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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.

FILED
Dec 29 2009, 9:42 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: RUTH JOHNSON Marion County Public Defender Indianapolis, Indiana MARY E. SPEARS Gilroy & Kammen Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General NICOLE DONGIEUX WIGGINS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
HERMAN RUSSELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0902-CR-97

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Reuben B. Hill, Judge Cause No. 49F18-0807-FD-173429

December 29, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Herman Russell appeals his conviction of theft1 as a Class D felony following a bench trial. Russell raises four issues, one of which we find dispositive and restate as: whether the States evidence of "unauthorized control" was sufficient to sustain Russells theft conviction. We reverse.2 FACTS AND PROCEDURAL HISTORY In July 2008, Brooke Downs ("Downs") worked as a co-manager of an Indianapolis-area Kroger grocery store. As co-manager, Downss responsibilities

included, "[m]aking sure that the registers are taken care of, making sure that people are paying for their purchases, . . . like walking the store making sure things are secure." Tr. at 11. On July 22, 2008, Downs was standing in the vestibule of Krogers entryway and saw a man, later identified as Russell, exit the store and enter the vestibule carrying a stack of DVDs. The vestibule was beyond all points of purchase, and Downs asked Russell to stop and show a receipt of purchase for the DVDs. In response, Russell "shouldered [Downs] and ran out the door." Id. at 12. Hearing Downss call for help, an employee outside the store grabbed Russell and pushed him to the ground, causing Russell to drop the DVDs. Officer Tracy Dobbs of the Indianapolis Metropolitan Police Department responded to Krogers report of "a shoplifter who was resisting." Id. at 22. At the scene, Officer Dobbs handcuffed Russell to secure the situation, asked about the

1

See Ind. Code

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