Jimmy Wallen, Jr. v. State of Indiana ( 2015 )

Mar 27 2015, 9:42 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Timothy P. Broden Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jimmy Wallen, Jr., March 27, 2015
Appellant-Defendant, Court of Appeals Case No.
79A02-1407-CR-469
v. Appeal from the Tippecanoe Superior
Court.
State of Indiana, The Honorable Les A. Meade, Judge.
Cause No. 79D05-1309-FD-424
Appellee-Plaintiff
Riley, Judge.
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Defendant, Jimmy Wallen, Jr. (Wallen), appeals his conviction of
theft, a Class D felony, Ind. Code § 35-43-4-2 (2013).
[2] We affirm.
ISSUE
[3] Wallen raises one issue on appeal, which we restate as follows: Whether the
trial court abused its discretion by giving an improper jury instruction.
FACTS AND PROCEDURAL HISTORY
[4] On the afternoon of July 17, 2013, Robert Loop (Loop) was working as an asset
protection associate at Walmart in Lafayette, Indiana, when he observed a man
and woman—later identified as Wallen and his girlfriend, Athena Dulin
(Dulin)—enter the store and proceed directly to the electronics department.
Noticing Dulin’s “large seemingly empty purse[,]” Loop began monitoring their
activity. (Tr. p. 90). From a nearby aisle, Loop watched as Wallen “quickly
select[ed] a [PlayStation] starter kit and then handed it to [Dulin].” (Tr. p. 47).
Wallen also selected a pair of wireless headphones and passed them to Dulin.
[5] Wallen and Dulin exited the electronics department, and Loop maintained a
close vantage point as they found an empty aisle in the baby department.
There, Dulin removed the PlayStation starter kit and headphones from their
packages and placed the items in her purse. Dulin then concealed the empty
packaging “on the bottom shelf behind other merchandise.” (Tr. p. 51).
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 2 of 10
Wallen and Dulin subsequently separated. Because the store’s merchandise
was in Dulin’s purse, Loop focused his surveillance on her as she walked over
to the racks of girls’ clothes. After removing numerous articles of clothing from
their hangers and stowing everything in her purse, Dulin rejoined Wallen in the
boys’ apparel section. Both Wallen and Dulin selected several more pieces of
clothing, removed the hangers, and discarded the tags on the floor, and then
Dulin stuffed all of the items into her purse.
[6] Without stopping to look at any more merchandise, Wallen and Dulin headed
toward the front of the store, bypassing the cash registers. When they exited
through the first set of doors and were in the atrium, Loop approached Wallen
and Dulin, introduced himself, and requested that they “return to the store to
discuss the merchandise.” (Tr. p. 58). Wallen complied, but Dulin—with her
purse in tow—fled to the parking lot and drove off. At that point, Loop
contacted the Lafayette Police Department, and Officer Khoury Elias arrived to
investigate. Upon questioning, Wallen denied any involvement in or
knowledge of the shoplifting. No merchandise was found in his possession.
[7] On September 6, 2013, the State filed an Information, charging Wallen with
Count I, theft, a Class D felony, I.C. § 35-43-4-2 (2013); and Count II,
conversion, a Class A misdemeanor, I.C. § 35-43-4-3 (2013). On May 8, 2014,
the trial court conducted a jury trial. At the close of the evidence, the jury
returned a guilty verdict on both Counts. On June 5, 2014, the trial court held a
sentencing hearing. Due to double jeopardy considerations, the trial court
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 3 of 10
merged Count II into Count I and imposed a three-year sentence, fully executed
in Tippecanoe County Community Corrections.
[8] Wallen now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] Wallen claims that the trial court improperly instructed the jury on the intent
element of his charged offense. In general, instruction of the jury is a matter
reserved to the sound discretion of the trial court and is subject to review only
for an abuse of that discretion. Townsend v. State, 934 N.E.2d 118, 127 (Ind. Ct.
App. 2010), trans. denied. The purpose of jury instructions is to apprise “the jury
of the law applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.” Id.Jury instructions should “be considered as a whole and in reference to each
other.” Id. at 130. Accordingly, we will not reverse unless the instructions,
when considered together, “misstate the law or mislead the jury.” Id.[10] During the trial, the State proposed the following jury instruction:
Instruction 12.47 Evidence of theft and/or conversion – I.C. 35-43-
4-4
The price tag or price marking on property displayed or offered for sale
constitutes evidence of the value and ownership of the property.
Evidence that a person:
(1) concealed property displayed or offered for sale; 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 evidence of intent to deprive the owner of the property of a
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 4 of 10
part of its value and/or that the person exerted unauthorized control
over the property.
(Appellant’s App. p. 21). Over Wallen’s objection that the instruction
impermissibly highlights specific evidence and also “constitut[es] [an] improper
mandatory [rebuttable] presumption[,]” the trial court tendered it to the jury.
(Tr. pp. 137-38).
[11] In order to prove that Wallen committed theft as a Class D felony, the State
was required to establish that he knowingly or intentionally exerted
unauthorized control over Walmart’s property, with the intent to deprive
Walmart of the value or use thereof. I.C. § 35-43-4-2(a) (2013). The jury was
explicitly instructed that the State had to “prove each element of the crime”
beyond a reasonable doubt. (Appellant’s App. p. 22). Wallen now contends
that the challenged instruction invaded the role of the jury by presuming an
ultimate issue of the case. We agree.
[12] In particular, we find that the instruction is erroneous because it does not afford
the jury an opportunity to determine whether the evidence revealing that
merchandise was concealed in Dulin’s purse is proof that Wallen intended to
deprive Walmart of its value or that he exerted unauthorized control over the
property; instead, it prompts the jury to reach such a conclusion. See Chandler v.
