MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 15 2020, 8:43 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Hanson Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mickey D. Davis, May 15, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2811
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1905-F6-639
Tavitas, Judge.
Case Summary
[1] Mickey Davis appeals his conviction for theft, a Level 6 felony. We affirm.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2811 | May 15, 2020 Page 1 of 8
Issue
[2] Davis raises a single issue in his brief, which we restate as whether the evidence
is sufficient to convict Davis for theft.
Facts
[3] In July 2018, renovations were taking place in a classroom at Ivy Tech
Community College’s Fort Wayne North Campus in the Steel Dynamics
Technology Center (“Ivy Tech”). On July 20, 2018, Ivy Tech placed an order
for three fifty-five-inch Samsung televisions worth $445.75 each for a total value
of $1,337.25. Professor Andrew Bell was responsible for the renovation of the
classroom and requested the purchase of the three televisions. The televisions
arrived at Ivy Tech around August 14, 2018, and the televisions were placed in
the hallway outside the doors to the Construction Lab. The televisions were
placed next to an overhead door, which led outside the building through a
loading dock. A normal entry door was located next to the overhead door.
The televisions were not obstructing the hallway, and there was no need to
move them.
[4] On September 17, 2018, Professor Bell discovered that the televisions were
missing. Professor Bell reported the missing equipment to the facilities
manager. Ivy Tech security personnel contacted Ivy Tech’s security system
contractor that maintained the video security system. Two cameras were
located in the hallway where the televisions were stored. One camera faced the
overhead door at the north end of the hallway and included a full view of the
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walk-in door to the Construction Lab and a full view of the overhead door. The
second camera faced southward down the same hallway.
[5] The security camera footage revealed that the televisions were moved from the
view of the cameras by Davis on September 4, 2018. That same day, Davis was
in the Technology Center attending a class. The video footage showed Davis
walk up and down the hallway for thirty minutes, talk on his phone, stand near
the televisions, and then move the televisions out of the view of the security
cameras. Davis testified at the jury trial that he moved the televisions to the
east side of the hallway upon the request of an individual inside the
Construction Lab. After moving the televisions out of the view of the security
cameras, Davis walked back down the hallway and returned to class. Upon
finding that Davis moved the televisions, campus security reported his actions
to law enforcement. The televisions were never recovered.
[6] On May 30, 2019, the State charged Davis with theft, a Level 6 felony. On
September 24, 2019, a jury found Davis guilty of theft. The trial court
sentenced Davis to two years in the Department of Correction. Davis now
appeals his conviction.
Analysis
[7] Davis challenges the sufficiency of the evidence for his theft conviction. When
there is a challenge to the sufficiency of evidence, “[w]e neither reweigh the
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), cert. denied),
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cert. denied. 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. 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)).
[8] Pursuant to Indiana Code Section 35-43-4-2, the State was required to prove
that Davis “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[.]” The offense is a Level 6 felony if the value of the property
“is at least seven hundred fifty dollars ($750) and less than fifty thousand dollars
($50,000).” Ind. Code § 35-43-4-2(a)(1). Davis challenges the sufficiency of the
evidence on both the elements of “unauthorized control” and “intent to
deprive.” 1
1
Davis also argues that the “reasonable theory of innocence” jury instruction used by the trial court was
confusing. Davis, however, does not challenge the use of the instruction or allege reversible error based on
the instruction. Davis presents this argument only in the context of his sufficiency of the evidence argument.
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[9] Circumstantial evidence alone may support a theft conviction. Rogers v. State,
902 N.E.2d 871, 875 (Ind. Ct. App. 2009). The mere presence at the crime
scene with the opportunity to commit a crime is not a sufficient basis on which
to support a conviction. Willis v. State, 27 N.E.3d 1065, 1068 (Ind. 2015).
Presence at the scene, however, in connection with other circumstances tending
to show participation, such as companionship with the one engaged in the
crime, and the course of conduct of the defendant before, during, and after the
offense, may raise a reasonable inference of guilt. Id.
