FILED
Nov 16 2017, 5:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristina L. Lynn Curtis T. Hill, Jr.
Lynn and Stein, P.C. Attorney General of Indiana
Wabash, Indiana Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenny Purvis, November 16, 2017
Appellant-Defendant, Court of Appeals Case No.
09A02-1702-CR-454
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard A.
Appellee-Plaintiff Maughmer, Judge
Trial Court Cause No.
09D02-1506-F5-53
Baker, Judge.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 1 of 19
[1] Kenny Purvis appeals his convictions for Level 6 Felony Theft,1 Level 6 Felony
Conspiracy to Commit Theft,2 and Level 5 Felony Corrupt Business Influence.3
He contends that the evidence is insufficient to support his convictions and that
the sentence imposed by the trial court was inappropriate in light of the nature
of the offenses and his character. Finding sufficient evidence and that the
sentence is not inappropriate, we affirm.
Facts
[2] On May 9, 2015, an employee of the Walmart in Logansport found an empty
cell phone box in the sporting goods aisle and notified Brady Herrington, an
Asset Protection Officer, about the discovery. Herrington investigated and
reviewed digital security footage from Walmart’s security cameras. While
watching the footage from earlier that day, he observed a member of a group of
four individuals “quickly” grab the cell phone and conceal it underneath
clothing in their shopping cart. Tr. Vol. II p. 42. Tracking the group’s
movement, Herrington observed members of the group, including two
individuals later identified as Purvis and Adam Wakefield, select and conceal
“multiple video games in the same method as the cell phone.” Id. at 43. The
individuals then exited the store without paying for the merchandise and drove
away in a red truck. Based on their behavior and the manner in which they
1
Ind. Code § 35-43-4-2(a)(1).
2
Ind. Code § 35-41-5-2; I.C. § 35-43-4-2(a)(1).
3
Ind. Code § 35-45-6-2(3).
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 2 of 19
concealed the merchandise, Herrington suspected that the group was involved
in “Organized Retail Crime” and sent out a “BOLO” or “Be On Look Out”
notification to other stores in the area. Id. at 37, 54.
[3] On May 15, 2015, another employee at the same Walmart discovered “a lot of
empty . . . keeper boxes”4 in the hardware aisle, hidden behind some light bulbs.
Id. at 55, 69. Herrington reviewed the security footage for that day; he
recognized Purvis from the prior incident and observed him grabbing multiple
copies of the same game. At that time, Wakefield and another individual were
with Purvis and, after taking the games, the group “split up” and took the
games out of view of the cameras, near the hardware aisle. Id. at 60-61. Soon
thereafter, Wakefield and the unidentified individual left; however, they
returned less than twenty minutes later. The group took a labyrinthine route
through the store before stopping at the hardware aisle “for a while[.]” Id. at
81. Another Asset Protection Officer, Amy Powers, testified that, based on her
personal experience, their routes were unusual for most shoppers but “typical
for shop lifting teams.” Id. at 84. The individuals exited the Walmart and
drove away in the same red truck from the first incident.
[4] On May 19, 2015, Powers recognized Purvis, Wakefield, and a woman, later
identified as Charlene Reiner, pushing a cart filled with clothing through the
4
Keeper boxes are plastic security cases containing magnetic strips that set off an alarm if the keeper boxes
are not deactivated and removed before exiting the store. They are meant to deter theft and are commonly
used to store “high theft items,” such as video games, Blu-ray discs, DVDs, and SD cards. Tr. Vol. II p. 55,
108.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 3 of 19
video game aisle. Based on her suspicions and experience, Powers contacted
local police and followed Wakefield, who was pushing the cart. Before
reaching the checkout or the exit, Wakefield was stopped and he, Purvis, and
Reiner were escorted to the Asset Protection Office. Upon examining the cart,
Powers discovered over $400 worth of electronics and video games hidden
inside and under clothing. After interviewing all the individuals, the police
searched each of them and discovered that Wakefield had four empty Walmart
bags in his pockets. Soon thereafter, with Purvis’s consent to search, the police
discovered a Walmart bag containing eight copies of a newly released video
game in his truck. The games in the truck retailed for $59.96 apiece and had
just been released that day. While Purvis denied stealing from the Walmart, he
admitted that he knew the games in the truck were stolen and that Wakefield
told him he planned to steal from the Walmart.
