MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 15 2017, 7:04 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Attorney General of Indiana
Cass County Public Defender
Matthew B. MacKenzie
Logansport, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charlene Renier, March 15, 2017
Appellant-Defendant, Court of Appeals Case No.
09A05-1607-CR-1709
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard
Appellee-Plaintiff. Maughmer, Judge
Trial Court Cause No.
09D02-1506-F5-55
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Charlene Renier was convicted of corrupt business
influence as a Level 5 felony and conspiracy to commit theft as a Level 6
felony. Renier appeals her convictions, raising two issues for our review, one of
which we find dispositive: whether the State presented sufficient evidence to
sustain Renier’s conviction for corrupt business influence. Concluding the State
did not present sufficient evidence, we reverse and remand.
Facts and Procedural History
[2] On May 9, 2015, a store employee from a Walmart located in Logansport,
Indiana, discovered an empty cell phone box and assumed the cell phone was
stolen. Asset Protection Manager Brady Herrington reviewed surveillance
footage and observed at least three individuals grouped together in the cell
phone aisle, where one individual opened a cell phone package and concealed a
cell phone under his or her clothing. The individuals, two of whom who were
later identified as Kenny Purvis and Adam Wakefield, were also seen on
surveillance footage stealing several video games. The individuals then exited
the store without paying for the merchandise and drove away in a red truck. 1
1
During opening statements at trial, the State acknowledged Renier was not among the individuals who
were in the Walmart on May 9, 2015.
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[3] On May 15, 2015, store employees notified Herrington that keeper boxes were
discovered empty near the electronics aisle.2 Herrington reviewed surveillance
footage and observed Purvis, Wakefield, and an unidentified individual in the
video game aisle. Although the footage did not capture the individuals stealing
any merchandise, it does show Wakefield and the unidentified individual at the
location where the empty keeper boxes were found. The individuals exited the
parking lot of the store in the same red truck.
[4] On May 19, 2015, Amy Powers, also a member of Walmart’s asset protection
group, spotted Purvis, Wakefield, and a woman, later identified as Renier,
heading toward the store’s electronics department with a shopping cart
containing clothing items. Given her experience, Powers believed the group
would use the clothing to conceal store merchandise and called law
enforcement. Prior to law enforcement arriving, surveillance footage shows
Renier placing video games into the shopping cart. Footage also shows the trio
splitting up, with Wakefield taking control of the shopping cart and Purvis and
Renier looking at DVDs. Soon thereafter, law enforcement arrived and
escorted Purvis, Wakefield, and Renier to the Asset Protection Office. At the
time, Wakefield’s shopping cart held $453 worth of merchandise, including a
copy of the Witcher 3: Wild Hunt video game that had been just released that
2
Keeper boxes are clear boxes that provide security for store merchandise and are designed to deter theft.
Transcript, Volume 1 at 8. Such boxes are often used to protect electronic merchandise, including DVDs and
video games. Id. If an individual attempts to leave a store without paying for merchandise housed in a
keeper box, an alarm sounds. Id.
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day. Wakefield was also found with empty Walmart plastic bags stuffed in his
pockets, which Powers later explained is a common method of stealing from
Walmart. When law enforcement reviewed the surveillance footage, it
determined the trio travelled to Walmart in Purvis’ mother’s red truck. A
subsequent search of the truck uncovered eight copies of the Witcher 3 video
game. Store employees from the Logansport Walmart determined the video
games were from its store.
[5] A subsequent investigation into the matter uncovered that Purvis and Renier
were dating and living together in a residence in Pierceton, Indiana, a small
town located approximately sixty miles northeast of Logansport. At the time,
both Purvis and Renier were members of a Facebook group titled Wabash
County Sell Anything and Everything. Purvis used this Facebook group to sell
new and unopened video games. On May 9, 2015, Purvis posted to the
Facebook group a picture of thirteen unopened video games, noting a sale price
of $30 each.
