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: ATTORNEYS FOR APPELLEE:

STEPHEN GERALD GRAY GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DONALD EVERLING, )

)

Appellant-Defendant, )

)

vs. ) No. 29A04-1108-CR-487

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE HAMILTON SUPERIOR COURT

The Honorable J. Richard Campbell, Judge

Cause No. 29D04-1006-FD-2976

May 30, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
2

 Case Summary

Donald Everling appeals his conviction for Class D felony theft. We affirm.

Issues

Everling raises four issues, which we restate as:

I. whether the trial court properly denied his motion to 

dismiss;

II. whether the trial court properly admitted into evidence 

statements he made to a loss prevention officer;

III. whether there is sufficient evidence to support his 

conviction; and 

IV. whether the trial court properly denied his motion for 

mistrial.

Facts

On June 12, 2010, Everling was in an electronics store in Fishers with Todd 

Conwell and a juvenile. The store’s loss prevention officer, Darrell Kent, who was on the 

sales floor, became suspicious of Conwell when he placed two hard drives in a shopping 

cart Everling was leaning on. Kent went to the store’s loss prevention office and watched 

Conwell via the store’s closed circuit camera system. Kent observed Everling, who was 

pushing the cart, and Conwell walk to the main aisle of the store where they split up, with 

Conwell taking the cart. 

Kent then watched Conwell via the security cameras as he walked around the 

store. While in the keyboard aisle, Conwell pulled a knife out of his pocket, cut the 

security strapping on one of the hard drives, removed the packaging, and put the hard 
3

drive in the waistband of his pants. During this time, Kent’s attention was focused on 

Conwell, and Kent did not know where Everling was or what he was doing. 

Conwell and Everling met up, each with his own cart with merchandise in it. 

They stopped in the cellular phone aisle, where Everling spoke with a sales associate for 

approximately five minutes, and then they walked to the microwave aisle. Conwell again 

used his knife to remove the security strapping from the second hard drive. While 

Everling opened and closed microwave doors, Conwell placed the hard drive on a shelf, 

removed it from its packaging, and put it in the waistband of his pants. Conwell then 

took a flashlight from his cart, opened the packaging, and put it in his pocket. Then 

Conwell left his cart in an aisle, and they proceeded to the checkout, where Everling 

purchased the items in his cart. 

Because Conwell’s conduct involved a knife, Kent contacted the Fishers Police 

Department. When Conwell and Everling got ten feet outside of the store, police officers 

placed them in handcuffs, and they were taken to the store’s loss prevention office. The 

men remained in handcuffs while they were questioned by Kent and asked to sign 

documents Kent prepared on behalf of the store. Everling signed the documents, 

including a statement of admission, with assistance from Officer Jordan Graham. Officer 

Graham then transported Everling to the jail. 

On June 22, 2010, the State charged Conwell and Everling jointly with Class D 

felony theft. The information alleged, “on or about June 12, 2010 Todd Douglas Conwell 

and Donald Allen Everling did knowingly exert unauthorized control over the property of 

Frye’s [sic] Electronics, to-wit: computer hard drives or a flashlight; with the intent to 
4

deprive said person of any part of the use or value of the property[.]” App. p. 8

(emphasis omitted). The charging information was eventually amended to include an 

allegation that Everling was an habitual offender. 

On July 29, 2010, Everling and his attorney failed to appear at a pre-trial 

conference. On August 16, 2010, Everling moved for a continuance, which the trial court 

granted, and filed a motion to suppress seeking to suppress any statements he made

during his questioning at the store and while being transported to the jail because he had 

not been given Miranda warnings. Everling also sought the suppression of the documents 

he signed with police assistance while in the loss prevention office. On November 29, 

2010, after a hearing, the trial court ruled that Everling’s statements in response to Kent’s 

questioning would not be suppressed because Kent was not acting on behalf of the police. 

The trial court, however, did suppress the documents that Everling signed with police 

assistance and the statements Everling made to Officer Graham while being transported 

to jail. 