[5] Subsequent investigation by the Logansport Police Department uncovered that
Purvis offered and sold “a lot of video games” on an informal Facebook garage
sale page. Id. at 140, 156; State’s Ex. 6. The garage sale page contained
multiple posts from Purvis’s personal Facebook page advertising the sale of
dozens of “unopened”—and sometimes “brand new”—video games at heavily
discounted prices; some of the games still had Walmart stickers on them. Tr.
Vol. II p. 140, 156. Several of Purvis’s posts and messages to potential
customers indicated that he could acquire specific games and he sometimes
solicited other Facebook users, asking if they wanted a specific game.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 4 of 19
Additionally, some of the sales occurred in the Logansport Walmart parking
lot.
[6] On November 2, 2016, the State filed amended charges against Purvis including
Level 6 felony theft, Level 6 felony conspiracy to commit theft, and Level 5
felony corrupt business influence. The State also alleged that Purvis was an
habitual offender. Purvis’s jury trial took place on January 4 and 5, 2017, and
the jury found Purvis guilty of all charges. On January 6, 2017, Purvis admitted
to being an habitual offender. On January 30, 2017, the trial court sentenced
Purvis to six years for the corrupt business influence conviction and enhanced it
by an additional six years because of Purvis’s habitual offender status. For each
of the remaining convictions, the trial court sentenced Purvis to a two-and-one-
half-year term, each to be served concurrently with the corrupt business
influence conviction. Thus, the trial court sentenced Purvis to an aggregate,
executed sentence of twelve years imprisonment. Purvis now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[7] Purvis first argues that there was insufficient evidence to convict him of each
charge. When reviewing challenges to the sufficiency of the evidence, we do
not reweigh the evidence or judge the credibility of the witnesses. Bond v. State,
925 N.E.2d 773, 781 (Ind. Ct. App. 2010). Instead, we consider only the
evidence most favorable to the verdict and the reasonable inferences drawn
therefrom, and we will affirm if the evidence and those inferences constitute
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 5 of 19
substantial evidence of probative value to support the verdict. Id. Reversal is
appropriate only when a reasonable trier of fact would not be able to form
inferences as to each material element of the offense. Id.
A. Theft
[8] To convict Purvis of Level 6 felony theft, the State was required to prove
beyond a reasonable doubt that he “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,” and that “the value of the property
is at least seven hundred fifty dollars ($750) and less than fifty thousand dollars
($50,000)[.]” I.C. § 35-43-4-2(a)(1)(A).
[9] First, Purvis contends that there is no evidence that he left Walmart with any
video games. However, it is undisputed that there is video evidence from May
9 and 15 showing Purvis and others quickly taking and concealing video games.
State’s Ex. 2-4. There is no evidence of Purvis or any of his cohort paying for
any of these items or placing them back on the shelves before leaving Walmart.
These circumstances alone would be sufficient to support the determination that
Purvis knowingly or intentionally exerted unauthorized control over Walmart’s
property with an intent to deprive Walmart of the property’s value. See K.F. v.
State, 961 N.E.2d 501, 508 (Ind. Ct. App. 2012) (“[T]he theft statute does not
require the State to prove that a defendant was found in possession of the stolen
property or that the property was later recovered in order to find that a person
committed theft.”); see also Hampton v. State, 873 N.E.2d 1074, 1079 (Ind. Ct.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 6 of 19
App. 2007) (“[A] criminal conviction may be based solely on circumstantial
evidence.”).
[10] Furthermore, the following evidence bolsters this conviction:
• On every occasion, Purvis and his team quickly grabbed and concealed
the items, suggesting that they did not intend to buy the video games and
that they did not want anyone to see them with the games. Tr. Vol. II p.
42.
• On May 15, Purvis was last seen with the concealed video games
walking towards the hardware section and, later that day, an employee
found nine empty keeper boxes in the same section.
• On May 19, after spending time in the video game aisle with Purvis and
Reiner, Wakefield was found with four hidden Walmart bags and over
$400 worth of electronics and video games concealed under and inside
clothing in a shopping cart.