[6] On May 26, 2016, the State charged Renier with Count I, corrupt business
influence, a Level 5 felony; Count II, conspiracy to commit theft, a Level 6
felony; and Count III, attempted theft, a Level 6 felony. A jury found Renier
guilty as charged. The trial court entered judgment of conviction on Counts I
and II and vacated the finding of guilty on Count III. The trial court sentenced
Renier to an aggregate sentence of four years in the Indiana Department of
Correction, with the entirety of the sentence suspended to probation. This
appeal ensued.
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Discussion and Decision
I. Standard of Review
[7] When reviewing the sufficiency of the evidence to support a conviction, a
reviewing court shall consider only the probative evidence and reasonable
inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). The court neither reweighs the evidence nor reassesses the credibility of
witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, the court
must respect the jury’s exclusive province to weigh conflicting
evidence. Id. Therefore, the court should affirm the conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Drane, 867 N.E.2d at 146-47 (citation omitted).
II. Corrupt Business Influence
[8] Renier contends there is insufficient evidence to sustain her conviction for
corrupt business influence. Specifically, she argues the State did not establish
she engaged in a pattern of racketeering activity. We agree.
[9] Renier was charged and convicted under the following provision of Indiana’s
Racketeer Influence and Corrupt Organizations (“RICO”) Act: “A person . . .
who is employed by or associated with an enterprise, and who knowingly or
intentionally conducts or otherwise participates in the activities of that
enterprise through a pattern of racketeering activity . . . commits corrupt
business influence, a Level 5 felony.” Ind. Code § 35-45-6-2(3). “Enterprise”
can mean a group of people associated in fact. Ind. Code § 35-45-6-1(c)(2). A
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“pattern of racketeering activity” 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.” Ind. Code §
35-45-6-1(d). “‘Racketeering activity’ includes committing, attempting to
commit, conspiring to commit, or aiding and abetting in the commission of
theft, among other crimes.” Robinson v. State, 56 N.E.2d 652, 657 (Ind. Ct.
App. 2016) (quoting Ind. Code § 35-45-6-1(e)(14)), trans. denied. Thus, in order
to convict Renier under Indiana Code section 35-45-6-2(3), the State was
required to prove: 1) Renier associated with a group of people, 2) Renier, as a
part of the group, knowingly or intentionally participated in least two instances
of committing, attempting to commit, conspiring to commit, or aiding and
abetting in the commission of a theft,3 and (3) those incidents 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
events. We now address whether the State submitted evidence sufficient to
establish the second element.4
3
Although we acknowledge Indiana Code section 35-45-6-1(e) lists numerous crimes satisfying this element
of corrupt business influence, we only note it as theft because the State’s theory is Renier participated in
activity relating to thefts.
4
Renier does not argue the evidence is insufficient to establish the first element of the crime, i.e. she
associated with an enterprise.
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[10] At the outset, we note both parties agree Renier’s conduct captured by
surveillance footage at the Logansport Walmart on May 19—regardless of
whether we label her acts as conspiring to commit theft or attempted theft—
supports a finding of one instance of racketeering activity. However, we
struggle to find any evidence in the record establishing Renier knowingly or
intentionally participated in a second instance of racketeering activity. In an
attempt to satisfy this element of the crime, the State points to evidence that
Renier and Purvis lived together; Renier was a member of the Facebook group
Purvis used to sell video games; Purvis and Wakefield previously stole items
from the Logansport Walmart on May 9, 2015, and May 15, 2015; surveillance
footage captured Renier putting multiple video games in Wakefield’s shopping
cart on May 19, 2015; and eight additional copies of Witcher 3, which was
released for the first time on May 19, 2015, were discovered in the red truck in
the parking lot. Stated differently, the State believes the evidence establishes
Renier must have known of Purvis’ scheme, and at some point between the
theft on May 9, 2015, and the attempted theft on May 19, 2015, knowingly or
intentionally participated in a second racketeering activity. The State’s position
is a stretch.
