MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
Nov 30 2016, 6:00 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
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew C. Elzey, Jr., November 30, 2016
Appellant-Defendant, Court of Appeals Case No.
35A02-1604-CR-783
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jeffrey R.
Appellee-Plaintiff. Heffelfinger, Judge
Trial Court Cause No.
35D01-1509-F6-212
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Matthew Elzey, Jr., was convicted of theft as a Level 6
felony due to a prior unrelated conviction. The trial court sentenced Elzey to
two and one-half years in prison. Elzey raises three issues on appeal: 1)
whether the evidence is sufficient to support Elzey’s conviction; 2) whether the
trial court abused its discretion in sentencing Elzey; and 3) whether Elzey’s
sentence is inappropriate in light of the nature of the offense and his character.
Concluding the evidence is sufficient to support Elzey’s conviction, the trial
court did not abuse its discretion in sentencing Elzey, and Elzey’s sentence is
not inappropriate, we affirm.
Facts and Procedural History
[2] On September 4, 2015, Rebecca Powell, an Asset Protection Manager at the
Wal-Mart in Huntington, Indiana, observed a man she later identified as Elzey
moving around nervously in the electronics section of the store. Elzey was in
an area of the store that Powell knew to be a high theft area. Powell observed
Elzey take from a shelf a package containing an FM transmitter that converts
music from a device through a car radio. Soon after, a woman joined Elzey in
the electronics section and the couple moved into the toy section. The woman
was later identified as Brooke Roark, Elzey’s girlfriend at the time.
[3] Next, Powell observed Elzey use a key to break the package seal and remove
the contents, discarding the empty packaging on a nearby shelf. Powell
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continued to monitor Elzey and Roark as they moved to the clearance section,
where Powell witnessed Elzey slip the merchandise into his pocket. Powell
then contacted Jim Clark, the Wal-Mart Store Manager, while Elzey and Roark
moved to the pharmacy section of the store. Elzey and Roark did not make any
purchases, but rather proceeded to move past the cash registers, through the
store metal detectors, and to the store’s automatic doors, which opened for
them to step outside. Immediately before Elzey and Roark could exit the
building, Powell and Clark stopped Elzey, confronted him with their
observations, and requested he return the merchandise to them. Elzey
informed Powell and Clark he left the merchandise on the shelf with the
packaging.
[4] Elzey turned around and went back into the store leading Powell and Clark to
the electronics section where he claimed to have placed the merchandise.
Powell disputed Elzey ever went back to the electronics section, and Elzey then
stated the merchandise was in the clearance aisle. Powell asked Elzey to return
the merchandise several times during the group’s tour of the store. Next, Elzey
led the group to the vacuum aisle, where Powell retrieved the empty packaging
and once again demanded Elzey return the merchandise. In response, Elzey
stated, “I put it over here,” transcript at 70, and hurried around the corner
toward another aisle that he had not previously occupied. Following Elzey
around the corner, Powell observed Elzey pull the merchandise from his
pocket, and Powell demanded Elzey hand it to her. Next, Powell took Elzey to
the store office and called the Huntington Police Department. Once in the
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office, Elzey told Powell he would cooperate and that he did not know why he
removed the item from its package and put it in his pocket.
[5] The State charged Elzey with theft, a Class A misdemeanor enhanced to a
Level 6 felony due to a prior conviction for theft. On March 3, 2016, the State
presented its case against Elzey to a jury. After the jury found Elzey guilty of
Class A misdemeanor theft, Elzey admitted he had a prior conviction for theft,
and the trial court entered judgment of conviction as a Level 6 felony. The trial
court subsequently sentenced Elzey to two and one-half years in the
Department of Correction. Elzey now appeals his conviction and sentence.
Discussion and Decision
I. Sufficiency of the Evidence
[6] “When reviewing a claim of insufficient evidence, we neither reweigh the
evidence nor assess witness credibility, considering instead only the evidence
supporting the conviction and any reasonable inferences that the factfinder may
have drawn from that evidence.” Gonzalez v. State, 908 N.E.2d 338, 340 (Ind.
Ct. App. 2009). “Looking to the evidence and reasonable inferences drawn
therefrom that support the verdict, we will affirm the conviction if there is
probative evidence from which a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.
1997).
