Lorinda Harper v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any FILED
May 25 2012, 9:17 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
ANN L. GOODWIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LORINDA HARPER, )
)
Appellant-Defendant, )
)
vs. ) No. 90A02-1110-CR-981
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable Kenton W. Kiracofe, Judge
Cause No. 90C01-1109-FD-55
May 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Lorinda Harper (“Harper”) appeals from her conviction after a bench trial of receiving
stolen property1 as a Class D felony. Harper presents the following issue for our review:
whether the evidence of Harper’s unexplained possession of a motor vehicle at the time of
her arrest is sufficient to support her conviction of receiving stolen property.
We affirm.
FACTS AND PROCEDURAL HISTORY
On December 8, 2006, at approximately 3:00 a.m., Joel Knell’s (“Knell”) wife went
into premature labor. Knell shoveled the sidewalk and started his Ford Windstar minivan.
Knell went indoors to help his wife, and discovered that the van was missing when he
returned outside. Knell testified at trial that he did not know Harper and did not give her
permission to drive his van.
On February 5, 2007, Officer Greg Steele (“Officer Steele”) of the Bluffton Police
Department initiated a traffic stop of a vehicle driven by Harper. In the process of that
investigation, Officer Steele learned that the vehicle was the Knells’ van, which had been
reported stolen. The van was impounded and towed. Officer Steele told Harper that the
vehicle had been reported stolen. Harper denied that the minivan was stolen, and offered no
explanation for her possession of the vehicle.
Several weeks after the traffic stop, Harper’s attorney submitted to police officers
statements by Amber Snider (“Snider”) and Ambrosia Booher (“Booher”) implicating Cody
Lopez (“Lopez”) in the theft of the Knells’ minivan. Snider and Harper knew each other
1
See Ind. Code § 35-43-4-2(b).
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from a time where they were in jail together and Snider was serving a sentence for receiving
stolen property. Snider lived with Harper and had dated Lopez until the relationship ended
unpleasantly in 2006. Booher had also met Harper in jail and considered Harper to be her
best friend.
Initially, Lopez was charged with the theft of the Knells’ minivan. Officer Steele
began to question the credibility of at least one of the people who had implicated Lopez in
the theft. Ultimately, on September 24, 2010, the State charged Harper with auto theft and
receiving stolen property, each as a Class D felony.
Harper waived her right to a jury trial and was convicted after her bench trial. Lopez
denied stealing the minivan, loaning the minivan, or giving Snider, Booher, or Harper
permission to drive the minivan. Snider and Booher indicated that Lopez brought the
minivan to Harper, told her that it belonged to his aunt, and allowed Harper to borrow it.
Booher’s husband, Christopher Dagger (“Dagger”), who was dating Snider in 2007, testified
that he was present when Lopez allowed Harper to use the minivan. Dagger stated that
although he had his own vehicle, Lopez let Harper, Snider, and Booher use the minivan to
run errands. At the conclusion of her trial, the trial court found Harper not guilty of auto
theft and guilty of receiving stolen property. The trial court sentenced Harper to three years
executed with one year suspended. Harper now appeals.
DISCUSSION AND DECISION
Harper argues that there is insufficient evidence to support her conviction for
receiving stolen property. In order to establish that Harper had committed the offense, the
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State was required to show beyond a reasonable doubt that Harper knowingly or
intentionally, received, retained, or disposed of the Knells’ minivan, which had been the
subject of a theft. Harper claims that, at best, the State established only her unexplained
possession of stolen property, which is insufficient to support her conviction.
When reviewing the sufficiency of the evidence to support a conviction, “appellate
courts must consider only the probative evidence and reasonable inferences supporting the
verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting McHenry v. State, 820
N.E.2d 124, 126 (Ind. 2005)). “It is the fact-finder’s role, not that of appellate courts, to
assess witness credibility and weigh the evidence to determine whether it is sufficient to
support a conviction.” Id. We affirm the conviction unless no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt.” Id. (citing Jenkins v.
State, 726 N.E.2d 268, 270 (Ind. 2000)). It is therefore not necessary that the evidence
“overcome every reasonable hypothesis of innocence.” Id. at 147 (citing Moore v. State, 652
N.E.2d 53, 55 (Ind. 1995)).
In Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010), our Supreme Court held that
“the mere unexplained possession of recently stolen property standing alone does not
automatically support a conviction for theft.” Mere unexplained possession “is to be
considered along with the other evidence in a case.” Id. The jury must assess the fact of
possession and all the surrounding evidence about the possession to determine if a rational
juror could find the defendant guilty beyond a reasonable doubt. Id. While knowledge that
the property is stolen may be established by circumstantial evidence, knowledge of the stolen
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nature of the property may not be inferred solely from the unexplained possession of recently
stolen property. Id.In the present case, we are faced not with the unexplained possession of recently
stolen property, but with an explanation for such possession that the trial court as trier of fact
rejected. Harper and defense witnesses claimed that Lopez allowed Harper to drive the
vehicle, and Lopez denied that he had stolen the vehicle and that he had allowed Harper to
drive the minivan. The trial court rejected Harper’s explanation. Harper’s possession of the
minivan is not “unexplained” because Harper offered an explanation that the trial court
rejected, i.e., that Lopez had loaned the vehicle to her. From the trial court’s rejection of
Harper’s explanation, we may infer that the trial court found Harper’s explanation to be false
and misleading. Possession of stolen property coupled with the defendant’s false or
misleading explanation of such possession has long been held to be sufficient evidence upon
which to support a conviction for receiving stolen property. See Barnett v. State, 834 N.E.2d
169, 172 (Ind. Ct. App. 2005) (knowledge inferred from possession coupled with false or
evasive explanation). Consequently, the evidence is sufficient to support Harper’s
conviction.
Affirmed.
BAKER, J., and BROWN, J., concur.
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