officer Neumeister.
Pursuant to Indiana Code section 35-43-4-4(b)(1), evidence of altering, substituting, or transferring a UPC onto a product for sale "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."
[¶8] Erwin denies fleeing from the scene. Erwin claims she exited quickly because she heard someone yell "stop" and she believed "there might be a fight and wanted to get out of there." (Tr. Vol. 2 at 67-68; Appellant's Br. at 7.) She also denies hearing Investigator Hiatt yell "Police" and denies running, claiming instead that she "was only walking fast." (Tr. Vol. 2 at 70; Appellant's Br. at 7.) Erwin asks us to look at the video of her at the self-checkout and determine that she made an honest mistake by scanning the wrong barcode:
When she tried to scan the television box, it appears that she actually had trouble finding the bar code that would read on the scanner screen .... She did not try to avoid the scanner. She had to look at various markings on the box in an attempt to find a bar code that would register.(Appellant's Br. at 9.) Erwin is asking us to reassess the credibility of the witnesses and reweigh the evidence, which we cannot do. See Powell, 151 N.E.3d at 262 (appellate court cannot reweigh evidence or judge the credibility of witnesses). The trial court had the opportunity to view the video evidence, observe testimony from Investigator Hiatt and Officer Neumeister, and observe Erwin's testimony in her own defense, and the trial court found she fled.
Accordingly, we decline Erwin's invitation to substitute our judgment for the trier of fact and affirm its finding of flight. See Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015) ("evidence of flight may be considered as circumstantial evidence of consciousness of guilt").
[¶9] Erwin also denies that she admitted stealing the television. Erwin testified that she was threatened by Officer Neumeister into confessing and that he said that "if I didn't admit to it, I was going to jail." (Tr. Vol. 2 at 68.) Later in her testimony, she stated that "I never said I switched the tags" and said "I'm sorry. I didn't do it." (Id. at 70.) Both Investigator Hiatt and Officer Neumeister testified that Erwin apologized and confessed to stealing the television. As a rebuttal witness, Officer Neumeister denied threatening Erwin as an attempt to secure a confession. It is the role of the trier of fact to resolve any conflicts in testimony and determine the weight of evidence and credibility of witnesses. See Klaff v. State, 884 N.E.2d 272, 274 (Ind.Ct.App. 2008) (the trier-of-fact is free to believe or disbelieve whomever as it sees fit).
[¶10] In light of the evidence most favorable to the judgment supporting the trial court's findings that Erwin attempted to flee the scene and admitted taking the television without paying the full price, we hold the State presented sufficient evidence for the trier of fact to find Erwin intended to deprive Walmart of the value of the television set. See, e.g., Moncrief v. State, N.E.2s 1286, 1288-89 (Ind.Ct.App. 1988) (walking past the register without paying demonstrates "intent to deprive" even if the defendant gave an alternate explanation).
Conclusion
[¶11] There was sufficient evidence to support Erwin's conviction of Class A misdemeanor theft. Accordingly, we affirm.
[¶12] Affirmed.
Vaidik, J., and Kenworthy, J., concur.