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[7] Elzey contends the State failed to present sufficient evidence to support his
conviction, arguing he did not leave the store premises and did not deprive
Wal-Mart of the value or use of the confiscated merchandise. Elzey was
charged with and convicted of theft under Indiana Code section 35-43-4-
2(a)(1)(C)(i), which states:
(a) A person who knowingly or intentionally exerts unauthorized
control over property of another person, with intent to deprive
the other person of any part of its value or use, commits theft, a
Class A misdemeanor. However, the offense is:
(1) a Level 6 felony if:
***
(C) the person has a prior unrelated conviction for:
(i) theft under this section . . . .
Further, Indiana Code section 35-43-4-4(c) provides:
(c) Evidence that a person:
(1) concealed property displayed or offered for sale or hire,
and
(2) removed the property from any place within the business
premises at which it was displayed or offered to a point
beyond that at which payment should be made;
constitutes prima facie evidence of intent to deprive the owner of
the property of a part of its value and that the person exerted
unauthorized control over the property.
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[8] As the State points out, the statute does not require evidence showing Elzey
actually deprived Wal-Mart of value, but rather only evidence showing Elzey
had the intent to deprive Wal-Mart of value or use through his unauthorized
control over the merchandise. See Brief of Appellee at 12. In this instance, the
circumstances surrounding Elzey’s conduct suggests he intended to remove the
merchandise from the store without paying for it.
[9] Elzey’s intent was on display from the moment Powell began observing him.
Powell noticed Elzey acting nervous in an area of the store that was notorious
for attracting thieves. Powell watched Elzey as he selected electronic
merchandise, carried the package to a different section of the store, ripped open
the packaging, discarded the packaging, and placed the merchandise in his left
pocket. Elzey and Roark then walked past the cash registers, past the store
metal detectors, and towards the exit where Powell and Clark stopped them.
Elzey made no purchases at any time. Only after Powell and Clark stopped
Elzey did he lead the group back into the store. Once Elzey led the group
through several aisles without producing the merchandise, he entered a new
aisle he had not previously occupied and attempted to discretely pull the
merchandise from his pocket and place it on a shelf as if he had previously left it
there. In the Wal-Mart office, Elzey confessed he did not know why he did it.
[10] The fact that Elzey did not make it through the store’s exterior doors is
irrelevant because he moved past the point where payment should have been
made. In Chambliss v. State, 746 N.E.2d 73 (Ind. 2001), the defendant
challenged the sufficiency of evidence supporting his theft conviction, arguing
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he had neither exited the store nor passed the cash registers and therefore he did
not exhibit an intent to commit theft. The Indiana Supreme Court disagreed,
holding the jury could reasonably infer the defendant intended to exercise
unauthorized control of the property because the defendant concealed the
merchandise under his jacket and removed it only after being confronted by a
store employee. Id. at 78; see also Hartman v. State, 164 Ind. App. 356, 359, 328
N.E.2d 445, 447 (1975) (holding there was sufficient evidence to give rise to an
inference the defendant exerted unauthorized control for purpose of committing
theft when store employees caught defendant with merchandise concealed
under his jacket a few feet from the store doors). As in Chambliss and Hartman,
Elzey concealed the merchandise in his pocket and advanced past the point of
payment to the store’s doors, evidence which we conclude is sufficient to show
Elzey intended to deprive Wal-Mart of the value of its merchandise through
unauthorized control.
II. Abuse of Discretion in Sentencing
[11] Next, Elzey argues that the trial court abused its discretion in sentencing him by
failing to provide a sentencing statement.
[12] Sentencing decisions fall within the discretion of the trial court and may only be
reviewed for abuse of such discretion. Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of
discretion occurs if the decision is ‘clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
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deductions to be drawn therefrom.’” Id. (citation omitted). Indiana law
requires the trial court to give reasons for the sentence it imposes for a felony
conviction when it finds mitigating or aggravating circumstances are present.
Ind. Code § 35-38-1-3(3). The sentencing statement “must include a reasonably
detailed recitation of the trial court’s reasons for imposing a particular
sentence.” Anglemyer, 868 N.E.2d at 490.
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law.
Id. at 490-91. “A trial court’s consideration of factors may be evidenced in
either the written order or in an oral sentencing statement.” Anderson v. State,
989 N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied.
[13] Although there is no written sentencing order detailing the trial court’s reasons
for imposing a two and one-half year sentence here, the trial court’s oral
statements in sentencing Elzey suffice. At the sentencing hearing, the trial court
reviewed Elzey’s presentence investigation report, asked Elzey whether it was
correct, and then heard arguments about what sentence should be imposed.
