Phyllis A. Merriweather v. State of Indiana (NFP)

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Pursuant to Ind.Appellate Rule 65(D), 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: BARBARA J. SIMMONS Oldenburg, Indiana GREGORY F. ZOELLER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana FILED Dec 09 2010, 9:59 am IN THE COURT OF APPEALS OF INDIANA PHYLLIS MERRIWEATHER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-1005-CR-478 APPEAL FROM THE MARION SUPERIOR COURT The Honorable Barbara Collins, Judge The Honorable John J. Boyce, Master Commissioner Cause No. 49F08-1003-CM-18146 December 9, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION NAJAM, Judge CLERK of the supreme court, court of appeals and tax court STATEMENT OF THE CASE Phyllis Merriweather appeals her conviction for criminal conversion, as a Class A misdemeanor, following a bench trial. Merriweather raises a single issue for our review, namely, whether the State presented sufficient evidence to support her conviction. We affirm. FACTS AND PROCEDURAL HISTORY On March 8, 2010, Merriweather entered a Marion County Wal-Mart while in possession of multiple shopping bags, including two Wal-Mart bags, and a large purse. According to Merriweather, she needed to exchange a tennis shoe at that Wal-Mart. But when she saw that the customer service center was closed, she decided to just go to the shoe department and help herself to the necessary exchange. En route to either the shoe department or the check-out, Merriweather also placed a new wallet in her shopping cart and a new t-shirt in her purse. And in the shoe department Merriweather placed a pair of shoes in one of her shopping bags. Anton Willis, a loss-prevention officer, observed Merriweather taking the wallet and shoes. Merriweather then went to the check-out lane and paid a small amount for other items, and proceeded to exit the store. Willis then called John Johnson, another loss-prevention officer, about Merriweather leaving with unpaid items, and Johnson prevented Merriweather s exit. They then discovered the t-shirt along with the shoes and wallet, and they called the Marion County Sheriff s Department. 2 On March 9, the State charged Merriweather with criminal conversion, as a Class A misdemeanor. The trial court held a bench trial on April 12, after which it found Merriweather guilty as charged. This appeal ensued. DISCUSSION AND DECISION Merriweather argues that the State did not present sufficient evidence to support her conviction for conversion. When reviewing a claim challenging the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the judgment and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. To prove the offense of conversion, as a Class A misdemeanor, the State was required to show beyond a reasonable doubt that Merriweather knowingly or intentionally exerted unauthorized control over the property of another. See Ind. Code ยง 35-43-4-3(a). Here, Merriweather asserts that the State failed to prove her knowledge or intent. Specifically, she argues: the wallet she decided she did not have enough money to purchase was still in her shopping cart. She did not attempt to conceal it. She contends that she already owned the [t]-shirt found in her purse. She explained that she had come to obtain a tennis shoe because of a wrong shoe being previously purchased and that the other shoes had been purchased at another Wal-Mart store. Appellant s Br. at 6-7 (citations to the record omitted). 3 Evidence of intent may be proven by circumstantial evidence alone. See Duren v. State, 720 N.E.2d 1198, 1202 (Ind. Ct. App. 1999), trans. denied. Here, Merriweather entered the store with other Wal-Mart shopping bags in her possession, claimed that she was trying to return a shoe, Appellant s Br. at 6, but when she saw that the customer service center was closed she apparently felt free to help herself to Wal-Mart s shelved merchandise. She then attempted to exit the store with unpaid merchandise in her possession. Willis observed Merriweather obtain and conceal the wallet and shoes, and the t-shirt found in her purse still had its price sticker on it. On those facts, an imminently reasonable conclusion for the fact-finder was that Merriweather knowingly or intentionally exerted unauthorized control over Wal-Mart s property. Merriweather s arguments to the contrary are merely requests for this court to reweigh the evidence, which we will not do. See Jones, 783 N.E.2d at 1139. conviction. Affirmed. DARDEN, J., and BAILEY, J., concur. 4 As such, we affirm her

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