• Purvis’s truck contained a Walmart bag with eight stolen copies of a
video game that was released that day.
We find that the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable factfinder to determine that Purvis
knowingly or intentionally exerted unauthorized control over Walmart’s
property with an intent to deprive Walmart of the property’s value.
[11] Next, Purvis contends that the State failed to demonstrate that the value of the
stolen property equaled or exceeded $750. For the purpose of theft, the value of
property is “the fair market value of the property at the time and place the
offense was committed[.]” I.C. § 35-43-4-2(b)(1). Purvis argues that even
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 7 of 19
though there is evidence that he and his accomplices stole dozens of video
games on May 9 and 15, the State failed to demonstrate which ones were
stolen, making valuation of the video games speculative at best. See Lane v.
State, 175 Ind. App. 543, 547, 372 N.E.2d 1223, 1226 (1978) (reversing
conviction for theft of goods greater than a $100 value where the State failed to
provide any evidentiary support for the value of the stolen goods).
[12] However, additional facts provide a sufficient basis for a factfinder to infer the
$750 value. Herrington testified that, at the time of the theft, the video games
found in Purvis’s vehicle retailed for $59.96 apiece, meaning that the eight
games had a fair market value of approximately $480. Tr. Vol. II p. 63.
Considering that those games, which were released that day, were in or next to
a Walmart bag and Purvis admitted that they were stolen, a reasonable
factfinder could have inferred that Purvis stole these games from the
Logansport Walmart.
[13] Furthermore, after Purvis, Wakefield, and Reiner were detained on May 19,
Amy Powers testified that their cart contained eight games, retailing for
approximately $400. Id. at 100. Considering the value of the games in the cart
and the number of games that can be seen taken on the security footage from
May 9 and 15, a reasonable factfinder could have inferred that the $400 worth
of games was characteristic of the value of the games stolen on May 9 and 15.
Lastly, Purvis, Wakefield, and Reiner were not required to leave the store to
satisfy the material elements of theft, meaning that the value of the games found
concealed in their cart is probative of the total value of the stolen goods.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 8 of 19
Therefore, there was sufficient evidence to support the material element that the
value of the stolen property equaled or exceeded $750.
[14] In sum, there was sufficient evidence to support Purvis’s conviction for Level 6
felony theft.
B. Conspiracy
[15] Next, Purvis argues that there was insufficient evidence to convict him of
conspiracy to commit theft. “A person conspires to commit a felony when,
with intent to commit the felony, the person agrees with another person to
commit the felony” and “either the person or the person with whom he or she
agreed perform[s] an overt act in furtherance of the agreement.” I.C. § 35-41-5-
2. “The State is not required to prove the existence of an express agreement[]”
but there must be enough evidence to infer an agreement. Kemper v. State, 35
N.E.3d 306, 310 (Ind. Ct. App. 2015), trans. denied. “‘It is sufficient if the minds
of the parties meet understandably to bring about an intelligent and deliberate
agreement to commit the offense.’” Porter v. State, 715 N.E.2d 868, 870-71 (Ind.
1999) (quoting Williams v. State, 274 Ind. 94, 96, 409 N.E.2d 571, 573 (1980)).
[16] Here, Purvis and Wakefield were together during each trip to Walmart. They
stole the same types of items, concealed them in the same manner and location,
and came and left together in the same vehicle. A reasonable factfinder could
infer an understanding or agreement to commit felony theft from this degree of
coordination. See, e.g., Phares v. State, 506 N.E.2d 65, 68 (Ind. Ct. App. 1987)
(jury could infer an agreement from acts demonstrating the use of tactics and
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 9 of 19
planning). Further, Purvis does not dispute that the concealment of the games
was an overt act in furtherance of stealing the games. Accordingly, there was
sufficient evidence to support Purvis’s conviction for Level 6 felony conspiracy
to commit theft.
C. Corrupt Business Influence
[17] To convict Purvis of Level 5 felony corrupt business influence under Indiana’s
Racketeer Influenced and Corrupt Organizations (RICO) Act,5 the State was
required to prove that he was “employed by or associated with an enterprise,
and . . . knowingly or intentionally conducts or otherwise participates in the
activities of that enterprise through a pattern of racketeering activity[.]” I.C. §
35-45-6-2(3).
