Allen v. State
| Citation | 987 N.E.2d 549 |
| Decision Date | 17 May 2013 |
| Docket Number | No. 71A03–1209–CR–408.,71A03–1209–CR–408. |
| Parties | Robert V. ALLEN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from the St. Joseph Superior Court; The Honorable John M. Marnocha, Judge; Cause No. 71D02–1201–FD–76.
Neil L. Weisman, South Bend, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
During the afternoon hours of January 20, 2012, Robert V. Allen and Terrence Young took corrugated steel siding and an orange topped electrical box from a warehouse owned by Michael Morris and attempted to sell the items to a nearby scrap yard. Morris had not given Allen or Young permission to take or sell the items in question. Allen was subsequently charged with and convicted of Class D felony theft. At trial, Allen acknowledged that he took the items from Morris's property, but argued that he mistakenly believed that the items in question had been thrown away or abandoned by Morris. On appeal, Allen contends that the State failed to present sufficient evidence at trial to sustain his conviction because the State failed to disprove his mistake of fact defense. Concluding that the State met its burden of disproving Allen's mistake of fact defense, we affirm.
During the afternoon hours of January 20, 2012, Michael Morris was driving by a warehouse he owned when he saw “two gentlemen with a grocery cart loading scrap out of the north end of [his] building.” Tr. p. 89. Morris saw the men load “[s]crap metal and an orange top electrical disconnect switch” in the cart. Tr. pp. 89–90. Morris noticed that the men were pushing the grocery cart full of scrap in the direction of a nearby scrap yard. After observing the men, Morris alerted an employee of the scrap yard that the two men were heading toward the scrap yard and called police.
Morris did not enter the warehouse at this time but rather continued to watch the men until police arrived. Officer Andrew Hines responded to Morris's call; spoke to Morris, who pointed out Allen and Young; and approached the men, who by this time, were “on the scale where they receive their scrap metal at the scrap yard.” Tr. p. 91. Once Officer Hines returned to the warehouse, he and Morris went to the part of the building where Morris had first seen the men loading the scrap metal into the grocery cart. Morris and Officer Hines followed footprints in the snow which went up to and inside Morris's warehouse. Morris noticed that the door to the warehouse had been pried open. Once inside the warehouse, Morris and Officer Hines saw snowy footprints, and Morris noticed that steel siding and an electrical control box were missing. Morris subsequently identified the items in the grocery cart as the items that belonged to him and had come from inside his warehouse. Morris indicated that he “absolutely” did not leave scrap outside of the warehouse. Tr. p. 98. He further indicated that he did not know Allen or Young or give either of them permission to take or sell the items in question.
On January 21, 2012, the State charged Allen with Class D felony theft. 1 The trial court conducted a jury trial on July 12, 2012, after which the jury found Allen guilty as charged. The trial court entered a judgment of conviction and sentenced Allen on August 29, 2012, to eighteen months incarceration with credit for time served. This appeal follows.
Allen contends that the evidence is insufficient to sustain his Class D felony theft conviction. In challenging the sufficiency of the evidence to sustain his theft conviction, Allen argues that the State failed to meet its burden of disproving his mistake of fact defense. Allen argues that the jury should have been required to believe his testimony over that of Morris and Officer Hines because where, as here, there is conflicting evidence that could support two different interpretations, one of which is innocence, the jury is required to adopt the interpretation consistent with innocence. However, contrary to Allen's claim, it is well-settled that in a criminal proceeding, “ ‘[t]he jury is free to believe whomever they wish.” ’ McClendon v. State, 671 N.E.2d 486, 488 (Ind.Ct.App.1996) (quoting Michael v. State, 449 N.E.2d 1094, 1096 (Ind.1983)); see also Kocher v. State, 439 N.E.2d 1344, 1345 (Ind.1982) (); Hammond v. State, 594 N.E.2d 509, 515 (Ind.Ct.App.1992)(providing that the trial court was not obligated to believe Hammond's testimony), trans. denied.
Pursuant to Indiana Code section 35–41–3–7, a mistake of fact defense “is a defense that the person who engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the mistake negates the culpability required for commission of the offense.” Saunders v. State, 848 N.E.2d 1117, 1121 (Ind.Ct.App.2006), trans. denied; see also Nolan v. State, 863 N.E.2d 398, 404 (Ind.Ct.App.2007), trans. denied.
[W]e have held that, “[i]n order for mistake of fact to be a valid defense, three elements must be satisfied: (1) the mistake must be honest and reasonable; (2) the mistake must be about a matter of fact; and (3) the mistake must negate the culpability required to commit the crime.” Giles v. State, 699 N.E.2d 294, 300 (Ind.Ct.App.1998)(citing Potter v. State, 684 N.E.2d 1127, 1135 (Ind.1997)). Regarding the first element, our supreme court has stated that Davis v. State, 265 Ind. 476, 355 N.E.2d 836, 839 (1976).
When the State has made a prima facie case of guilt, the burden is on the defendant to establish an evidentiary predicate of his mistaken belief of fact, which is such that it could create a reasonable doubt in the fact-finder's mind that the defendant had acted with the requisite mental state. Hoskins v. State, 563 N.E.2d 571, 575 (Ind.1990). The State retains the ultimate burden of proving beyond a reasonable doubt every element of the charged crime, including culpability or intent, which would in turn entail proof that there was no reasonably held mistaken belief of fact. Id. at 575–76. In other words, the State retains the ultimate burden of disproving the defense beyond a reasonable doubt. Ringham v. State, 768 N.E.2d 893, 898 (Ind.2002), reh'g denied; Nordstrom v. State, 627 N.E.2d 1380, 1383 (Ind.Ct.App.1994), trans. denied. The State may meet its burden by directly rebutting evidence, by affirmatively showing that the defendant made no such mistake, or by simply relying upon evidence from its case-in-chief. Bergmann v. State, 486 N.E.2d 653, 660 (Ind.Ct.App.1985).
Whether Allen sufficiently raised a mistake of fact defense is a question for the trier of fact. Id. On appeal, we review the issue by the same standard applied when the sufficiency of the evidence to sustain a conviction is challenged. Id.
That is, we do not reweigh the evidence or judge the credibility of witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). We look only to the probative evidence supporting the judgment and the reasonable inferences from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. We will uphold the conviction if there is substantial evidence of probative value to support it. Id.
In the instant matter, the State charged Allen with Class D felony theft. In order to convict Allen of this charge, the State was required to prove beyond a reasonable doubt that Allen “knowingly or intentionally exert[ed] control over [the] property of another person, with [the] intent to deprive the other person of any part of its value or use.” Ind.Code § 35–43–4–2. “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind.Code § 35–41–2–2(b). “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Ind.Code § 35–41–2–2(a). “[T]he requisite intent may be presumed from the voluntary commission of the act.” Mishler v. State, 660 N.E.2d 343, 348 (Ind.Ct.App.1996).
On appeal, Allen does not challenge the jury's determination that he took the items in question from Morris's property. Allen merely claims that the evidence at trial was insufficient to sustain his conviction because he presented evidence that negated the required mental state. Allen testified at trial that on the afternoon of January 20, 2012, he and Young were “walking through the alley, going to look for some scrap, you know,...
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