Elzey did not specifically advance any mitigating circumstances for the trial
court’s consideration, other than to note he believed his drug addiction had
influenced his decision-making and he had a pending petition to revoke
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probation in another case which would expose him to up to two years of
incarceration. The State noted Elzey’s age—twenty-two at the time of
sentencing—and his criminal history and response to prior leniency. Following
the arguments, the trial court identified Elzey’s criminal history as the reason
for imposing a two and one-half year sentence when it stated, “The defendant’s
criminal history indicates he had two (2) adjudications as a juvenile, two (2)
prior felony offenses, three (3) petitions to revoke. He was on probation for
robbery at the time this was committed.” Tr. at 139. A defendant’s criminal
history is a legitimate aggravating circumstance, see Phillips v. State, 869 N.E.2d
512, 515 (Ind. Ct. App. 2007), and the trial court’s oral statement provided
reasonably detailed reasons supported by the record for imposing the sentence it
chose. Such a statement provides an adequate basis for review of the trial
court’s reasoning in sentencing Elzey and was not an abuse of discretion.
III. Inappropriate Sentence
[14] Elzey also challenges his sentence under Indiana Appellate Rule 7(B), arguing
his sentence itself is inappropriate. Appellate Rule 7(B) provides a “Court may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” “The principal role of
appellate review should be to attempt to leaven the outliers, and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The appropriateness of a
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sentence turns on the culpability of the defendant, the severity of the crime, the
damage done to others, and an array of other factors that might be related to the
circumstances giving rise to the sentence. Id. at 1224. “We should concentrate
less on comparing the facts of this case to others, whether real or hypothetical,
and more on focusing on the nature, extent, and depravity of the offense for
which the defendant is being sentenced, and what it reveals about the
defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)
(quotation omitted), trans. denied. “The appellant bears the burden of
demonstrating his sentence is inappropriate.” Wells v. State, 2 N.E.3d 123, 131
(Ind. Ct. App. 2014), trans. denied.
[15] First, we consider the nature of Elzey’s offense. When reviewing the nature of
the offense, a relevant factor is whether there is anything more or less egregious
about the offense which distinguishes it from a “typical” offense accounted for
by the advisory sentence set by the legislature. Id. The sentencing range for a
Level 6 felony is six months to two and one-half years, with the advisory
sentence being one year. Ind. Code § 35-50-2-7(b). Here, Elzey stole a piece of
store merchandise by destroying the packaging and attempting to conceal the
item in his pocket. When confronted by Powell and Clark, Elzey lied to the
store personnel and attempted to further conceal his criminal act by leading the
group on a wild goose chase throughout the store. Elzey also attempted to
covertly dump the merchandise. Although Elzey was compliant when taken to
the store office, he attempted to deceive the store’s personnel numerous times
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before admitting his fault. However, the nature of this offense is not overtly
better or worse than a “typical” theft offense.
[16] Next, we consider the character of the offender. When considering the
character of the offender, one relevant factor is the defendant's criminal history.
Wells, 2 N.E.3d at 131. It is clear from Elzey’s criminal history that he was no
stranger to criminal activity. Elzey was adjudicated a juvenile delinquent in
2010 for truancy and incorrigibility. In the same year, Elzey was adjudicated a
delinquent for committing an act equivalent to an adult battery charge. Due to
his juvenile adjudications, he was placed on probation until the age of twenty-
one. In 2012, when he was eighteen, Elzey committed theft, a Class D felony;
he was released from probation unsatisfactorily due to committing a new
criminal offense. In the same year, Elzey was convicted of robbery, a Class C
felony, and sentenced to five years’ imprisonment in the Department of
Correction with three years suspended to probation. His probation was revoked
in 2014 and he was ordered to serve one year of his previously-suspended
sentence. In 2015, which still on probation for robbery, he committed the
present offense. Elzey’s actions expose his disregard for the law and his failure
to reform despite any lenient measures previously extended to him. Also, Elzey
developed this criminal history over a relatively short period through his adult
life, as he was only twenty-two years of age when sentenced for this offense.
Given Elzey’s criminal history, coupled with the fact that previous leniency has
had no effect in curbing his criminal behavior, we conclude a two and one-half
year sentence is not inappropriate.
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Conclusion
[17] There was sufficient evidence to support Elzey’s theft conviction. As to his
sentence, the trial court did not abuse its discretion in sentencing Elzey to two
and one-half years, and the sentence is not inappropriate given the nature of the
offense and the character of the offender. Therefore, we affirm Elzey’s
conviction and sentence.
[18] Affirmed.
Mathias, J., and Brown, J., concur.
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Matthew C. Elzey, Jr. v. State of Indiana (mem. dec.)
Combined Opinion