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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: RACHAEL S. PUENTE Withered Burns & Persin, LLP Lafayette, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MICHELLE BUMGARNER Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Sep 29 2011, 9:46 am

IN THE COURT OF APPEALS OF INDIANA
BRIAN C. SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 79A02-1010-CR-1140

APPEAL FROM THE TIPPECANOE CIRCUIT COURT The Honorable Donald L. Daniel, Judge Cause No. 79C01-1001-FA-2

September 29, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Brian C. Smith appeals his conviction for theft, as a Class C felony, following a jury trial.1 Smith presents a single issue for review, namely, whether the evidence is sufficient to support his conviction. We affirm. FACTS AND PROCEDURAL HISTORY In 2009, Smith lived in Lafayette. He was friends with co-worker Latroy Maxwell and with Maxwell's brother Quentin Shotwell. In the fall of 2009, Smith became

acquainted with Heidi Mass, who also lived in Lafayette. Mass shared an apartment with Charles Helvie. Smith visited Mass in her apartment three or four times a week after they first became acquainted. On December 28, 2009, Smith, Maxwell, and Shotwell went to Mass' apartment to collect on a $300 debt owed to Smith. Smith used a key to enter the apartment, but no one was home. Smith sat on the couch to watch television. Maxwell and Shotwell collected two laptops, a Blu-Ray DVD player, and some DVDs and CDs from the apartment, and then all three men left the apartment for Smith's car. Maxwell and Shotwell loaded the stolen items into Smith's car and trunk, and then the three men returned to the apartment. Ten minutes later, Mass and Helvie arrived at the apartment. Smith demanded the return of his money, but Mass did not have it. An altercation ensued in which Mass and Helvie sustained serious injuries. Smith, Maxwell, and Shotwell then left the apartment.
1

Smith was also convicted of battery resulting in serious bodily injury, as a Class C felony. He does not appeal that conviction.

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Smith drove them to Maxwell's apartment, where Maxwell and Shotwell unloaded the items they had taken. The State charged Smith with Count 1, burglary, as a Class A felony; Count 2, battery resulting in serious bodily injury to Helvie, as a Class C felony; Count 3, battery resulting in serious bodily injury to Mass, as a Class C felony; Count 4, battery to Helvie by a deadly weapon, as a Class C felony; Count 5, battery to Mass by a deadly weapon, as a Class C felony; Count 6, theft, as a Class D felony; count 7, robbery of Helvie by a deadly weapon, as a Class B felony; Count 8, robbery of Mass by a deadly weapon, as a Class B felony; Count 9, robbery of Helvie resulting in serious bodily injury, as a Class A felony; and Count 10, robbery of Mass resulting in serious bodily injury, as a Class A felony. Smith, who was to be tried with Shotwell, filed a motion to sever, which the trial court denied.2 A four-day jury trial commenced August 3, 2010. At the close of the State's evidence, the trial court granted Smith's motion for judgment on the evidence as to Counts 8 and 10. The jury later returned verdicts finding Smith guilty of Count 3, battery resulting in serious bodily injury to Mass, and theft, but found him not guilty on all other charges. The trial court sentenced Smith to six years for robbery and two years for theft, to be served consecutively. Smith now appeals his theft conviction. DISCUSSION AND DECISION Smith contends that the evidence is insufficient to support his conviction for theft. When the sufficiency of the evidence to support a conviction is challenged, we neither

2

Maxwell pleaded guilty to robbery of Helvie with a deadly weapon.

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reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of the factfinder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial court's ruling. Id. at 906. To prove theft, as a Class D felony, the State is required to show beyond a reasonable doubt that a defendant knowingly or intentionally exerted unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use. Ind. Code

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