Tony Edelen v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
May 24 2016, 9:21 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tony Edelen, May 24, 2016
Appellant-Defendant, Court of Appeals Cause No.
49A02-1510-CR-1722
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clayton Graham,
Appellee-Plaintiff. Judge
The Honorable Duane Merchant,
Judge Pro-Tempore
Trial Court Cause No.
49G07-1503-CM-8223
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 1 of 5
Case Summary
[1] Tony Edelen appeals his conviction for Class A misdemeanor theft. We affirm.
Issue
[2] The sole issue is whether there is sufficient evidence to sustain Edelen’s
conviction.
Facts
[3] On January 20, 2015, Matthew Cavendish was working as a loss prevention
officer for a Kroger grocery store in Indianapolis. On that date, he noticed
Edelen come into the store. Cavendish recognized Edelen from several
previous encounters with him. Cavendish watched Edelen from a distance and
saw him take four bottles of whiskey from the shelf and remove security caps
from the top of the bottles. Edelen then concealed the bottles on his person and
walked out of the store without paying for them. Cavendish lost sight of Edelen
after he left the store and before police arrived on the scene. When police
arrived and found and detained Edelen, he had no stolen merchandise on him.
However, Cavendish went behind the store, where he had seen Edelen walking
towards before police arrived, and found four bottles of whiskey with the
security caps removed.
[4] The State charged Edelen with Class A misdemeanor theft. After a bench trial,
Edelen was convicted as charged. Edelen now appeals.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 2 of 5
Analysis
[5] Edelen contends there was insufficient evidence to convict him of theft. When
reviewing a claim of insufficient evidence, we must consider only the probative
evidence and reasonable inferences supporting a conviction without reweighing
evidence or assessing witness credibility. Lewis v. State, 34 N.E.3d 240, 245
(Ind. 2015). The evidence is sufficient if a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt. Id.
[6] “A person who knowingly or intentionally exerts unauthorized control over
property of another person, with intent to deprive the other person of any part
of its value or use, commits theft, a Class A misdemeanor.” Ind. Code § 35-43-
4-2(a). Additionally:
Evidence that a person:
(1) concealed property displayed or offered for sale or hire; and
(2) removed the property from any place within the business
premises at which it was displayed or offered to a point beyond
that at which payment should be made;
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.
I.C. § 35-43-4-4(c).
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 3 of 5
[7] Edelen complains that he was not actually in possession of the four bottles of
whiskey when he was apprehended by police outside the Kroger. However, the
theft statute does not require that a defendant be found in possession of the
stolen property. K.F. v. State, 961 N.E.2d 501, 508 (Ind. Ct. App. 2012), trans.
denied. He also faults the lack of certain evidence, such as proof that the
whiskey bottles came from the Kroger, surveillance video, and fingerprint or
DNA evidence. Police and prosecutors are entitled to allocate investigative
resources, depending on the severity of the offense, and are not required to
collect every piece of evidence possible in every single case that comes before
them. Rather, we note the well-settled rule that a single eyewitness’s testimony
is sufficient to sustain a conviction. Rutherford v. State, 866 N.E.2d 867, 871
(Ind. Ct. App. 2007). Here, Cavendish presented unequivocal eyewitness
testimony that he observed Edelen remove four bottles of whiskey from a shelf,
pull the security caps off of them, conceal them, and then walk out of the store
without paying for them. Although the bottles were not on Edelen’s person
when police apprehended him, they were located in an area behind the store
where Cavendish had seen Edelen walking after he left the store. This is
sufficient evidence that Edelen stole the bottles of whiskey, particularly in light
of Indiana Code Section 35-43-4-4(c). Edelen’s claims that Cavendish’s
testimony by itself was insufficient is clearly an invitation to reweigh the
evidence, which we must refuse.
Conclusion
[8] There is sufficient evidence to sustain Edelen’s conviction for theft. We affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 4 of 5
[9] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1722 | May 24, 2016 Page 5 of 5