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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: BRIAN J. MAY South Bend, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

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

Apr 29 2009, 9:10 am

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

CLERK

No. 71A04-0902-CR-80

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M. Marnocha, Judge Cause No. 71D02-0806-FD-625

April 29, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Sylvester Buckingham appeals his conviction and sentence for class D felony theft. We affirm. Issues Buckingham raises the following issues for review: I. Is the evidence sufficient to sustain his conviction for class D felony theft? Is his sentence inappropriate in light of the nature of the offense and his character? Facts and Procedural History On June 23, 2008, loss prevention officer Michael Ruelas observed Buckingham as he entered a Kroger store, took a plastic bag from a U-Scan machine, and walked over to the deli department. Ruelas then saw Buckingham take a box of fried chicken, place it in the plastic bag, and leave the store without paying for it. Ruelas ran outside and identified himself to Buckingham. When Buckingham saw Ruelas's badge, he turned and ran. Ruelas called the police, and South Bend Police Officer Mark Walsh pursued and apprehended Buckingham. At that time, Buckingham had in his possession the Kroger bag containing the fried chicken. Officer Walsh placed Buckingham in his squad car and took him to the Kroger store, where Ruelas positively identified him as the person who stole the chicken. On June 24, 2008, the State charged Buckingham with class D felony theft. On September 25, 2008, a jury found him guilty as charged. On October 22, 2008, the trial court

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sentenced him to the eighteen-month advisory term. This appeal ensued. Additional facts will be provided as necessary. Discussion and Decision I. Sufficiency of Evidence Buckingham contends that the State failed to present sufficient evidence to sustain his class D felony theft conviction. When reviewing a claim of insufficiency of evidence, we neither reweigh evidence nor judge witness credibility. Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008). Rather, we consider only the evidence and reasonable inferences most favorable to the verdict. Id. We will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. Theft occurs when a person "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." Ind. Code

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