Hughes v. State, 2-982A298

• Docket Nº: No. 2-982A298
• Citation: 446 N.E.2d 1017
• Case Date: April 06, 1983
• Court: Court of Appeals of Indiana

Page 1017

446 N.E.2d 1017 Richard HUGHES, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 2-982A298. Court of Appeals of Indiana,
Second District. April 6, 1983.

Page 1018

Charles E. Johnson, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Richard Hughes (Hughes) appeals his conviction of theft under I.C. 35-43-4-2 (Burns Code Ed., Supp.1982) raising the following issues:

1) Whether there was sufficient evidence he did not have authority to control the merchandise,

2) Whether there was sufficient evidence of the value of the merchandise, and

3) Whether the trial court erred in refusing Hughes's tendered instruction number one.

We affirm.

I.

The appellate standard of review of sufficiency of the evidence in criminal cases is well established. This court will not reweigh the evidence nor judge the credibility of the witnesses, but will consider only the evidence most favorable to the State and all reasonable inferences which may be drawn therefrom. If we find substantial evidence of probative value from which a reasonable trier of fact could conclude guilt beyond a reasonable doubt, then we must affirm. Bray v. State, (1982) Ind., 430 N.E.2d 1162. It is possible for a theft conviction to be supported solely by circumstantial evidence. Ward v. State, (1982) Ind., 439 N.E.2d 156, 159. On review, we do not need to find the circumstantial evidence adequate to overcome every reasonable hypothesis of innocence, but need only find that an inference which reasonably supports the finding of the jury may be reasonably drawn from the evidence. Id.

The facts viewed most favorably to the State show that on September 24, 1981, after leaving an enclosed shopping mall, Hughes was apprehended in the parking lot with two women's dresses bearing intact sales tickets. The dresses were in a "roller derby" box. The assistant manager of Jean Nicole clothing store recognized the dresses as part of her stock and identified the sales tickets hanging from the dresses as unique to the Jean Nicole store in the mall. She testified she had seen Hughes in the dress department of her store a few hours earlier and had not seen him purchase anything. She further testified that the dresses found on Hughes had not been sold by her store because the sales tickets were still intact; one half had not been torn off and inserted into the computerized cash register as required to ring up a sale.

Under I.C. 35-43-4-1(a) and (b) (Burns Code Ed., Supp.1982), in pertinent part, a person "exerts control over property" of another by taking or concealing and such control is "unauthorized" when it is exerted without the other's consent or in a manner other than that to which the other consented. The facts recited above show sufficient circumstantial evidence from which a jury could reasonably conclude the Jean Nicole dresses had not been paid for, were being concealed in the "roller derby" box, and therefore Hughes's control over them was not authorized. See generally Wise v. State, (1980) Ind.App., 401 N.E.2d 65; Hartman v. State, (1975) 164 Ind.App. 356, 328 N.E.2d 445; I.C. 35-43-4-4(c) (Burns Code Ed., Supp.1982).

Page 1019

II.

Hughes's contention the State must prove the actual value of the property which was the subject of theft is without merit. While such proof was necessary under the former statutory scheme to determine the grade of offense and the penalty, I.C. 35-17-5-3, -12 (Burns Code Ed.1975) (repealed by Acts 1976, P.L. 148 Sec. 24, effective October 1, 1977 by Acts 1977, P.L. 340 Sec. 151), it is not required under the current theft statute except insofar as the State must show the defendant intended to deprive the owner of any part of the "value or use" of the property, whatever that value or use might be. Busam v. State, (1983) Ind.App., 445 N.E.2d 118.

We hold the evidence most favorable to the State, as described above, is sufficient to show Hughes intended to deprive the Jean Nicole store of the value of two of its dresses which had been offered for sale. See I.C. 35-43-4-4(c).

III.

Hughes contends the court erred in refusing his tendered instruction number one:

"The unexplained exclusive possession of a defendant of recently stolen property is a circumstance which may be considered, along with the other facts and circumstances of the case, in determining the guilt or innocence of the accused. However, the mere possession of stolen goods, standing alone, is insufficient to support a conviction, and the defendant cannot be convicted on the basis of evidence of...