[10] Here, the following circumstances support the theft conviction: (1) Davis was at
Ivy Tech for class when the televisions disappeared; (2) Davis was in the
hallway with the televisions for thirty minutes during the middle of class; (3)
Davis was seen on video footage moving the televisions; (4) Davis’ possession
of the televisions occurred next to a normal-entry door and an overhead door;
and (5) after Davis moved the televisions, they were no longer visible on the
video footage and were subsequently reported missing.
[11] The crux of Davis’ argument is his claim that someone from the Construction
Lab asked him to move the televisions; therefore, he was authorized to move
them and did not have the intent to deprive Ivy Tech of their use. Davis
presents only his testimony to support his argument that he was authorized to
Davis also argues that the jury failed to follow the trial court’s instructions with respect to reasonable doubt,
the presumption of innocence, and circumstantial evidence. That argument, however, is also presented only
in the context of his sufficiency of the evidence argument.
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move the televisions. Professor Bell testified that the televisions were placed in
their original location in the hallway because they were not obstructing
anything and there would be no need to move them. The circumstantial
evidence and the reasonable inferences that can be drawn therefrom supported
the jury’s conclusion that Davis was not authorized to move the televisions. To
ask us to conclude otherwise would require us to reweigh the evidence, which
we cannot do. See Gibson, 51 N.E.3d at 210.
[12] Based on all the evidence presented and reasonable inferences, the evidence was
sufficient to convict Davis of theft. See Meehan v. State, 7 N.E.3d 255, 259 (Ind.
2014) (holding that the evidence was sufficient to sustain the defendant’s
conviction for burglary). The State presented sufficient evidence from which a
reasonable factfinder could find that Davis knowingly or intentionally exerted
unauthorized control over the televisions with the intent to deprive Ivy Tech of
their value or use.
Conclusion
[13] The evidence was sufficient to convict Davis of theft, a Level 6 felony. We
affirm.
[14] Affirmed.
Mathias, J., concurs.
Riley, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Mickey D. Davis, Court of Appeals Case No.
19A-CR-2811
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Riley, Judge, dissenting.
[15] I respectfully dissent from the majority’s opinion to affirm the trial court’s
decision, finding that the State presented sufficient evidence beyond a
reasonable doubt that Davis committed theft. As acknowledged by the
majority, it is well-established that “[m]ere presence at the crime scene with the
opportunity to commit a crime is not a sufficient basis on which to support a
conviction.” Pratt v. State, 744 N.E.2d 434, 436 (Ind. 2001). Instead, presence
at the scene in connection with other circumstances tending to show
participation, such as companionship with the one engaged in the crime, and
the course of conduct of the defendant, before, during, and after the offense,
may raise a reasonable inference of guilt. Maul v. State, 731 N.E.2d 438, 439
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(Ind. 2000). Here, there were no other circumstances presented to the trier of
fact raising a reasonable inference of guilt than Davis’ presence near the
televisions in the hallway.
[16] The evidence reflects that video footage of the scene showed Davis pacing the
corridor for approximately thirty minutes while talking on the phone. He then
moved the televisions out of view of the cameras and in proximity of a normal
entry door and an overhead door. Testimony was received, clarifying that the
overhead door, which led to the exterior was egress only and not ingress, while
the entry door was a “public access door” from which the public “could leave.”
(Tr. p. 66). After moving the televisions, Davis was seen on the video footage,
to come down the hallway and return to the classroom. From this evidence, the
majority draws the inference that Davis was not authorized to move the
televisions. Yet, an equally reasonable inference can be made that if Davis had
indeed availed himself of the opportunity to commit the theft and moved the
televisions outside the building, he could not have returned through the same
hallway as he would not have had any entry into the hallway. Accordingly, I
must conclude that Davis’ mere presence in the hallway, without more, is
insufficient to support his conviction.
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