LaShawn A. Tanks v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 30 2019, 10:32 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
Rodney T. Sarkovics Curtis T. Hill, Jr.
Sarkovics Law Attorney General of Indiana
Carmel, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LaShawn A. Tanks, December 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-910
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable David K. Najjar,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D05-1704-F6-2417
Pyle, Judge.
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Statement of the Case
[1] LaShawn Tanks (“Tanks”) appeals his convictions, following a jury trial, of
Level 6 felony theft1 and Level 6 felony fraud.2 He argues that the evidence is
insufficient to support his convictions because the State failed to: (1) establish
venue in Hamilton County; and (2) prove his identity beyond a reasonable
doubt. Concluding that the evidence is sufficient, we affirm his convictions.
[2] We affirm.
Issues
1. Whether there is sufficient evidence to establish venue in
Hamilton County.
2. Whether there is sufficient evidence to prove Tanks’
identity beyond a reasonable doubt.
Facts
[3] The facts most favorable to the verdict reveal that the State charged Tanks with
Level 6 felony theft and Level 6 felony fraud in March 2017. Testimony at trial
revealed that Kayla Stauffer (“Stauffer”) had lunch at a Carmel restaurant on
March 1, 2017 at approximately 2:00 p.m. Stauffer ordered her meal at the
counter and used a Chase credit card to pay for it. Tanks, who is 6’5” tall and
1
IND. CODE § 35-43-4-2.
2
I.C. § 35-43-5-4.
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weighs nearly 300 pounds, brought her food to her table. There were only two
employees in the restaurant at the time of Stauffer’s purchase, the man who had
taken her payment at the cash register and Tanks.
[4] That same evening, Stauffer received an alert from Chase about recent use on
her credit card. Stauffer noticed that she did not have the credit card in her
possession and contacted Chase regarding the alert. Stauffer learned that
several purchases had been made with her card that evening at Meijer and Hat
World, both located on the west side of Indianapolis within a mile from Tanks’
home. She told the Chase representative that she had not authorized any
purchases that day other than her lunch and that she had not seen her credit
card since she had made that purchase.
[5] The following day, Stauffer contacted the Carmel Police Department and
reported the unauthorized purchases. Carmel Police Department Officer
Michael Pitman (“Officer Pitman”) was dispatched to the restaurant where
Stauffer had purchased lunch. Officer Pitman testified that he had talked to the
manager and had obtained a list of employees who had worked the previous
day, which included Tanks. Timecards showed that Tanks had left the
restaurant at approximately 5:20 p.m. the previous day. While speaking with
the manager, Officer Pitman noticed Tanks, who was wearing a bright red cap,
walk into the parking lot and move his light blue Ford SUV to an underground
parking garage. When he returned to the restaurant, Tanks was no longer
wearing the red cap.
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[6] Officer Pitman further testified that he had gone to the westside Indianapolis
Meijer and obtained surveillance photographs of the parking lot and store that
had been taken at approximately 6:30 p.m. the evening of the unauthorized
purchases. In the photographs, the officer noticed a man, whom he identified
as Tanks, park the blue Ford SUV that he had seen Tanks move at the Carmel
restaurant. The photographs also showed Tanks entering the store, walking
throughout it, and purchasing almost $400 worth of items. Tanks was wearing
a bright red cap. The Meijer surveillance photos were admitted into evidence at
trial without objection.
[7] Also at trial, Carmel Police Department Detective Mark Paris (“Detective
Paris”) testified that he had gone to the westside Hat World to obtain
surveillance video of the purchases made with Stauffer’s credit card. Detective
Paris identified the man making the purchases as Tanks after comparing Tanks’
BMV photograph to the man in the video. The surveillance video was also
admitted into evidence at trial without objection.
[8] At the close of the presentation of evidence, Tanks orally moved for a directed
verdict on the theft charge based on the State’s alleged failure to establish venue
in Hamilton County. Tanks specifically argued as follows:
They have not presented any evidence that my client committed
an official, or excuse me, an essential element of the offense
within the confines of Hamilton County. The only testimony
that was given within, that occurred within Hamilton County
does not have my client in possession of the card, touching the
card, taking the card, only that she, Ms. Kayla Stauffer - I think
I'm pronouncing that right - gave it to somebody else. She
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doesn't know what happened to the card after that point. Even if,
assuming is a big assumption, that the person in the security
video for both Meijer and Hat World is my client, both of those
things happened in Marion County, not Hamilton County. And
I do not believe they have proven anything in Hamilton County.
(Tr. 114).
[9] The State responded that there was no dispute that Tanks had been present in
the Hamilton County restaurant when Stauffer had purchased lunch with her
credit card. He had clocked out of the Carmel restaurant at 5:20 p.m., and the
unauthorized transactions had occurred an hour later in Indianapolis.
