Kenneth Wells v. State of Indiana (mem. dec.)

FILED
MEMORANDUM DECISION Jul 26 2016, 9:00 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court
Court of Appeals
and Tax Court
this Memorandum Decision shall not be
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
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Wells, July 26, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1512-CR-2259
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Allan Reid,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G10-1503-CM-7507
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2259 | July 26, 2016 Page 1 of 5
STATEMENT OF THE CASE
[1] Appellant-Defendant, Kenneth Wells (Wells), appeals his conviction for theft, a
Class A misdemeanor, Ind. Code § 35-43-4-2.
[2] We affirm.
ISSUE
[3] Wells raises one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to sustain his
conviction for theft.
FACTS AND PROCEDURAL HISTORY
[4] On October 14, 2014, Officer Andrew Hashley (Officer Hashley) of the
Indianapolis Metropolitan Police Department responded to a report of a theft
from a residence in Marion County, Indiana. Carl Hudson (Hudson), who was
staying at the residence, had noticed that “certain stuff was moved around” and
realized that a number of items were missing from his room, i.e., a pair of
Jordan tennis shoes, a computer tablet, and an amplifier. Hudson informed his
mother, Yvonne Hasell (Hasell), who lived in the house. Wells, the son-in-law
of Hasell’s spouse, had access to the house through one of the family members.
Approximately five to six hours after the theft was discovered, Wells returned
Hudson’s tennis shoes. Hudson also later learned that Wells had pawned the
amplifier.
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[5] Detective Richard Stratman (Detective Stratman) investigated certain pawn
shop transactions and obtained a record from the Indy Pawn store located on
Pendleton Pike, in Indianapolis. This record and a similar pawn slip described
the pawned property as “AMPS CAR AUDIO CRUNCH POWERZONE
P1500.1” and contained the right thumbprint of the person pawning the item.
(State’s Exh. 1, 2). This person was later identified as Wells.
[6] On March 5, 2015, the State filed an Information charging Wells with theft, a
Class A misdemeanor. On October 26, 2015 and November 30, 2015, the trial
court conducted a bench trial and declared Wells guilty as charged. That same
day, the trial court proceeded to sentencing and sentenced Wells to 365 days,
with 361 days suspended to probation and 40 hours of community service.
[7] Wells now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Wells contends that the State did not present sufficient evidence beyond a
reasonable doubt to support his conviction. When reviewing a claim of
insufficient evidence, the appellate court will neither reweigh the evidence nor
judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005). We consider only the probative evidence and reasonable inferences
supporting the judgment. Id. And we must affirm “if the probative evidence
and reasonable inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”
Id.
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[9] In its charging Information, the State charged Wells with “knowingly or
intentionally exert[ing] unauthorized control over the property of [Hudson], to-
wit: an amplifier, with the intent to deprive [Hudson] of any part of the use or
value of the property[.]” 1 (Appellant’s App. p. 15). Here, the State did not
premise its case on whether or not Wells actually stole the amplifier from the
residence, rather, the State posited that Wells’ act of pawning the amplifier
amounted to a knowing exercise of unauthorized control. “Knowledge that the
property is stolen may be established by circumstantial evidence; however,
knowledge of the stolen character of the property may not be inferred solely
from the unexplained possession of recently stolen property.” Fortson v. State,
919 N.E.2d 1136, 1143 (Ind. 2010) (quoting Barnett v. State, 834 N.E.2d 169,
172 (Ind. Ct. App. 2005)). 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.
[10] Here, the evidence most favorable to the judgment establishes that Wells had
access to the residence through one of the family members. Approximately five
1
Under the 2014 revision of Title 35 of the Indiana Code, receiving stolen property is no longer a separate
crime. See P.L. 158-2013, § 463 (eff. Jul. 1, 2014). Charges that formerly would have been brought as
receiving stolen property are now categorized as theft charges.
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to six hours after the theft of the tennis shoes, computer tablet, and amplifier
was discovered, Wells returned the tennis shoes to Hudson. Detective
Stratman testified that the theft of the items had taken place on October 8, 2015,
while on October 9, 2015, the amplifier was pawned. The pawn slip contained
Wells’ name and his thumbprint. Hudson testified that the pawned amplifier
was the same as the one taken from his room in the residence. Wells’ access to
the house and his identification through the amplifier’s pawn slip together with
his return of the tennis shoes, creates a reasonable inference that Wells knew
that the amplifier had been the subject of a theft. See Purifoy, 821 N.E.2d at 414.
Accordingly, we conclude that the State presented sufficient evidence beyond a
reasonable doubt that Wells committed theft, as a Class A misdemeanor.
CONCLUSION
[11] Based on the foregoing, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to sustain Wells’ conviction for theft.
[12] Affirmed.
[13] Kirsch, J. and Pyle, J. concur
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