Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Aug 15 2014, 10:00 am
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:
JEREMY K. NIX GREGORY F. ZOELLER
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEPHEN W. MCINTYRE, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1402-CR-82
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Kenton W. Kiracofe, Special Judge
Cause No. 35D01-1304-FD-78
August 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Stephen W. McIntyre appeals his conviction for theft, as a Class D felony,
following a jury trial. McIntyre raises the following two issues for our review:
1. Whether the trial court abused its discretion when it denied his
motion for a mistrial; and
2. Whether the State presented sufficient evidence to support his
conviction.
We affirm.
FACTS AND PROCEDURAL HISTORY
In January and February of 2013, McIntyre worked as a jail officer for the
Huntington County Sheriff’s Department. At that time, Deputy David McVoy began a
“pop fund” at the Sheriff’s station to raise money to help pay the ongoing costs of care
and equipment for Zeek, a canine unit. Tr. at 176. Deputy McVoy stocked an office
refrigerator with cans of soda and placed “an old Folgers can” on top of the refrigerator.
Id. at 179. Anyone who removed a soda would place fifty cents in the coffee can.
Deputy McVoy purchased the soda with his own money and regularly stocked the
refrigerator. He also placed loose coins and dollar bills in the coffee can so participants
could make change as needed. This money was also personally provided by Deputy
McVoy.
Deputy McVoy was “the only one [who] touched the money” and neither he nor
Sheriff Terry Stoffel “authorize[d] anyone else to remove money from the Folgers can
other than for the purpose of making change.” Id. at 181. Deputy McVoy checked the
contents of the coffee can at least once per day. He would remove any bills over $5
2
“fairly quick,” but he would “usually leave . . . three or four or five ones in there just in
case somebody needed to make change . . . .” Id. at 211. When he would remove the
coins, the total dollar amount in coinage was typically about sixty to seventy dollars.
Aside from small purchases for Zeek that he could make immediately, Deputy McVoy
submitted all money removed from the coffee can to the Sheriff Department’s “matron,”
the Department’s bookkeeper, who put the money in “the canine fund.” Id. at 176, 357.
In March, Sheriff Stoffel became suspicious that McIntyre was removing money
from the pop fund. Sheriff Stoffel contacted the Indiana State Police, and state officers
placed video surveillance equipment into the squad room where the coffee can was
located. State officers further placed investigative funds into the coffee can. On at least
eight separate occasions, state officers recorded McIntyre approaching the coffee can and
removing money, which he followed by also taking a soda, without placing any money of
his own in the coffee can. Id. at 303-11. On three of those occasions, McIntyre “act[ed]
like he [was] throw[ing] change into the container.” Id. at 305. On a fourth occasion,
another department employee walked into the room with McIntyre, and he responded by
trying to hide the money he had removed from the can behind his back.
On another occasion subsequent to the recorded events, a state investigator
counted thirty-seven dollars in bills in the coffee can before McIntyre entered the room,
observed McIntyre enter the room, and, sometime later, then counted twenty-four dollars
in bills in the coffee can. The next day, that same investigator counted twenty-five
dollars in bills in the can, observed McIntyre enter the room, and, sometime later, then
3
counted eighteen dollars in bills in the can. Thereafter, Sheriff Stoffel arrested McIntyre
and fired him.
On April 19, the State charged McIntyre with theft, as a Class D felony. At his
ensuing jury trial, Sheriff Stoffel testified as follows:
THE STATE: [D]escribe what peaked your interest? What set your
senses on fire?
***
WITNESS: From the beginning . . . there were multiple things that added
up to where we are at today. I would go in there and I would see . . . that
there would be a big wad of money, dollar bills . . . in that and then I would
go back later in a day or in an hour or two later and I would notice that
dollar bills were missing. It was a lot smaller than it was.
THE STATE: Okay.
WITNESS: And Officer McVoy works at night and I knew he wasn’t
coming in and taking it so I kind of wondered . . . . what was going on . . . .
