Sandra Rivas v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Feb 23 2012, 8:53 am
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:
KEVIN WILD GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SANDRA RIVAS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1106-CR-544
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt M. Eisgruber, Judge
The Honorable Steven J. Rubick, Magistrate
Cause No. 49F24-0907-FD-60699
February 23, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Sandra Rivas appeals from her conviction for Class D felony
Theft,1 contending that the State produced insufficient evidence to sustain her conviction.
We affirm.
FACTS AND PROCEDURAL HISTORY
On or about March 5, 2009, Beatriz Navelo returned home to find that her home had
been broken into and that her and her daughter‘s jewelry boxes had been taken. The jewelry
in the boxes was worth a few thousand dollars. Navelo had at one point owned a jewelry
store that sold, inter alia, custom jewelry made by her father, and some of the items stolen
were examples of that custom jewelry. Around June of 2009, Ismael Ramiraz, a former
customer at Navelo‘s jewelry store, saw some of her custom jewelry for sale in a pawnshop
and notified her. Navelo then notified police.
Police determined that the custom jewelry had been sold by Rivas and accessed an
online database to discover if she had sold any other items recently. As it happened, between
March 11, 2009, and May 15, 2009, Rivas had sold thirty-one jewelry items at two
Indianapolis pawn shops. In a statement to police, Rivas claimed that she had traded stereo
speakers to two ―Hispanic guys‖ for the jewelry and had then sold some of it for $1000.
Rivas also told police that the men later wanted the jewelry back because the speakers did not
work and she gave them $500 and the remaining jewelry. Rivas provided police a telephone
number, claiming that it was for the men, which number turned out to be invalid or
disconnected. On July 1, 2009, the State charged Rivas with Class D felony theft. On May
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Ind. Code § 35-43-4-2(a) (2008).
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25, 2011, the trial court found Rivas guilty as charged and sentenced her to 545 days of
incarceration, with 531 days suspended and 365 days of probation.
DISCUSSION AND DECISION
Whether the State Produced Sufficient Evidence to Sustain Rivas’s Conviction
When reviewing the sufficiency of the evidence to support a conviction, we consider
only the probative evidence and reasonable inferences supporting the verdict. Drane v. State,
867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder‘s role to assess witness credibility and
weigh the evidence to determine whether it is sufficient to support a conviction. Id. We
consider conflicting evidence in the light most favorable to the trial court‘s ruling. Id. We
affirm the conviction unless no reasonable fact-finder could find that the elements of the
crime were proven beyond a reasonable doubt. Id.In order to convict Rivas of theft, the State was required to prove that she ―knowingly
or intentionally exert[ed] unauthorized control over property of another person, with intent to
deprive the other person of any part of its value or use[.]‖ Ind. Code § 35-43-4-2(a).
[T]he mere unexplained possession of recently stolen property standing alone
does not automatically support a conviction for theft. Rather, such possession
is to be considered along with the other evidence in a case, such as how recent
or distant in time was the possession from the moment the item was stolen, and
what are the circumstances of the possession (say, possessing right next door
as opposed to many miles away). In essence, the fact of possession and all the
surrounding evidence about the possession must be assessed to determine
whether any rational juror could find the defendant guilty beyond a reasonable
doubt.
Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010).
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It is not in dispute that Rivas was in possession of at least some of Navelo‘s jewelry
approximately six days after it was stolen. Moreover, although Rivas told police that she had
received the stolen jewelry from a couple of Hispanic men, the contact information for them
that she provided was either false or inaccurate, casting doubt on the entire story. Donovan v.
State, 937 N.E.2d 1223, 1227 (Ind. Ct. App. 2010) trans. denied (―Although Donovan said
that he had received the vehicle from ‗Paul Monroe‘ at the Pilot Truck Stop in Marshall
County, Indiana, and that Monroe asked him to transport the vehicle, Donovan could not
provide contact information for Monroe.‖). We conclude that the evidence of Rivas‘s
possession along with the surrounding evidence is sufficient to sustain her conviction.
We note that even if Rivas‘s story about the Hispanic men were true, it would still be
sufficient to support her conviction for theft, because it is compelling evidence that she knew
that the jewelry was stolen when she received it. It is well-settled that a person may be
convicted of theft even if the evidence that she knowingly received the stolen items is
stronger than evidence that she was the actual thief.
If the State meets its burden of proof with respect to all the necessary elements
of either the theft or receiving stolen property offense as alleged in the
charging instrument, it is of no consequence whether the accused was the
person who actually took the stolen property from its authorized possessor
because, once this burden is met, the State has proved that the accused,
whether actual thief or not, has done precisely what is forbidden by both
subsection (a) and (b) [of Indiana Code Section 35–43–4–2]—knowingly or
intentionally exercising unlawful control over property of another with a
purpose to deprive.
Gibson v. State, 643 N.E.2d 885, 892 (Ind. 1994).
―Knowledge that the property is stolen may be established by circumstantial
evidence; however, knowledge of the stolen character of the property may not
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be inferred solely from the unexplained possession of recently stolen
property.‖ Johnson v. State, 441 N.E.2d 1015, 1017 (Ind. Ct. App. 1982). The
test of knowledge is a subjective one, asking whether the defendant knew from
the circumstances surrounding the possession that the property had been the
subject of a theft. Purifoy v. State, 821 N.E.2d 409, 414 (Ind. Ct. App. 2005),
trans. denied. Possession of recently stolen property when joined with
attempts at concealment, evasive or false statements, or an unusual manner of
acquisition may be sufficient evidence of knowledge that the property was
stolen. Id.Barnett v. State, 834 N.E.2d 169, 172 (Ind. Ct. App. 2005).
According to Rivas, she traded very little (two stereo speakers) to persons she did not
know for jewelry, only a portion of which she was then able to sell for $1000 at pawn shops.
Trading stereo speakers to two unknown persons for jewelry worth at least $1000 is unusual,
to say the least. This unusual manner of acquisition indicates that, even if Rivas was not the
actual thief, she knew that the jewelry was stolen when she received it, which is sufficient to
sustain her conviction. See id. (concluding that evidence was sufficient to sustain conviction
for receiving stolen goods where defendant testified that he purchased videogame equipment
from unknown person in a fast food drive-through for $40 and was then offered $131 for
same items at nearby store soon thereafter). We conclude that the State presented sufficient
evidence to sustain Rivas‘s theft conviction.
The judgment of the trial court is affirmed.
KIRSCH, J., and BARNES, J., concur.
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