FILED
Feb 11 2019, 9:12 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary J. Stock Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Henry A. Flores
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Crystal G. Smith, February 11, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1635
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Stephenie LeMay-
Appellee-Plaintiff. Luken, Judge.
Trial Court Cause No.
32D05-1708-F6-778
Tavitas, Judge.
Case Summary
[1] Crystal Gayle Smith appeals her conviction, following a jury trial, for theft, a
Level 6 felony. We affirm.
Court of Appeals of Indiana |Opinion 18A-CR-1635 | February 11, 2019 Page 1 of 7
Issue
[2] Smith raises one issue on appeal, which we restate as whether sufficient
evidence exists to support her conviction.
Facts
[3] Champion Chevrolet (“Champion”) is an auto dealership in Avon, Indiana.
Champion’s premises are monitored by video surveillance. When Champion’s
customers buy new tires, Champion disposes of the customers’ old tires. As a
matter of “company policy,” Champion does not give away or resell the old
tires because:
people typically replace their tires when their old tires are unsafe
and shouldn’t be used anymore, so, . . . [Champion] can’t give
them away to people. Otherwise, [Champion would] be liable if .
. . [people] took that unsafe tire and had a blowout on the
highway or whatever. [The used tires are] just not safe for people
to be driving on.
Tr. Vol. II p. 59; see id. at 64-65 (“. . .[I]t’s company policy that we don’t give
people permission to take those tires . . . it would put [Champion] at
tremendous liability if someone were to take that tire and put it on their vehicle
or sell it to someone who would then put it on a vehicle[.]”).
[4] Champion routinely stores used tires in a fenced “dumpster area and . . . scrap
area” that is “typically locked.” Id. at 58. The enclosure bears a warning sign
“that says . . . . [y]ou’re being watched[.]” Id. The used tires remain within the
enclosure until they are retrieved by a contractor that Champion pays to
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retrieve, dispose of, and/or recycle them. Champion undertakes this disposal
procedure as a prophylactic measure to prevent legal exposure. Champion does
not sell the used tires or collect a recycling reimbursement for the used tires.
[5] On August 1, 2017, the enclosure was inadvertently left unlocked. At
approximately 9:50 p.m., Smith and an accomplice entered Champion’s
premises, entered the enclosure, removed several used tires, loaded them into a
vehicle, and drove away. A Champion employee, who was monitoring the
surveillance system, observed Smith and her accomplice and called the police.
[6] Officer Ryan Grismore of the Avon Police Department was traveling
westbound on US 36 in the general vicinity of Champion when he heard a
dispatch related to Champion’s stolen tires; the dispatch included a description
of the suspect vehicle. Officer Grismore subsequently observed an eastbound
vehicle that matched the description of the suspect vehicle. Officer Grismore
followed the vehicle, “ensured [he] had the correct vehicle,” and initiated a
traffic stop. Id. at 71.
[7] Smith and her accomplice were in the vehicle. Aided by backup officers,
Officer Grismore escorted Smith and her accomplice to Champion’s premises,
where they returned the used tires. The police advised Smith and her
accomplice that criminal summonses were forthcoming.
[8] On or about August 4, 2017, the State charged Smith with theft, a Class A
misdemeanor. Smith had a prior, unrelated conviction for theft. The trial court
conducted a jury trial on May 14, 2018. Champion’s general sales manager,
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Mike Mills, testified to the foregoing facts. After the State presented its case-in
chief, Smith moved for a directed verdict on the basis that the State had failed
to prove a material element – “that there was any value or use of the [tires].”
Id. at 80. The State countered that Mills had testified “about the liability
concerns” and that “it’s that future possibility of the liability which is the value
in this case.” Id. at 81. The trial court denied Smith’s motion for directed
verdict.
[9] At the close of the evidence, the jury returned a guilty verdict for theft, a Class
A misdemeanor. Smith subsequently admitted that she had a prior unrelated
theft conviction that elevated the charge; and the trial court entered an order of
conviction for theft, a Level 6 felony. The trial court imposed no jail time and
assessed a fine and costs. Smith now appeals.
Analysis
[10] Smith challenges the sufficiency of the evidence to support her conviction.
