Apr 10 2015, 9:58 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey D. Stonebraker Gregory F. Zoeller
Clark County Chief Public Defender Attorney General of Indiana
Jeffersonville, Indiana
Kenneth E. Biggins
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Middleton, April 10, 2015
Appellant-Defendant, Court of Appeals Case No.
10A04-1407-CR-317
v. Appeal from the Clark Circuit Court;
The Honorable Vicki L. Carmichael,
Judge;
State of Indiana, 10C04-1309-FC-246
Appellee-Plaintiff.
May, Judge.
Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015 Page 1 of 6
[1] Jeremy Middleton challenges the sufficiency of evidence support his conviction
of Class D felony theft.1
[2] We reverse.
Facts and Procedural History
[3] On September 19, 2013, Middleton entered Rural King with two other people.
Employees notified Roxanne Mundy, a department manager, of suspicious
behavior. Mundy started to observe and follow Middleton. Mundy saw
Middleton attempt to cut the security device from a product, but she was unable
to identify that product. Mundy thought Middleton saw her, and Middleton
then left the store.
[4] Doug Burdin, another department manager, and Christopher Watkins, the store
manager, followed Middleton and Mundy into the parking lot in order to
obtain a license plate number or a car description. Middleton said to Mundy:
“Why are you following me? I’ve got nothing.” (Tr. at 84.) Mundy insisted
Middleton return “what you have.” (Id. at 31.) Both Mundy and Middleton
threatened to call the police. During their interaction, Middleton was raising
his shirt and putting his hands in his pockets. At one point, Middleton pulled a
knife from his pocket, which he dropped and Mundy retrieved. Mundy gave
the knife to Watkins.
1
Ind. Code 35-43-4-2 (2013).
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[5] Watkins saw a police car driving nearby and flagged down Officer Jeff Gordon
to assist. Middleton, on seeing the police, started running away. Burdin
watched where Middleton was going and pointed him out to Officer Gordon.
Officer Gordon was able to catch Middleton and arrest him. Middleton
declared his innocence.
[6] At trial, in support of the theft charge,2 the State presented the testimony of
Mundy, Watkins, and Burdin. Middleton objected to parts of their testimony
as hearsay. The court allowed the testimony, but it admonished the jury that
the testimony was to be used to explain the actions of the Rural King
employees, not to prove the truth of the matter asserted. The jury found
Middleton guilty.
Discussion and Decision
[7] On appeal, Middleton asserts there was insufficient evidence to support his
conviction of Class D felony theft.
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. 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. To preserve this structure, when appellate courts are
confronted with conflicting evidence, they must consider it most
favorably to the trial court’s ruling. Appellate courts affirm the
2
The State also charged Middleton with intimidation, a Class C felony, based on his pulling a knife from his
pocket during the interaction with Mundy. The jury convicted him of that charge, but he does not challenge
it on appeal.
Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015 Page 3 of 6
conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of
innocence. The evidence is sufficient if an inference may reasonably
be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations, citation, and
footnote omitted) (emphasis in original).
[8] Theft is committed when a person “knowingly or intentionally exerts
unauthorized control over property of another person, with intent to deprive the
other person of any part of its value. . . .” Ind. Code § 35-43-4-2. Middleton’s
charging information pertaining to the theft stated:
On September 19, 2013, in Clark County, State of Indiana, JEREMY
LEE MIDDLETON did knowingly or intentionally exert
unauthorized control over a range-finder of Rural King, with intent to
deprive Rural King of any part of its value or use.
(App. at 6.)
[9] As to this charge, the testimony of Mundy that was offered for the truth of the
matter asserted was that she followed Middleton through the store; she saw him
cutting on a security device, but she could not see the product he was
attempting to extricate; and she followed him outside. The testimony of Burdin
and Watkins that was admitted for the truth of the matter asserted related only
to Middleton’s actions after leaving the store.
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[10] With the removal of the hearsay testimony,3 which the jury was admonished
was “not . . . offer[ed] . . . for the truth of the matter asserted, simply, so the
Jury can understand what she did,” (Tr. at 14), and “not saying anything for the
truth of the matter asserted,” (id. at 18), the evidence presented against
Middleton as to the charge of theft amounts to Mundy’s statements that she
followed him, she saw him using a knife on a security device, and he left the
store. Although Mundy saw Middleton using a knife on something, she was
unable to identify the product. No other evidence was presented to prove
Middleton took a range-finder. That is not sufficient evidence from which a
reasonable jury could infer Middleton knowingly or intentionally exerted
unauthorized control over a range-finder. See Williams v. State, 714 N.E.2d 671,
674 (Ind. Ct. App. 1999) (insufficient evidence to support conviction when all
elements of theft were not proven).
Conclusion
[11] The evidence was insufficient to support Middleton’s conviction of Class D
felony theft; therefore, we reverse.
[12] Reversed.
3
The testimony objected to on hearsay grounds pertained to why Mundy started following Middleton,
a cashier’s report of someone in line talking on a phone saying Middleton was being followed and they
needed to leave, and the report of the discovery of a range finder under some animal feed.
The employees who allegedly saw Middleton with a range finder were not called to testify. The
employees who allegedly discovered a range finder in the animal feed were not called to testify. No
surveillance video was entered into evidence. No pictures of a range finder were entered into evidence.
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Barnes, J., and Pyle, J., concur.
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