On November 30, 2010, the State filed a motion to certify the trial court’s ruling 

on the motion to suppress for interlocutory appeal. On December 1, 2010, the State 

moved to stay the cause pending judicial review. That same day, the trial court granted 

the State’s motion for interlocutory appeal and the motion to stay. No further action was 

taken by the State to perfect the appeal. 

On May 6, 2011, the State filed a motion to reinstate prosecution, which provided, 

“although this cause was submitted in timely fashion pursuant to this Court’s order for 

interlocutory appeal to the Office of the Indiana Attorney General in December of 2010, 
5

the cause was not placed on the docket of the Indiana Appellate Court.” Id. at 26. That 

same day, the trial court granted the State’s motion and set the trial for July 28, 2011. On 

July 18, 2011, Everling filed a motion to dismiss arguing that the delay in prosecuting the 

case violated his constitutional right to a speedy trial and that the State was statutorily 

precluded from prosecuting him. The State responded, indicating that “[t]he cause was 

not placed on the docket of the Indiana Appellate Court.” Id. at 31. The trial court

denied the motion to dismiss, and a jury trial was conducted as scheduled. Everling was

convicted of Class D felony theft and found to be an habitual offender. He now appeals. 

Analysis

I. Motion to Dismiss

Everling argues that the trial court erroneously denied his motion to dismiss. 

“Abuse of discretion is the appropriate standard for appellate review of a trial court’s 

decision to dismiss a charging information.” State v. Davis, 898 N.E.2d 281, 285 (Ind.

2008). 

Everling first argues that the five-month delay caused by the State’s unperfected 

interlocutory appeal violated his right to a speedy trial guaranteed by the 6th and 14th

Amendments to the United States Constitution and Article 1, Section 12 of the Indiana 

Constitution. “In analyzing whether there has been a violation of the right to a speedy 

trial under our state constitution, Indiana has applied the analysis used in Barker v. 

Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).” Lee v. State, 684 N.E.2d 

1143, 1146 (Ind. 1997). “This analysis employs four factors: (1) length of delay, (2) 

defendant’s assertion of his right, (3) the government’s reason for the delay, and (4) the 
6

prejudice to the defendant.” Id. (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2191-92). 

None of the four factors identified above is regarded as either a necessary or sufficient 

condition to the finding of a deprivation of the right of speedy trial; rather, they are 

related factors and must be considered together with such other circumstances as may be 

relevant. Barker, 407 U.S. at 533, 92 S. Ct. at 2193. “In sum, these factors have no 

talismanic qualities; courts must still engage in a difficult and sensitive balancing 

process.” Id., 92 S. Ct. at 2193. 

Everling asserts, “the State’s inexcusable delay impeded the process of justice 

moving deliberately toward the end of obtaining a trial within a reasonable and agreeable 

time, and that he suffered prejudice as a result.” Appellant’s Br. p. 13. Everling does not 

present his argument in terms of the four Barker factors but, instead, focuses on the 

prejudice that he contends was a result of the delay. 

According to Barker: 

Prejudice, of course, should be assessed in the light of the 

interests of defendants which the speedy trial right was 

designed to protect. This Court has identified three such 

interests: (i) to prevent oppressive pretrial incarceration; (ii) 

to minimize anxiety and concern of the accused; and (iii) to 

limit the possibility that the defense will be impaired. Of 

these, the most serious is the last, because the inability of a 

defendant adequately to prepare his case skews the fairness of 

the entire system. 

Barker, 407 U.S. at 532, 92 S. Ct. at 2193 (footnote omitted). Everling provides us with 

no insight regarding his pretrial incarceration or anxiety and concern, and the 

chronological case summary indicates that Everling was released on bond in June 2010. 

As for his argument that his defense was impaired, Everling argues that he was 
7

prejudiced by the delay because Conwell, who was available as a witness for the first trial 

date, could not be located at the time of the July 2011 trial. 