According to the State, “there [was] no inference or determination from the
evidence that [could] be made other than that in that short period of time
[Tanks] removed that card from Carmel to Marion County and consummated
those purchases.” (Tr. 115). The State concluded that because “they are so
closely woven in time and place . . . there [was] ample evidence in the record
for the jury to find venue appropriate in Hamilton County.” (Tr. 115). The
trial court denied ‘ motion, and the jury convicted him of theft and fraud.
Tanks now appeals.
Decision
[10] Tanks argues that there is insufficient evidence to support his theft and fraud
convictions because the State failed to: (1) establish venue in Hamilton County;
and (2) prove his identity as the perpetrator of the offenses beyond a reasonable
doubt. We address each of his arguments in turn.
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1. Venue
[11] Tanks first argues that there is insufficient evidence to establish venue in
Hamilton County. Specifically, Tanks contends that there is “no evidence that
Tanks touched or possessed the credit card, or took any act in furtherance of
either charge, in Hamilton County.” (Tanks’ Br. at 8).
[12] Tanks is correct that he has a constitutional and statutory right to be tried in the
county where the offenses were committed. See Ind. Const. Art. I, § 13 and
Ind. code § 35-32-2-1(a). If the commission of an offense begins in one county
and continues into another county, the State may file charges in any of the
involved counties. Davis v. State, 520 N.E.2d 1271, 1274 (Ind. 1988). The State
is required to prove venue, although it is not an element of the offense. Peacock
v. State, 126 N.E.2d 892, 897 (Ind. Ct. App. 2019). As a result, the State may
prove venue by a preponderance of the evidence rather than by proof beyond a
reasonable doubt. Id. Circumstantial evidence may be sufficient to establish
proper venue. Id. We neither weigh the evidence nor resolve questions of
credibility but look to the evidence and reasonable inferences drawn therefrom
that support the conclusion of requisite venue. Id.[13] Here, we find ample circumstantial evidence to establish venue in Hamilton
County. Specifically, our review of the evidence reveals that Stauffer used her
credit card to purchase lunch at a Carmel restaurant at approximately 2:00 p.m.
and had last seen her card at that time. Tanks, who was only one of two
employees in the restaurant, clocked out at 5:20 p.m. and the unauthorized
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purchases began approximately an hour later in Indianapolis. Contrary to
Tanks’ argument, this evidence and the reasonable inferences to be drawn
therefrom supports the conclusion that Tanks touched or possessed the card in
Hamilton County. The evidence is therefore sufficient to establish venue in
Hamilton County.
2. Identity
[14] Tanks also argues that there is insufficient evidence to support his theft and
fraud convictions because the State failed to prove his identity as the perpetrator
of the offenses beyond a reasonable doubt. Our standard of review for
sufficiency of the evidence claims is well settled. We consider only the
probative evidence and reasonable inferences supporting the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or
judge witness credibility. Id. We will affirm the conviction unless no
reasonable fact finder could find the elements of the crime proven beyond a
reasonable doubt. Id. The evidence is sufficient if an inference may be
reasonably drawn from it to support the verdict. Id. at 147. “Identity may be
established entirely by circumstantial evidence and the logical inferences drawn
therefrom.” Cherry v. State, 57 N.E.3d 867, 877 (Ind. Ct. App. 2016) (citing
Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind. 1990)), trans. denied.
[15] Tanks specifically argues that “[n]one of the State’s evidence reflected that the
individual who possessed and/or used [Stauffer’s] credit card was Tanks.”
(Tanks’ Br. at 12). However, our review of the evidence reveals sufficient
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evidence to support the jury’s conclusion that Tanks was the individual who
committed the offenses.
[16] Specifically, the evidence reveals that surveillance photographs from Meijer
showed a man that Officer Pitman identified as 6’5” Tanks arriving in the
parking lot. Tanks was driving the blue Ford SUV that Officer Pitman had seen
him move from the Carmel restaurant parking lot to a nearby underground
garage. The photographs also showed a man that Officer Pitman identified as
Tanks making the unauthorized purchases with Stauffer’s credit card. These
photographs were admitted into evidence at trial without objection, and the jury
had the opportunity to compare the man in the photographs to Tanks.
[17] In addition, the surveillance video from Hat World showed a man that
Detective Paris identified as Tanks making the unauthorized purchases with
Stauffer’s credit card. The video was also admitted into evidence at trial
without objection, and the jury had the opportunity to compare the man in the
video to Tanks. This evidence is sufficient to prove Tanks’ identity beyond a
reasonable doubt and support his convictions. Tanks’ argument that the images
are not clear enough to identify him is an invitation for us to reweigh the
evidence, which we cannot do. See Drane, 867 N.E.2d at 146.
[18] Affirmed.
May, J., and Crone, J., concur.
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