[18] First, we must determine whether Purvis was associated with an “enterprise,”
which is defined, among other things, as “a union, an association, or a group,
whether a legal entity or merely associated in fact.” I.C. § 35-45-6-1(c)(2).
“[T]he hallmark of an enterprise is structure. . . . A RICO enterprise is an
ongoing group of persons ‘associated through time, joined in purpose, and
organized in a manner amenable to hierarchical or consensual decision-
making.’” Miller v. State, 992 N.E.2d 791, 794 (Ind. Ct. App. 2013) (quoting
United States v. Rogers, 89 F.3d 1326, 1337 (7th Cir. 1996)). 6 Additionally,
5
I.C. ch. 35-45-6.
6
Though the federal RICO Act and Indiana’s RICO Act are distinct, see Jackson v. State, 50 N.E.3d 767, 769
(Ind. 2016), we have noted that relatively “little has been written in Indiana upon the definition of
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 10 of 19
because a RICO enterprise is more than a group who got together to commit a
pattern of racketeering activity, there should be sufficient evidence to infer that
the group is an “‘organization with a structure and goals separate from the
predicate acts themselves.’” Stachon v. United Consumers Club, Inc., 229 F.3d
673, 675 (7th Cir. 2000) (quoting United States v. Masters, 924 F.2d 1362, 1367
(7th Cir. 1991)).
[19] We find that Purvis’s group was an enterprise for the purposes of RICO. The
thefts were joined in time and purpose: within the span of three weeks, Purvis
and at least two others met and stole primarily video games from the same
location on at least three separate occasions. The group acted in a manner that
was amenable to hierarchal decision-making because Purvis was the one
providing transportation, selling games on the garage sale page, and interacting
with and soliciting customers—he was in a strong position to direct the group’s
efforts towards certain items and actions. See, e.g., Waldon, 829 N.E.2d at 176-
77 (finding a RICO enterprise where defendant recruited three juveniles to
commit a series of burglaries, he provided transportation, they had a consistent
method in how they performed the crimes, and they made “regular . . . attempts
at burglary[]”). Further, there is sufficient evidence from which a reasonable
factfinder could have inferred a “structure and goals separate from the predicate
acts . . . .” Stachon, 229 F.3d at 675. The State produced twelve pages of
‘enterprise,’” Waldon v. State, 829 N.E.2d 168, 176 (Ind. Ct. App. 2005), disapproved on other grounds by
Jackson, 50 N.E.3d at 774-75, and we have observed that “federal cases concerning the general construction
of the Act are instructive,” Miller, 992 N.E.2d at 794.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 11 of 19
Purvis’s Facebook posts selling apparently new and unopened games. State’s
Ex. 6. The earliest post was created on December 15, 2014, and the posts
extend to May 9, 2015. Some of the games in the posts have Walmart stickers
on them and many are priced at half off their retail value. In sum, a reasonable
factfinder could have inferred that the group stole the games, not simply to
obtain the games, but for the ultimate goal of reselling them for profit.
[20] Second, we must determine whether Purvis engaged in “racketeering activity,”
which means “to commit, to attempt to commit, to conspire to commit a
violation of, or aiding and abetting in a violation” of any of the listed offenses,
including theft. I.C. § 35-45-6-1(e)(14). As explained above, there was
sufficient evidence to support Purvis’s conviction for theft. In other words,
there was sufficient evidence to support the determination that Purvis engaged
in racketeering activity because he committed multiple thefts.
[21] Third, we must consider whether Purvis’s behavior amounted to a “pattern of
racketeering activity,” which is defined as “engaging in at least two (2) incidents
of racketeering activity that have the same or similar intent, result, accomplice,
victim, or method of commission, or that are otherwise interrelated by
distinguishing characteristics that are not isolated incidents. . . .” I.C. § 35-45-6-
1(d). Our Supreme Court recently explained that:
[T]he statute does not apply to sporadic or disconnected criminal
acts. Thus, although failure to prove continuity [of the acts] is
not necessarily fatal to a corrupt business influence conviction—
since it is not a separate element in the statute—the State must
still demonstrate that the criminal incidents were in fact a
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 12 of 19
“pattern” and not merely “isolated” incidents. And evidence of a
degree of continuity or threat of continuity is certainly helpful in
establishing the necessary “pattern.”