Everling’s argument is based on an undated affidavit by Conwell in which 

Conwell asserts that he did not communicate with Everling about concealing 

merchandise or exerting unauthorized control over the store’s property and that he did not 

ask for or seek the help of any other person. Even if Conwell would have provided 

testimony consistent with the affidavit, the jury viewed the extensive video footage from 

the store’s security camera showing the two men interacting at the store. In light of this

evidence, the jury was able to determine firsthand whether Everling and Conwell were 

acting in concert, and we are not necessarily convinced that Conwell’s purported 

testimony would have had the impact on jury that Everling suggests.1 

Nevertheless, Everling’s assessment of prejudice does not compel us to conclude 

that the five-month delay prejudiced him in a manner that denied him his constitutional 

right to a speedy trial. Regardless of whether Conwell was available for the December 

2010 trial date because he was incarcerated, there is nothing in the record to suggest that 

the State was somehow responsible for Conwell’s subsequent unavailability or that a 

shorter delay would have in resulted in Conwell being available to testify at trial. 

Moreover, nothing in the record shows the efforts Everling made to locate Conwell for 

trial. Thus, the record does not show the five-month delay was part of a “deliberate 

 

1

 Everling also asserts that he was prejudiced by the delay because of the inconsistencies between Kent’s 

testimony at the suppression hearing and at trial. Because Everling was free to bring these inconsistencies 

to the jury’s attention during trial, we do not believe that this is an appropriate basis for establishing that 

he was prejudiced by the delay.
8

attempt to delay the trial in order to hamper the defense[.]” Id. at 531, 92 S. Ct. at 2192. 

This is especially true when considering that Everling was tried within thirteen months of

being charged, that Everling and his counsel failed to appear at the July 2010 pre-trial 

hearing, that Everling moved for a continuance in August 2010, resulting in the trial 

being continued until December 2, 2010, and that Everling did not assert his speedy trial 

rights until July 2011. Thus, Everling has not established that he was denied his 

constitutional right to a speedy trial. 

Everling also argues that the trial court should have granted his motion to dismiss 

because “when the State sought an interlocutory appeal, it was implicit that the order 

precluded further prosecution without the evidence or the State had no right to seek an 

appeal in the first place.” Appellant’s Br. p. 14. This argument is based on Indiana Code 

Section 35-38-4-2, which provides:

Appeals to the supreme court or to the court of appeals, if the 

court rules so provide, may be taken by the state in the 

following cases:

* * * * *

(5) From an order granting a motion to suppress evidence, if 

the ultimate effect of the order is to preclude further 

prosecution. 

(6) From any interlocutory order if the trial court certifies and 

the court on appeal or a judge thereof finds on petition that: 

(A) the appellant will suffer substantial expense, 

damage, or injury if the order is erroneous and the 

determination thereof is withheld until after judgment; 
9

(B) the order involves a substantial question of law, 

the early determination of which will promote a more 

orderly disposition of the case; or 

(C) the remedy by appeal after judgment is otherwise 

inadequate.

According to Everling, because neither the trial court nor this court issued orders 

specifically addressing the factors in Indiana Code Section 35-38-4-2(6), the only basis 

for the State’s appeal was Indiana Code Section 35-38-4-2(5). Referring to Indiana Code 

Section 35-38-4-2(5), Everling asserts, “[i]nherent in that provision is that further 

prosecution is precluded unless the order is overturned.” Id. at 14. 

Contrary to Everling’s argument, in its motion to certify for interlocutory appeal, 

the State asserted that it would suffer significant damage if the suppression order was 

incorrect, that the order involves a substantial question of law, and that the State’s only 

adequate remedy was an interlocutory appeal. Clearly, the State was pursuing an

interlocutory appeal based on Indiana Code Section 35-38-4-2(6), and the trial court, after 

having “examined and reviewed” the State’s motion, certified the order for interlocutory 

appeal. App. p. 24. The State in no way conceded that further prosecution of Everling 

was precluded without the suppressed evidence. The fact that the trial court’s order 

granting the State’s motion did not refer to the factors in Indiana Code Section 35-38-4-

2(6) did not somehow prohibit the State from further prosecuting Everling. Everling has 

not established that the trial court improperly denied his motion to dismiss.