***
WITNESS: So . . . there was a particular jail officer [who] was making
frequent trips down the hallway past my office going into that room and
coming back with pop.
THE STATE: Why was that unusual? I mean, that’s part of the
entire Sheriff’s Department, right?
WITNESS: Yes, it is. But I’m talking . . . once every hour and ten (10) or
fifteen (15) minutes he was coming down that hallway. And I didn’t really
like that very much so I actually confronted him.
***
WITNESS: I actually confronted Steve McIntyre in the hallway that he’s
got to go by to get to the pop fund and as he stood there and talked to me
three quarters fell out of his hand.
THE STATE: And this was just after he came out . . . .
4
WITNESS: After he came out of the break room, yea.
THE STATE: Okay.
WITNESS: So that in itself was suspicious to me because pop is fifty
cents.
THE STATE: Okay.
WITNESS: So I wouldn’t know why he would have three quarters fall on
the ground. Two would have been fine. I wouldn’t have thought as much
about that or none but three (3) quarters fell on the floor. And that was
another indicator that I didn’t like what was going on and with the prior
history that I had with Mr. McIntyre . . . .
Id. at 358-60 (emphasis added). McIntyre’s counsel promptly objected at this point.
Following a sidebar, the State continued its examination of Sheriff Stoffel:
THE STATE: Okay . . . you were telling the jury the things that
peaked your interest on this matter.
WITNESS: [W]e had some money that was missing and shrinking. We
had the quarters falling in the hallway. And then accompanied with what I
knew, the history that I had had with Steve McIntyre before with his
deception and lying.
Id. at 361 (emphasis added). McIntyre’s counsel again promptly objected and requested
a mistrial. Following a discussion outside the presence of the jury, the trial court
sustained the objection but denied the request for a mistrial. The court then admonished
the jury as follows: “The Court is going to admonish you that you are not to consider any
statements made by this witness after he said he had a history with the Defendant. You
may not consider those statements in any way.” Id. at 388.
The jury found McIntyre guilty as charged, and the court entered its judgment and
sentence accordingly. This appeal ensued.
5
DISCUSSION AND DECISION
Issue One: Mistrial
On appeal, McIntyre first asserts that the trial court abused its discretion when it
denied his motion for a mistrial. To succeed on appeal from the denial of a motion for a
mistrial, a defendant “must demonstrate that the conduct complained of was both error
and had a probable persuasive effect on the jury’s decision.” Booher v. State, 773 N.E.2d
814, 820 (Ind. 2002). The trial court’s decision to grant or deny a mistrial “is reviewed
only for abuse of discretion.” Knapp v. State, 9 N.E.3d 1274, 1283 (Ind. 2014). Mistrial
is “an extreme remedy in a criminal case which should be granted only when nothing else
can rectify a situation.” Id. at 1284 (quotations omitted). Our deferential review of
decisions to grant or deny a mistrial reflects that the trial court is in the best position to
gauge the surrounding circumstances of the event and its impact on the jury. Id.
(quotation omitted). “A prompt admonishment advising the jury to disregard the
improper testimony is usually enough to avoid a mistrial.” TRW Vehicle Safety Sys. Inc.
v. Moore, 936 N.E.2d 201, 213 (Ind. 2010).
The trial court did not abuse its discretion when it denied McIntyre’s motion for a
mistrial. At the time Sheriff Stoffel made his inadmissible statement, the jury had before
it eight video recorded instances of McIntyre approaching the coffee can and removing
money and a soda without placing any money of his own in the coffee can. Tr. at 303-11.
On three of those occasions, McIntyre “act[ed] like he [was] throw[ing] change into the
container.” Id. at 305. On a fourth occasion, another department employee walked into
the room with McIntyre and he responded with furtive gestures. The jury also had before
6
it the testimony of a state investigator who stated that, on two occasions, he counted less
money in the coffee can after McIntyre had passed through the room than was in the can
before McIntyre had entered.