Jackson, 50 N.E.3d at 775-76 (footnote omitted).
[22] We find that a reasonable factfinder could conclude that Purvis’s conduct
constituted a pattern of racketeering activity. The thefts had a common
intent—to steal and resell video games. During each theft, Purvis acted with
multiple accomplices. Purvis used the same method to commit each theft—
concealing video games under a pile of clothes in a shopping cart—and stole
from the same victim. Purvis also drove most, if not all, of the group to and
from Walmart in the same vehicle. Considering these common threads, we
conclude that the evidence was sufficient to establish that Purvis’s conduct was
a “pattern of racketeering activity” and not sporadic, unrelated, or isolated
incidents. I.C. § 35-45-6-1(d).7
[23] Purvis relies on Robinson v. State, 56 N.E.3d 652 (Ind. Ct. App. 2016), trans.
denied, in contending that Indiana’s RICO Act does not apply to him. In
Robinson, Robinson and his fiancée visited a local Walmart. The two split up
and Robinson went to the electronics department. He quickly selected a home
security camera and went to the men’s apparel section, leaving soon thereafter
7
We do not mean to suggest, by listing a common intent, result, accomplice, victim, and method of
commission, that the statutory definition of “pattern of racketeering activity” requires that all or even most of
these factors be satisfied.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 13 of 19
without the camera. Id. at 654-55. Robinson and his fiancée then met up and
left the store; several hours later employees found the camera box, which was
missing several parts. Nearly three weeks later, the two returned to the same
Walmart and began repeating the same steps as the previous visit. However,
after a store employee spotted Robinson opening a box of the same type of
security camera, police were called and Robinson was arrested and charged
with several offenses, including Level 5 felony corrupt business influence. A
jury ultimately convicted Robinson of, among other things, corrupt business
influence. Id. at 655.
[24] Robinson appealed and this Court reversed his corrupt business influence
conviction. In reasoning that Indiana’s RICO Act did not apply to Robinson,
this Court observed:
Here, Robinson twice shoplifted or attempted to shoplift similar
items from the same Walmart store. Beyond that, there is no
evidence of any kind of ongoing criminal enterprise. There is no
evidence of Robinson having acquired any property through
“racketeering activity” other than the items he stole or attempted
to steal from Walmart. There is no evidence of extensive
planning or increasing sophistication of Robinson’s crimes.
There is no evidence he enlisted any accomplices to work with
him; the record does not contain any evidence that [Robinson’s
fiancée] was aware of Robinson’s criminal actions, and she
denied having any knowledge of them. Robinson was not any
kind of criminal mastermind, nor did he work for one. The
crimes were isolated and sporadic.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 14 of 19
Id. at 659. The Court also noted that Robinson and his crimes were not the
type of person or activity that the General Assembly intended to be covered by
the RICO Act. Id. at 659-60.
[25] The facts of the present case are clearly distinguishable from Robinson. As
noted earlier, Purvis stole or attempted to steal dozens of games to resell them
for profit—he did not steal a game or two simply to play them at home. Unlike
Robinson, Purvis acted in concert with a cohort of accomplices who were not
only aware of Purvis’s goals but actively assisted him in achieving them. On
every occasion, Purvis was accompanied by at least one other person and
sometimes as many as three others. Purvis and his accomplices also
demonstrated significant planning and sophistication in executing their crimes:
they came to the video game section with a ready-made place to conceal the
games; they hid the games across the store, returning later to retrieve them; they
knew about the keeper boxes and came prepared to remove them; and their
movements demonstrated forethought because the group regularly split up after
concealing the games and took circuitous routes through the store in a manner
that was typical for “shop lifting teams.” Tr. Vol. II p. 84. For these reasons,
we have little difficulty in distinguishing the present case from Robinson or in
finding that Indiana’s RICO Act applies here.8
8
Purvis also contends that his “conduct is not the type of crime that the RICO Act is intended to punish.”