State, 581 N.E.2d 1233, 1236 (Ind. 1991). Our court has previously found error
in a jury instruction that, as in the present case, tracked the language of Indiana
Code section 35-43-4-4, which delineates the types of evidence that may be used
to establish the crime of theft. In Matney v. State, 681 N.E.2d 1152, 1153 (Ind.
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 5 of 10
Ct. App. 1997), reh’g denied; trans. denied, we found that the instruction failed to
“clearly advise the jury that the ultimate issue to be presumed from the evidence
is only permissive and that the jury is free to accept or reject the presumption.”
Id. We concluded that the instruction “constitute[d] an improper mandatory
rebuttable presumption which relieve[d] the State of the burden of persuasion
on an element of the offense.” Id.[13] As our supreme court has explained, “[a] mandatory presumption instructs the
jury that it must infer the presumed fact if the State proves certain predicate
facts.” Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998). Such presumptions
violate due process because “they relieve the State of the burden of persuasion
on an element of an offense.” Id. If, however, a jury instruction creates a
permissive inference rather than a mandatory presumption, the State remains
burdened “to convince the jury that the suggested conclusion should be inferred
based on the predicate facts proved.” Id.[14] Here, the instruction states that evidence that a person has concealed and
removed property from its point of display “constitutes evidence of intent to
deprive the owner of the property of a part of its value and/or that the person
exerted unauthorized control over the property.” (Appellant’s App. p. 21).
Nothing in the instruction informs the jurors that they may infer Wallen’s
criminal intent from such evidence. See Brown, 691 N.E.2d at 445 (noting that
“the phrases ‘may look to,’ ‘may infer,’ and ‘may consider,’ are indicative of
permissive inferences, not mandatory presumptions”). Rather, the instruction
indicates that the evidence requires the jury to reach such a conclusion.
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 6 of 10
Therefore, we hold that the jury instruction is improper because it relieves the
State of its burden to prove the element of intent.
[15] Nevertheless, the State asserts that reversal is not warranted because any error
in the giving of the jury instruction was harmless. Errors in jury instructions are
harmless if the “conviction is clearly sustained by the evidence and the jury
could not properly have found otherwise.” Dill v. State, 741 N.E.2d 1230, 1233
(Ind. 2001). Thus, an instruction error will warrant reversal only if we “‘cannot
say with complete confidence’ that a reasonable jury would have rendered a
guilty verdict had the instruction not been given.” Id.[16] In the present case, Loop testified that he directly observed as both Wallen and
Dulin selected several items of electronic and clothing merchandise, removed
the tags and packaging, and concealed the goods in Dulin’s purse. They then
proceeded to the store’s exit without stopping at the cash registers. In addition,
the jury viewed the footage from Walmart’s video surveillance, which captured
Wallen and Dulin “selecting merchandise and leaving the store.” (Tr. p. 65).
Wallen directs our attention to Dulin’s testimony that Wallen was completely
oblivious to the fact that she had concealed merchandise in her purse, but it is
well established that our court will not interfere with the jury’s determinations
of witness credibility and evidentiary weight. Accordingly, because there was
overwhelming evidence from which the jury could independently conclude that
Wallen exerted unauthorized control over Walmart’s merchandise with the
intent to deprive the store of the value thereof, we conclude that the error in the
instruction was harmless. See Matney, 681 N.E.2d at 1153.
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 7 of 10
CONCLUSION
[17] Based on the foregoing, we conclude that the trial court abused its discretion in
tendering the jury instruction; however, such error was harmless in light of the
evidence of Wallen’s guilt.
[18] Affirmed.
[19] Vaidik, C. J. concurs
[20] Baker, J. concurs in result with separate opinion
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 8 of 10
IN THE
COURT OF APPEALS OF INDIANA
Jimmy Wallen, Jr., Court of Appeals Case No.
79A02-1407-CR-469
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Baker, Judge, concurring in result.
[21] While I concur in the result reached by the majority, I must part ways with its
analysis regarding the jury instruction. The majority finds that the instruction is
problematic based on this Court’s opinion in Matney v. State, 681 N.E.2d 1152(Ind. Ct. App. 1997). In Matney, the jurors were instructed as follows:
[e]vidence that a person concealed property displayed or offered for
sale and removed the property from any place within the business
premises at which it is . . . 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 its value or use, and that
the person exerted unauthorized control over the property.
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 9 of 10
Id. at 1153 (emphasis added). The Matney Court then noted the way in which
the trial court defined “prima facie evidence” for the jury and concluded that
the instruction was improper because it did not “clearly advise the jury that the
ultimate issue to be presumed from the evidence is only permissive and that the
jury is free to accept or reject the presumption . . . .” Id.[22] In the instant case, unlike in Matney, the jury was not instructed that evidence
of concealment plus removal constitutes prima facie evidence of intent to
deprive. Instead, the jury was merely instructed that evidence of concealment
plus removal constitutes “evidence” of intent to deprive. Appellant’s App. p.
21. In my view, there is a marked distinction between “prima facie evidence,”
which necessarily implies a presumption, and “evidence” alone, which merely
informs the jury of what facts may constitute evidence of intent. I believe that
the jury instruction in this case is appropriate and accurate, and part ways with
the majority’s conclusion that it was erroneous. I agree with the result reached
by the majority, however, and would likewise affirm Wallen’s conviction.
Court of Appeals of Indiana | Opinion | 79A02-1407-CR-469 | March 27, 2015 Page 10 of 10