When there is a challenge to the sufficiency of the evidence, “[w]e neither
reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,
210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985)). Instead,
“we ‘consider only that evidence most favorable to the judgment together with
all reasonable inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d
at 84). “We will affirm the judgment if it is supported by ‘substantial evidence
of probative value even if there is some conflict in that evidence.’” Id. (quoting
Bieghler, 481 N.E.2d at 84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind.
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2018) (holding that, even though there was conflicting evidence, it was “beside
the point” because that argument “misapprehend[s] our limited role as a
reviewing court”). Further, “[w]e will affirm the conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007)).
[11] To convict Smith of theft, a Class A misdemeanor, the State had to prove that
Smith “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[.]” Ind. Code § 35-43-4-2. Smith does not dispute that she exerted
unauthorized control over Champion’s property. Rather, Smith contends that
the tires were not “property” within the meaning of the statute because the State
failed to establish that the tires were of any value to Champion.
[12] Although Smith cites Long v. Dilling Mech. Contrs., Inc., 705 N.E.2d 1022 (Ind.
Ct. App. 1999), trans. denied, in her brief, her reliance on Long is misplaced.
Smith, inexplicably, asserts both that: (1) “Long . . . shows that abandoned
property has no value to the one who abandons it and therefore cannot be the
subject of a theft”; and (2) Smith “is not arguing that [Champion’s] tires were
abandoned.” Appellant’s Br. p. 5.
[13] Long is inapposite here and does not aid our review. In Long, Long – who was a
union organizer – took trash bags from the Dilling company’s dumpster,
“hoping [the bags] would contain records revealing the names and phone
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numbers of Dilling employees, with whom Long wished to discuss collective
bargaining.” Long, 705 N.E.2d at 1023. Dilling filed a complaint for damages
alleging that Long and his affiliated trade unions (collectively, “Long”) had
committed theft, among other offenses. Because Dilling had placed the trash
bags into a dumpster in an area that was open to public access, a panel of this
court deemed the trash bags to be abandoned property in which Dilling no
longer had a property right. Long, 705 N.E.2d at 1026. Accordingly, we
concluded that the trial court had erred in denying Long’s “[m]otion to dismiss
and/or [m]otion for summary judgment[.]” Id. at 1027. Here, Champion’s
tires were stored in an enclosure that was typically locked, monitored by a
video surveillance system, and overseen by Champion’s staff. Champion’s tires
were not abandoned property, which Smith concedes.
[14] The crux of Smith’s argument is her claim that, by stockpiling its used tires for
disposal, Champion demonstrated that it regarded the used tires as trash and as
having no value to Champion. We disagree. Mike Mills testified that
Champion stored the used tires in an enclosure that was typically locked,
labeled with a warning sign, monitored by video surveillance, and overseen by
Champion’s personnel. Mills testified further that Champion had a company
policy that was specifically aimed at preventing unauthorized reuse of the used
tires, because reuse of “unsafe [tires that] shouldn’t be used anymore” puts
Champion at risk of “tremendous liability[.]” Tr. Vol. II pp. 59, 64. The threat
of unauthorized sale of used tires is a liability to Champion. The fact that these
used tires could be sold by an unauthorized seller, and that they were taken
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without permission, points to the logical inference that the tires retain some
value after they are removed from vehicles.
[15] In light of Mills’ testimony and reasonable inferences that can be drawn
therefrom, we cannot say that “no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt.” Love, 73 N.E.3d at
696. We regard Smith’s argument that the used tires were “not property
capable of being stolen” as an invitation that we should reweigh the evidence,
which we cannot do. See Gibson, 51 N.E.3d at 210. The State presented
sufficient evidence that the used tires were items of value to Champion. The
State also presented sufficient evidence from which a reasonable factfinder
could find that Smith knowingly or intentionally, and with the intent to deprive
Champion of their value or use, exerted unauthorized control over used tires
that Champion – as a prophylactic measure – stored on its premises until the
used tires could be disposed of properly.
Conclusion
[16] The State presented sufficient evidence for the jury to convict Smith of theft, a
Class A misdemeanor, which conviction was elevated to a Level 6 felony
because Smith had a prior, unrelated conviction for theft. We affirm.
[17] Affirmed.
[18] Baker, J., and May, J., concur.
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