II. Kent’s Testimony
10

Everling argues that the trial court abused its discretion by allowing Kent to testify 

regarding statements Everling made while Kent questioned him in the store’s loss 

prevention office in the presence of police officers. “The admission of evidence is within 

the sound discretion of the trial court, and we will reverse only for an abuse of that 

discretion.” Patterson v. State, 958 N.E.2d 478, 482 (Ind. Ct. App. 2011). “A trial court 

abuses its discretion if its decision is clearly against the logic and the effect of the facts 

and circumstances before the court, or if the court has misinterpreted the law.” Id. We 

do not reweigh the evidence, and we consider conflicting evidence most favorable to the 

trial court’s ruling. Id. We also consider the uncontested evidence favorable to the 

defendant. Id. 

Everling claims that his interaction with Kent was dominated by police to the 

point where Miranda warnings were required. “In Miranda v. Arizona (1966), 384 U.S. 

436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court prescribed certain 

warnings which must be given by the police to an accused prior to any custodial 

interrogation and declared inadmissible any statements obtained from such interrogation 

where the required warnings were not given.” Owen v. State, 490 N.E.2d 1130, 1132

(Ind. Ct. App. 1986), trans. denied. The Owen court explained:

The procedural safeguards of Miranda apply only to custodial 

interrogation . . . . It is custodial interrogation, in a coercive 

atmosphere, by police officers or a police agency, seeking to 

elicit incriminating responses which triggers the necessity for 

Miranda warnings. Since the Miranda warnings need be 

given only in cases of custodial interrogation by police 

officers, it is clear that private citizens need not give Miranda

warnings. Luckett v. State (1973), 158 Ind. App. 571, 303 

N.E.2d 670. 
11

Id. at 1133. 

In Owen, Newman, an off-duty police officer in civilian clothes working as a 

security guard for a store, observed Owen shoplift a package of lunch meat and cigars. 

When Owen left the store, Newman and the store manager asked Owen to return to the 

Store. Newman identified himself as a police officer and showed Owen his police 

identification. Owen was taken to a small room and, because Owen was a captain with 

the Indianapolis Police Department, an off-duty police captain who was also in the store 

was summoned. Owen was then questioned by the store manager and Newman without 

being Mirandized, and Owen signed an admission of guilt. We ultimately determined 

that, by immediately identifying himself as a police officer, Newman intended to use his 

status as a police officer and its attendant power and that, when Newman summoned 

another higher ranking officer, he created “a police dominated custodial atmosphere.” Id.

at 1137. We concluded, “Owen was subjected to custodial interrogation by a police 

agency without the benefit of Miranda warnings. The warnings were required in this case 

and the failure to give them renders his statements inadmissible.” Id. 

At issue here is the admissibility of Kent’s testimony that, while they were in the 

store’s loss prevention office, Everling told Kent that he and Conwell were buddies and 

that he was looking over the microwaves for Conwell. Even if Owen applies and Kent’s 

testimony was improperly admitted, Miranda violations are subject to harmless error 

analysis. See Kelley v. State, 825 N.E.2d 420, 428 (Ind. Ct. App. 2005). “When 

determining whether an error is harmless, our review is de novo and the error must be 
12

harmless beyond a reasonable doubt.” Id. at 428-29. “The State must show that the 

admission of evidence did not contribute to the conviction.” Id. at 429. “To say that an 

error did not contribute to a conviction is to conclude that the error is unimportant in 

relation to everything else considered by the trial court on the issue in question, as 

revealed in the record.” Id. 

As the State points out, the credibility of Kent’s testimony regarding these 

statements was brought into question when Kent testified that he did not include 

Everling’s statements in his comprehensive report of the incident. Moreover, the jury 

watched the surveillance video showing the men together in the store. The jury saw 

Conwell and Everling interacting while they shopped together, particularly in the 

microwave aisle where they stood closely and talked as Everling opened and closed 

microwave doors while Conwell removed a hard drive from its packaging and placed it in 

his pants. By viewing the lengthy surveillance video of the two men together in the store, 

the jury was able to view the two men’s conduct and demeanor to determine whether they

were acting in concert. Under these circumstances, we believe that any error in the 

admission of Kent’s testimony regarding Everling’s statements did not contribute to the 

conviction and was harmless beyond a reasonable doubt.

