Batarseh v. State

• Citation: 622 N.E.2d 192
• Decision Date: 13 October 1993
• Docket Number: No. 45A03-9211-CR-364,45A03-9211-CR-364
• Parties: Marwan BATARSEH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 192

622 N.E.2d 192

Marwan BATARSEH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A03-9211-CR-364.

Court of Appeals of Indiana Third District.

Oct. 13, 1993.

Rehearing Denied Nov. 30, 1993.

Transfer Denied Jan. 12, 1994.

Ray L. Szarmach, Szarmach and Fernandez, Hammond, for appellant-defendant.

Pamela Carter, Atty. Gen., Deana M. McIntire, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

HOFFMAN, Judge.

Appellant-defendant Marwan Batarseh appeals from his convictions for theft, a Class D felony, and perjury, a Class D felony.

The facts ¹ most favorable to the verdict disclose that in late March of 1991, Milton Thaxton, an employee of American Juice, Inc., (A.J.) located in Gary, Indiana, approached the manager of Batarseh's convenience store and offered to sell him some orange juice. At some point, the manager informed Batarseh of Thaxton's offer which he accepted. Thaxton told Batarseh that he could get as much orange juice as he wanted but that it would be stolen juice. Thaxton also informed Batarseh that the best time to remove the orange juice from A.J. was Sunday when it was closed.

There were four thefts at A.J., all on Sunday: the first on April 21, 1991; the second on April 28, 1991; the third on May 5, 1991; and the fourth on May 12, 1991. Batarseh provided Thaxton with two vans and a driver so that Thaxton could obtain a larger quantity of orange juice than would be possible by merely using a car. Also, for each of the thefts, Thaxton was assisted by Bruce Bailey, a security guard working at A.J. who allowed Thaxton access to the premises.

The April 21, 1991 and the April 28, 1991 thefts were similar. On each occasion, Thaxton, using Batarseh's vans and driver, delivered four pallets of ten-ounce bottles of orange juice to Batarseh's store. Both times, Batarseh paid Thaxton for the stolen juice.

The next theft occurred on May 5, 1991. So that an even larger quantity could be delivered, Batarseh rented a Ryder truck for Thaxton to use. However, Thaxton encountered problems at A.J. and was only able to supply Batarseh with three pallets of juice on that date. Again, Batarseh paid Thaxton for the juice.

As noted above, the last theft occurred on May 12, 1991. Like the first and second thefts, Thaxton picked up one of Batarseh's vans and the driver and drove to A.J. There, they removed two pallets of orange juice and placed them in the van. The van was then dropped off at Batarseh's store for unloading. Next, Thaxton took Batarseh's second van back to A.J. where the men spotted an unfamiliar car parked in the lot. They ignored the car and removed the orange juice as planned. In this car was an undercover security guard hired by A.J. to investigate the recurrent thefts. The security guard notified the police who attempted to intercept the van on its way back to Batarseh's store. A police chase ensued. Thaxton escaped and was able to alert the manager at Batarseh's store as to what had happened.

After arresting Thaxton and the driver, the police went to Batarseh's store where they found the first van, already unloaded, and the pallets of stolen juice on the floor in the store. Later, Batarseh arrived at the store at which point he was arrested. The orange juice taken from A.J. on May 12, 1991, was returned to A.J. that night.

In November of 1991, Thaxton accompanied Batarseh to the office of Batarseh's attorney. There, Thaxton signed an affidavit which stated in summary that Batarseh had no involvement in the above thefts and that he did not know he was buying stolen juice. Later it was revealed that these statements were false and that Thaxton agreed to sign the affidavit because he thought Batarseh would take care of him and his family financially.

Based on this evidence, a jury convicted Batarseh of theft and perjury, and the court imposed sentence. Batarseh now appeals. The issues presented for our review, as restated, are:

(1) whether the evidence is sufficient to sustain his convictions;

(2) whether his convictions should be set aside due to jury inattentiveness;

(3) whether the trial court erred in admitting into evidence computer generated spreadsheets reflecting A.J.'s total loss for April and May 1991; and

(4) whether the trial court committed error in its order of restitution.

Batarseh contends that the evidence is insufficient to sustain his convictions because the jury convicted him based solely upon Thaxton's testimony which he claims is inherently unbelievable. When reviewing a sufficiency claim, we look only to the probative evidence and the inferences reasonably drawn therefrom favoring the verdict to see whether there was evidence to support a finding of guilt beyond a reasonable doubt; we will not reweigh the evidence or judge the witnesses' credibility. Hilliard v. State (1993), Ind.App., 609 N.E.2d 1167, 1168.

Batarseh maintained at trial and here on appeal that he did not know the juice was stolen. However, at trial, Thaxton testified that Batarseh knew the juice was stolen because he told Batarseh it was. More specifically, Thaxton testified that he told Batarseh that he could supply him with as much juice as he wanted but that it would be stolen juice. As Thaxton's testimony further reveals, upon learning this Batarseh did not decline Thaxton's offer. Rather, he provided Thaxton with two vans and a driver and also a Ryder truck on May 5, 1991, so that more juice could be delivered than would be possible by merely using Thaxton's car.

Other evidence in the record lends support to Thaxton's version of the events. At trial, Officer Douglas McKinney, working on night surveillance on Sunday May 12, 1991, testified that he saw Thaxton and Batarseh's driver leave A.J. in Batarseh's van with the stolen juice. He stated that he followed the van to Batarseh's store where he saw the men drop it off and proceed back to A.J. in a second van. McKinney said that when Thaxton and Batarseh's driver were finally apprehended that night, the second van, filled with stolen orange juice was also on route back to Batarseh's store. McKinney's testimony further disclosed that when the police arrived at Batarseh's store, they found the first van, already unloaded, and the stolen orange juice on the floor inside the store.

In his brief, Batarseh directs our attention to several alleged inconsistencies in Thaxton's testimony regarding when Thaxton met him and what the price was for the orange juice. Batarseh also claims that Thaxton's testimony was inherently unbelievable because he admitted during his second meeting with the FBI that he had previously lied about his involvement in the thefts. However, all of this evidence was before the jury. Ferreting out the truth when faced with conflicting evidence and arriving at a verdict is the jury's function, not ours on appeal. See Mayhew v. State (1989), Ind., 537 N.E.2d 1188, 1189-1190. Only when this Court confronts inherently improbable testimony will we impinge on the jury's responsibility to judge the credibility of witnesses. Rodgers v. State (1981), Ind., 422 N.E.2d 1211, 1213.

Batarseh's claim that Thaxton's testimony is inherently unbelievable is without merit. Accordingly, there was sufficient evidence for a reasonable jury to determine beyond a reasonable doubt that Batarseh knew the juice was stolen when he purchased it from Thaxton.

Next, Batarseh contends that his conviction should be set aside due to jury inattentiveness. During Officer Douglas McKinney's testimony, the court questioned juror Buck: "Mr. Buck, you're paying...