Jamar Sheets v. State of Indiana (mem. dec.) ( 2016 )

FILED
MEMORANDUM DECISION Jul 06 2016, 5:54 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
regarded as precedent or cited before 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
Paula M. Sauer Gregory F. Zoeller
Danville, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jamar Sheets, July 6, 2016
Appellant-Defendant, Court of Appeals Case No.
32A04-1512-CR-2190
v. Appeal from the
Hendricks Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Mark A. Smith, Judge
Trial Court Cause No.
32D04-1409-F6-200
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 1 of 10
[1] Jamar Sheets (“Sheets”) was convicted after a jury trial of theft1 as a Level 6
felony. He appeals, raising the following restated issue for our review: whether
the State presented sufficient evidence to support his conviction for theft,
specifically (1) whether he intended to deprive the victim of the value or use of a
wallet and cell phone, and (2) whether he exerted unauthorized control over the
property.
[2] We affirm.
Facts and Procedural History
[3] Around 6:15 a.m. on September 13, 2014, Steve Krause (“Krause”), his
daughter, and some of his co-workers from the Indiana Department of
Correction were on their way to a softball tournament at Hummel Park in
Plainfield, Indiana. They stopped at a nearby McDonald’s restaurant to eat
breakfast. Krause approached the counter to order, and because he was
wearing sweatpants with no pockets, he placed his wallet and cell phone on the
counter. When his food was ready, Krause sat down at one of the tables and
began eating his breakfast; however, he had accidentally left his wallet and cell
phone on the counter.
[4] A short time later, Sheets and his co-worker approached the counter to order
and noticed the wallet and cell phone lying there. Sheets put both items in his
1
See Ind. Code § 35-43-4-2.
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 2 of 10
jacket pocket, and, after receiving the food his co-worker ordered, he and his
co-worker returned to work. Sheets left the wallet and cell phone in his truck.
[5] After only taking a few bites of his breakfast, Krause realized that he had
accidentally left his wallet and cell phone at the counter. He went to the
counter, noticed his belongings were not there, and asked an employee if they
had been turned in. Krause and his co-workers then searched the restaurant,
but they were unable to locate the items. Krause called the police, who came to
the restaurant and took a report. After speaking with the police, Krause went to
the softball tournament. About thirty minutes after his belongings were taken,
Krause’s girlfriend notified him that someone had posted a message to Krause
on his Facebook account, which stated, “your phone is [sic] good hands now
and oh by the way he is a donor.” Tr. at 160, 170. A second post was also
made, but Krause could not remember what it said. Neither of the posts
contained any identifying information as to how and where Krause could
retrieve his belongings. After seeing the Facebook post, Krause immediately
cancelled his credit cards and deactivated his cell phone.
[6] Later that day, Plainfield Police Department Sergeant Chad Parks (“Sergeant
Parks”) went back to the McDonald’s to retrieve surveillance video of the
restaurant from that morning. Sergeant Parks viewed the video and observed
Sheets pick up Krause’s wallet and cell phone and put them into his jacket
pocket. The manager of the restaurant, Angela Pruitt (“Pruitt”), recognized
Sheets as a regular customer and agreed to call the police if she saw him again.
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 3 of 10
[7] After work that day, Sheets went to his mother’s house to pick up his children
and told his mother about finding the wallet and cell phone. Sheets removed all
of the contents, but the cash from the wallet, including Krause’s debit cards,
and put the items in two separate envelopes addressed to Krause’s home
address. Several days later, Krause received the envelopes from Sheets. The
envelopes had no identifying information and did not contain Krause’s wallet
or cell phone. Krause called Sergeant Parks to update him regarding this.
[8] Approximately ten days after Sheets took Krause’s belongings, Sergeant Parks
received a call from Pruitt. She told Sergeant Parks that Sheets had come back
into the McDonald’s, and she gave Sergeant Parks a description of Sheets’s
vehicle and his license plate number. A few days later, while out patrolling,
Sergeant Parks saw Sheets’s vehicle pull into a gas station. Sergeant Parks
arrested Sheets at that time. Krause’s cell phone was recovered, but his wallet
and the cash from inside the wallet were never recovered.
[9] On September 24, 2014, the State charged Sheets with theft as a Class A
misdemeanor and theft as a Level 6 felony. On August 24, 2015, a jury trial
occurred, at the conclusion of which, Sheets was found guilty as charged. The
trial court entered judgment on one count of theft as a Level 6 felony and
sentenced Sheets to 730 days with 728 days suspended and credit for time
served. Sheets now appeals.
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 4 of 10
Discussion and Decision
[10] The deferential standard of review for sufficiency claims is well settled. When
we review the sufficiency of evidence to support a conviction, we do not
reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,
928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the
evidence most favorable to the verdict and the reasonable inferences that can be
drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.
2014), trans. denied. We also consider conflicting evidence in the light most
favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.
App. 2013), trans. denied. We will not disturb the jury’s verdict if there is
substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.
We will affirm unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.
2012). As the reviewing court, we respect “the jury’s exclusive province to
weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
[11] Sheets argues that insufficient evidence was presented to support his conviction
for theft. In order to convict him of theft as a Level 6 felony, the State was
required to prove beyond a reasonable doubt that Sheets knowingly or
intentionally exerted unauthorized control over Krause’s property, with intent
to deprive Krause of any part of its value or use and that Sheets had a prior
unrelated conviction for either theft or conversion. Ind. Code § 35-43-4-
2(a)(1)(C).
