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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: KIMBERLY S. ROBINSON Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

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

No. 20A04-0608-CR-428

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable James W. Rieckhoff, Judge Cause No. 20D05-0503-FD-110

February 14, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Thomas Lano appeals his conviction for class D felony theft. We affirm his conviction, but vacate and remand the restitution order. Issues Lano raises three issues, which we restate as follows: I. II. III. Whether the evidence was sufficient to support the theft conviction; Whether sufficient evidence of venue was presented; and Whether the $397 restitution order was proper. Facts and Procedural History The facts most favorable to the conviction reveal that on the afternoon of January 25, 2005, Lano drove his 2002 Chevrolet Avalanche to ABC Warehouse ("ABC"). ABC is a store located in the Concord Mall, between Elkhart and Goshen. Dustin Shriver, Lano's friend of approximately one year, rode with him, and the two men entered ABC together. Lano went to the small electronics section, where he asked to look at a blue iPod. Suzanne Wilmore, a sales clerk, assisted Lano by opening the display case, removing the blue iPod, and letting Lano hold it. After Lano examined the iPod, Wilmore asked if he wished to purchase it. Lano replied that he wanted to look at other items and then carried the blue iPod to the television section of the store. Shriver was in a separate part of the store. From then on, both Wilmore and ABC's manager attempted to keep an eye on Lano. Shortly thereafter, Wilmore saw Lano walk down the other side of the store, pass all points of purchase for store merchandise without buying anything, and exit through the front door of ABC. Wilmore, who had seen Lano carrying the iPod in his left hand, down at his side,
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followed after him and yelled at him. Lano's response was to enter his truck and drive away. Meanwhile, Shriver, who had seen his ride departing, attempted to follow and headed toward the front of ABC. However, security detained and questioned him. Detective John Hammel of the Elkhart Police Department was assigned to investigate the theft at ABC. On March 18, 2005, Lano was charged with class D felony theft. The information alleged that Lano "did knowingly exert unauthorized control over the property of [ABC], Elkhart County, Indiana, to-wit: Apple I Pod, [Lano] intending to deprive the owner of the use or value of said property; all of which is contrary to the form of Ind. Code 35-43-42." Appellant's App. at 6. In September 2005, Lano filed a belated notice of alibi in which he alleged that he was not at ABC on the date in question, but rather was working. Id. at 7. At the conclusion of a trial held in June 2006, a jury found Lano guilty as charged. On July 10, 2006, the court held a sentencing hearing and issued a sentence of "18 months IDOC w/credit for -0- days served, Work Release recommended; costs; $397 restitution." Id. at 21. Ultimately, the sheriff sent a letter indicating that Lano was not eligible for work release "due to a prior conviction for Dealing Cocaine as a B Felony. He also has a pending charge and hold out of St. Joseph County at this time." Id. at 22. Lano now appeals. Discussion and Decision I. Incredible Dubiosity In challenging the sufficiency of the evidence, Lano attempts to invoke the incredible dubiosity rule. Specifically, he contends that the testimony of Shriver and Wilmore was "incredibly dubious, convoluted and inherently improbable." Appellant's Br. at 7. He also argues that the State presented no evidence that an iPod was missing from ABC's inventory.
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In resolving this issue, we initially observe that: When reviewing a sufficiency of the evidence claim, we consider only the evidence most favorable to the judgment and all reasonable inferences to be drawn from that evidence. We neither reweigh the evidence nor judge the credibility of the witnesses. We will affirm a conviction upon finding substantial evidence of probative value from which the jury could find the defendant guilty beyond a reasonable doubt. Green v. State, 756 N.E.2d 496, 497 (Ind. 2001) (citations omitted). The testimony of a single eyewitness to a crime is sufficient to sustain a conviction. See Emerson v. State, 724 N.E.2d 605, 609-10 (Ind. 2000). Inconsistencies in testimony are factual issues for the jury to resolve. See Miller v. State, 770 N.E.2d 763, 774 (Ind. 2002). "The `incredible dubiosity' doctrine applies where a sole witness presents inherently contradictory testimony that is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the defendant's guilt." Thompson v. State, 765 N.E.2d 1273, 1274 (Ind. 2002). Reversal under this rule is rare, and the testimony at issue must be "so incredibly dubious or inherently improbable that no reasonable person could believe it." Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The incredible dubiosity rule does not apply here because more than one witness testified and provided corroborating evidence, and there was no evidence of coercion. Moreover, contrary to Lano's argument, there was evidence that an iPod was stolen. Indeed, ABC sales clerk Wilmore had "no doubt" that Lano took the iPod from ABC without paying for it on the afternoon in question. Tr. at 65. Shriver's testimony corroborated Wilmore's and filled in some of the blanks. Shriver indicated that he and Lano had been at ABC that day, that Lano was looking in the small, handheld electronics section, that a sales person was

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talking with Lano and removed an iPod for Lano, that Lano left ABC without paying for anything -- and without his passenger, and that Lano called him after the incident. As for any minor inconsistencies between the witnesses' testimony and prior statements, these are relevant only to the weight of testimony and do not render it inherently improbable such that no reasonable person could believe it. See Williams v. State, 741 N.E.2d 1209, 1213 (Ind. 2001) (holding that victim's identification of attacker was not inherently incredible where victim was initially unable to identify attacker in photo array on night of crime); see also Corbett v. State, 764 N.E.2d 622, 626 (Ind. 2003) (holding that inconsistencies between witness's statement to police and trial testimony do not render testimony inherently contradictory). Accordingly, we conclude that the State presented sufficient evidence of probative value from which the jury could find that Lano knowingly exerted unauthorized control over the iPod with intent to deprive ABC of its value or use. See Ind. Code

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