Appellant’s Br. p. 12. To the extent that he relies on Robinson for this proposition, we have discussed why his
situation is distinguishable from that case. Notwithstanding that point, we find that his conduct satisfied the
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 15 of 19
[26] In sum, there was sufficient evidence to establish that Purvis was associated
with an enterprise, and knowingly or intentionally participated in the activities
of that enterprise through a pattern of thefts. In other words, there was
sufficient evidence to support Purvis’s conviction for corrupt business influence.
II. Appropriateness of Sentence
[27] Finally, Purvis argues that the sentence is inappropriate in light of the nature of
the offenses and his character. Indiana Appellate Rule 7(B) provides that this
Court may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. We must “conduct [this] review with
substantial deference and give ‘due consideration’ to the trial court’s decision—
since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and
not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d
1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.
2013)) (internal citations omitted).
[28] Purvis was convicted of three crimes. The sentencing options and outcomes for
each conviction are as follows:
• He was convicted of one Level 5 felony, for which he faced a sentence of
one to six years, with an advisory term of three years. Ind. Code § 35-50-
2-6(b). He received a six-year term, which was enhanced by six years
because of his habitual offender status. I.C. § 35-50-2-8(i)(2) (for a person
clear, unambiguous language of the statute, which is the best indicator of legislative intent. See Day v. State,
57 N.E.3d 809, 812 (Ind. 2016).
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 16 of 19
convicted of a Level 5 or 6 felony, minimum enhancement is two years;
maximum enhancement is six years).
• He was convicted of two Level 6 felonies, for which he faced a sentence
of six months to two and one-half years, with an advisory term of one
year. I.C. § 35-50-2-7(b). For each count, he received a two and one-half
year term, to be served concurrently with the Level 5 conviction.
Thus, the trial court imposed an aggregate, fully-executed sentence of twelve
years imprisonment, with credit for twenty-five days served. Had the trial court
imposed maximum, fully consecutive terms on all convictions, Purvis would
have received an aggregate term of seventeen years.
[29] With respect to the nature of Purvis’s offenses, Purvis actively participated with
a group to steal and resell video games on a large scale. The trial court found
that Purvis was the “leader” of the group, and there is no doubt that he played
an instrumental role in the offenses by providing transportation, aiding in the
concealment of the games, and soliciting and conducting resales. Tr. Vol. II p.
222. Purvis argues that the loss to Walmart was minimal, considering its size
and the fact that it did not seek restitution. However, the size of the store does
not negate the severity of his crime. Further, the evidence demonstrates that
Purvis and his cohort stole or attempted to steal at an alarming rate (at least
$800 worth of video games in a ten-day span) and showed no indication of
slowing down. Many of the games from the earlier Facebook posts still had
Walmart stickers on them and a reasonable factfinder could have inferred,
based on all these circumstances, that the three incidents in May 2015 were not
the only times that Purvis and his accomplices stole from Walmart.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 17 of 19
[30] With respect to Purvis’s character, he concedes that he has multiple prior felony
convictions, including: Class B felony dealing in methamphetamine; Class C
felony burglary; Class D felony theft; Class D felony aiding, inducing, or
causing theft; and Class D felony possession of marijuana; as well as two
misdemeanor convictions and three adjudications as delinquent. Appellant’s
Confidential App. p. 6-9. Despite his considerable criminal history, Purvis
contends that “his record is certainly not the worst of the worst.” Appellant’s
Br. p. 22. However, it is undisputed that, although Purvis received the
maximum sentence on every conviction and the maximum habitual offender
enhancement, he will not serve the maximum possible sentence because his
sentence for each of the two Level 6 counts will be served concurrently to the
Level 5 term. See Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009) (“The
maximum possible sentences are generally most appropriate for the worst
offenders.”). While he also claims to have a close relationship with his family,
he provides no reason why this mitigates any of his behavior. Purvis’s record
reveals that he has failed to take advantage of numerous chances to learn from
his mistakes—including an earlier conviction for felony theft—and his history
demonstrates an unwillingness or an inability to conform his behavior to the
rule of law.
[31] In sum, we do not find the sentence imposed by the trial court to be
inappropriate in light of the nature of the offenses or Purvis’s character.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 18 of 19
[32] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 09A02-1702-CR-454 | November 16, 2017 Page 19 of 19
Kenny Purvis v. State of Indiana
Combined Opinion