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 5 of 10
[12] Sheets first contends that the State failed to present sufficient evidence to
support his conviction for theft because there was insufficient evidence that he
intended to deprive Krause of the use or value of his wallet and cell phone,
arguing that his behavior did not support such a conclusion. He maintains that
the evidence showed that he did not use or attempt to use Krause’s debit cards
and that he did not use, sell, or dispose of Krause’s cell phone. Sheets also
alleges that the evidence established that he mailed the contents of Krause’s
wallet to him, and Sheets claims that he told his mother to include a note with
Sheets’s name and number in the envelopes. Sheets further asserts that the
evidence showed that he made no effort to dispose of Krause’s property or
comingle it with his own property. Sheets argues that this evidence
demonstrated that he did not intend to deprive Krause of his property.
[13] “A person engages in conduct ‘intentionally’ if, when he engages in the
conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a).
Intent can be inferred from a defendant’s conduct and the natural and usual
sequence to which such conduct logically and reasonably points. Lee v. State,
973 N.E.2d 1207, 1210 (Ind. Ct. App. 2012), trans. denied. The fact finder is
entitled to infer intent from the surrounding circumstances. Id. Intent may be
proved by circumstantial evidence. Id.
[14] In the present case, the evidence most favorable to the verdict shows that, a
short time after Krause accidentally left his wallet and cell phone on the counter
at McDonald’s, Sheets picked up the items and placed them into the pocket of
his jacket. Sheets did not alert the McDonald’s staff to the items he had found,
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 6 of 10
hand the items over to the staff to hold them for the owner, or leave his name
and contact information in case the owner came back looking for his
belongings. Further, even though Sheets had access to Krause’s cell phone and
the contact information contained on the phone, he did not attempt to notify
either Krause or any of his friends that he had found Krause’s belongings.
Additionally, although Sheets mailed items from Krause’s wallet back to
Krause, he never returned Krause’s wallet and cell phone nor did he include
any identifying information on the outside of the envelope or inside the
envelope that would have enabled Krause to contact him. The evidence
presented showed that Sheets never contacted the police regarding finding
Krause’s property, and despite having Krause’s address, Sheets never attempted
to go to the residence to return the items. Krause’s cell phone was not
recovered until after Sheets’s arrest, which was over ten days after Sheets took
the items. Krause’s wallet and the cash inside were never recovered.
[15] Sheets claims that he asked his mother to include a sticky note with his number
on it so Krause could contact him. Tr. at 229, 243, 254; Appellant’s Br. at 10.
However, the envelope and its contents was admitted into evidence at trial, and
no note was contained in the envelope. Tr. at 165-66; State’s Exs. 1-4. Under
our standard of review, we are constrained to only look to the evidence most
favorable to the verdict and to consider conflicting evidence in the light most
favorable to the trial court’s ruling. Fuentes, 10 N.E.3d at 75; Oster, 992 N.E.2d
at 875. Therefore, viewing the evidence presented at trial under this standard,
we conclude that the State presented sufficient evidence that Sheets intended to
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 7 of 10
deprive Krause of the use or value of his property. Sheets’s arguments to the
contrary are requests for this court to reweigh the evidence and judge the
credibility of the witnesses, which we cannot do. Boggs, 928 N.E.2d at 864.
[16] Sheets next argues that the State presented insufficient evidence to support his
conviction because the evidence showed that he had a reasonable belief that his
control over Krause’s property was authorized. In order to convict him, the
State had to prove that he knowingly or intentionally exerted unauthorized
control over Krause’s property. Ind. Code § 35-43-4-2(a). Sheets contends that,
because when he took Krause’s property he was picking up lost property and
attempting to return it, he had Krause’s implied consent to control Krause’s
belongings until the items could be returned to Krause. Therefore, Sheets
asserts that he did not exert unauthorized control over Krause’s property.
[17] The term “unauthorized” is defined in Indiana Code section 35-43-4-1.
Pertinent to the present case, “a person’s control over property of another
person is ‘unauthorized’ if it is exerted: (1) without the other person’s consent.”
Ind. Code § 35-43-4-1(b)(1).
[18] Here, the evidence most favorable to the verdict showed that when Sheets
picked up Krause’s wallet and cell phone from the counter at McDonald’s, he
concealed the items in the pocket of his jacket. Krause testified at trial that he
did not give anyone authorization to have his wallet or cell phone. Tr. at 167.
Further, when Krause determined that his belongings had been stolen and not
lost, he immediately cancelled his credit and debit cards and his cell phone
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 8 of 10
service so no one could use them. Sheets claims that he had implied consent to
keep Krause’s belongings because he was attempting to return them to Krause.
However, as Sheets concedes, implied consent is not a recognized defense to
theft in Indiana. Appellant’s Br. at 12-13. Additionally, the evidence presented
did not support the conclusion that Sheets was trying to return the items to
Krause. At no time after he took the wallet and cell phone, did Sheets contact
Krause with information as to how to get in touch with Sheets to get his
belongings back. Sheets did not ever contact any of the contact numbers in
Krause’s phone to alert them that he found Krause’s things nor did he post any
identifying information on Krause’s Facebook account despite having access to
it through the cell phone. Although Sheets contends that he intended to
provide his name and number in the envelopes sent to Krause, the evidence
presented was that no contact information was included. Furthermore,
although Krause’s cell phone was eventually recovered after Sheets was
arrested, Krause’s wallet and the cash inside were never recovered. Based on
the evidence presented at trial, we conclude that sufficient evidence was
presented to prove that Sheets exerted unauthorized control over Krause’s
property. Sheets’s challenges to the contrary are requests for us to reweigh the
evidence, which cannot do on appeal. Boggs, 928 N.E.2d at 864. We,
therefore, conclude that the State presented sufficient evidence to support
Sheets’s conviction for theft.
[19] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 9 of 10
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2190 | July 6, 2016 Page 10 of 10