The trial court was within its discretion to conclude that the probable persuasive
effect of Sheriff Stoffel’s statement was minor. Moreover, the trial court admonished the
jury to disregard Sheriff Stoffel’s inadmissible statement. The trial court’s
admonishment, on these facts, was enough to cure the error. We affirm the trial court’s
denial of McIntyre’s motion for a mistrial.
Issue Two: The State’s Evidence
McIntyre also asserts that the State failed to present sufficient evidence that he
committed theft, as a Class D felony. When reviewing a claim of 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 verdict and the reasonable inferences that may be drawn from that
evidence to determine whether a reasonable trier of fact could conclude 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.
McIntyre’s argument on appeal is not that the State’s evidence fails to demonstrate
each element of theft, as a Class D felony. That is, McIntyre concedes that the State
demonstrated that he knowingly or intentionally exerted unauthorized control over the
property of another person, with the intent to deprive the other person of any part of its
value or use. Ind. Code § 35-43-4-2(a). McIntyre’s exclusive argument on appeal is that
7
the charging information alleges he stole the money of Deputy McVoy, whereas the
State’s evidence demonstrates that he stole the money of the Huntington County Sheriff’s
Department.
While McIntyre styles his argument as challenging the sufficiency of the State’s
evidence, in fact his argument is that the State’s evidence was a fatal variance from the
facts alleged in the charging information. “A variance is an essential difference between
proof and pleading.” Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999). Not all variances
are fatal, however:
The test to determine whether a variance between the proof at trial and a
charging information or indictment is fatal is as follows:
(1) was the defendant misled by the variance in the evidence from
the allegations and specifications in the charge in the preparation and
maintenance of his defense, and was he harmed or prejudiced
thereby;
(2) will the defendant be protected in [a] future criminal proceeding
covering the same event, facts, and evidence against double
jeopardy?
Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997). Further, “[t]he State is not required
to include detailed factual allegations in the charging instrument,” and, “[w]hen the
factual allegations in the charge are not necessary to the sufficiency of the charge, a
greater variance between the allegations and the proof is tolerated before finding the
variance material or fatal.” Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001).
But “[i]n order for this Court to consider this issue on appeal, the defendant must
have properly objected to the jury instruction,” which specified that the State was
required to prove all of the material allegations contained in the charging information,
8
“and have proffered a written jury instruction which would correct the error.” Mitchem,
685 N.E.2d at 674. “If the defendant failed to tender an instruction on the issue, the
defendant cannot now complain of an incomplete or omitted instruction.” Id.
McIntyre did not object to the trial court’s jury instructions on this issue, and he
did not proffer an instruction that would have corrected this alleged error. Moreover, and
perhaps because he has mistakenly styled his variance argument as a sufficiency
argument, McIntyre does not apply the facts of this case to our case law describing when
a variance might be fatal. As such, McIntyre’s argument on appeal is not supported by
cogent reasoning. For all of these reasons, McIntyre’s argument is not subject to
appellate review. Ind. Appellate Rule 46(A)(8)(a); Mitchem, 685 N.E.2d at 674-75.
Waiver notwithstanding, we agree with the State that, to support a charge of theft,
“the well established rule [is] that it is not necessary to prove absolute title or ownership
in the alleged owner, but sufficient if the evidence shows that the alleged owner to be
properly in possession as a bailee, agent, trustee, executor, or administrator.” Raines v.
State, 514 N.E.2d 298, 299 (Ind. 1987). The evidence at trial unquestionably
demonstrates that Deputy McVoy meets this test on behalf of the Sheriff’s Department,
and we will not consider McIntyre’s argument that Deputy McVoy does not meet this test
because the money McIntyre stole happened to be planted for investigative purposes.
Thus, McIntyre’s argument on appeal is unpersuasive, and we affirm his conviction for
theft, as a Class D felony.
Affirmed.
BAILEY, J., and PYLE, J., concur.
9