[11] We conclude this evidence, at most, establishes Renier conspired to commit
theft, was associated with an enterprise, and knowingly participated in only one
instance of racketeering activity. The State did not admit any evidence
establishing Renier had knowledge of, or participated in, Purvis’ scheme prior
to May 19, 2015. The facts Renier lived with and dated Purvis and Renier was
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a member of the same Facebook group used by Purvis to sell video games do
not prove she had knowledge of the scheme or that she knowingly or
intentionally participated in any prior thefts or subsequent sales of stolen
merchandise. As to the eight video games discovered in the red truck, the
evidence only establishes those games were from the Logansport Walmart store
and had been released for the first time that day. Thus, this evidence merely
gives rise to a lone reasonable inference: the games must have been taken and
placed into the red truck at some point prior to law enforcement detaining the
trio inside the store. Unlike the other previous thefts, however, there is no
surveillance footage showing who stole these games, or when and how the theft
occurred. Thus, the State’s request we infer from the evidence Renier
participated in a second instance of racketeering activity is unreasonable. We
therefore conclude the State failed to prove Renier knowingly or intentionally
participated in a pattern of racketeering activities.
[12] We also take this opportunity to address our concerns as to the practicality of
the State’s RICO case against Renier. In Robinson, the defendant was charged
with, and convicted of, violating the RICO statute after shoplifting from the
same Walmart store on two separate dates. 56 N.E.3d at 655. On appeal, the
defendant challenged the sufficiency of his RICO conviction and we concluded
the State did not present sufficient evidence to sustain the conviction. Id. at
659. Notwithstanding this conclusion, we also addressed the practical manner
of the State’s utilization of the RICO statute to charge the defendant:
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We simply do not believe the commission of two acts of
shoplifting of this type is the kind of activity our legislature meant
to be covered by our RICO statute. We have previously observed
that our RICO statute “was designed to address the more sinister
forms of corruption and criminal activity . . . RICO is structured
to reach and punish these diabolical operations that are a greater
threat to society than random theft.” Additionally, we have
described the intent behind RICO laws as permitting cumulative
punishment and to “seek eradication of organized crime . . . by
strengthening the legal tools in the evidence-gathering process, by
establishing new penal prohibitions, and by providing enhanced
sanctions and new remedies to deal with the unlawful activities
of those engaged in organized crime.” RICO laws were designed
“to provide new weapons of unprecedented scope for an assault
upon organized crime and its economic roots.”
Id. at 659-60 (alterations in original) (citations, some internal quotation marks,
and footnotes omitted). We therefore further concluded the defendant did not
fit the definition of someone involved with any kind of organized crime and
declined to apply RICO. Id. at 660. Although we acknowledge the evidence in
the record pertaining to Purvis’ role as the enterprise leader may warrant a
RICO case against him and such evidence establishes a criminal scheme unlike
that found in Robinson, we express hesitancy, consistent with Robinson, as to
whether the State’s theory of Renier’s participation in the enterprise, even
assuming it is accurate and supported by the evidence, is the kind of activity our
legislature intended to punish under the RICO statute.
[13] For these reasons, we conclude the State did not present sufficient evidence to
sustain Renier’s conviction for corrupt business influence. On remand, we
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instruct the trial court to vacate Renier’s conviction and sentence for corrupt
business influence.5
Conclusion
[14] The State’s evidence is insufficient to establish Renier participated in a pattern
of racketeering activity and therefore her conviction for corrupt business
influence cannot stand. Accordingly, we reverse and remand with instructions
for the trial court to vacate Renier’s conviction and sentence for corrupt
business influence.
[15] Reversed and remanded.
Kirsch, J., and Barnes, J., concur.
5
Because Renier’s sentence for corrupt business influence cannot stand, we need not address her contention
that her convictions violate Indiana’s prohibition against double jeopardy.
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Charlene Renier v. State of Indiana (mem. dec.)
Combined Opinion