III. Sufficiency of the Evidence

Everling also argues there is insufficient evidence to support his theft conviction. 

The standard of review for claims of insufficient evidence is well settled. We do not 

reweigh the evidence or judge the credibility of the witnesses, and we respect the jury’s

exclusive province to weigh conflicting evidence. Jackson v. State, 925 N.E.2d 369, 375
13

(Ind. 2010). We consider only the probative evidence and reasonable inferences 

supporting the verdict and affirm if the probative evidence and reasonable inferences

drawn from the evidence could have allowed a reasonable trier of fact to find the 

defendant guilty beyond a reasonable doubt. Id. 

Everling argues that, without Kent’s testimony about Everling’s connection to 

Conwell, the State’s case “probably doesn’t even rise to probable cause.” Appellant’s Br. 

p. 18. As we have already determined, however, the trial court did not abuse its 

discretion in admitting Kent’s testimony into evidence. Thus, the jury was free to 

consider this testimony.

Everling also challenges the probative value of Kent’s trial testimony on the basis 

that it conflicted with his testimony at the suppression hearing and was not included in 

the report he prepared after the incident. At the suppression hearing, Kent testified that 

he could not remember asking Everling any questions in the loss prevention office. At 

trial, Kent testified that Everling told Kent he and Conwell were buddies and that he was 

looking over the microwaves for Conwell. Everling then questioned Kent as to why his 

report did not reference these statements. Everling argues that Kent’s trial testimony is 

highly suspect and uncorroborated. 

We disagree with Everling’s assessment of the evidence. The jury viewed the 

videotape of the security footage, which showed the interaction between Conwell and 

Everling and specifically showed Everling’s conduct in the microwave aisle. From this 

evidence alone, the jury was able to assess whether the two men were acting in concert to 

commit theft. Further, Everling cross-examined Kent regarding why his report did not 
14

include Everling’s statements. It was the jury’s role to determine Kent’s credibility, and 

we will not reweigh the evidence or reassess credibility. Everling has not established that 

the evidence is insufficient to support his conviction.

IV. Mistrial

Everling argues that the trial court erroneously denied his request for a mistrial 

during the State’s questioning of Officer Graham. “We review a trial court’s decision to 

deny a mistrial for abuse of discretion because the trial court is in ‘the best position to 

gauge the surrounding circumstances of an event and its impact on the jury.’” Pittman v. 

State, 885 N.E.2d 1246, 1255 (Ind. 2008) (quoting McManus v. State, 814 N.E.2d 253, 

260 (Ind. 2004), cert. denied). A mistrial is appropriate only when the questioned 

conduct is so prejudicial and inflammatory that the defendant is placed in a position of 

grave peril to which he or she should not have been subjected. Id. The gravity of the 

peril is measured by the probable persuasive effect of the conduct on the jury. Id. 

While the State questioned Officer Graham, the following exchange took place:

Q. After Mr. Kent had finished his investigation at Fry’s 

what did you do next?

A. Well, concurrently with that investigation, I believe at 

one time I asked both Mr. Conwell and Mr. Everling if they 

had ever been arrested before.

THE STATE: Before you object, I’ll withdraw. 

I withdraw that.

THE DEFENSE: Okay. Your Honor, we’d better 

approach.
15

Tr. p. 233. Defense counsel asked the jury to be excused. The trial court asked if they 

could wait until they finished questioning the witness, and defense counsel agreed as long 

as the objection was preserved. When Officer Graham finished testifying, the jury was 

excused and defense counsel moved for a mistrial. Defense counsel acknowledged that 

the prosecutor did not necessarily elicit testimony in violation of the pre-trial motion in 

limine, which prohibited references to whether Everling had been arrested or investigated 

for any other crime. Instead, Defense counsel’s objection was based on the prosecutor 

withdrawing the question. According to defense counsel’s argument to the trial court, “it 

was the State’s reaction in jumping up and withdrawing the question as if, Wow, we can’t 

-- we can’t disclose any of that, that has created the problem.” Id. at 240. Defense 

counsel was concerned that the jury would be left with the impression that Everling had a 

lengthy criminal history. After extensive arguments by both sides, the trial court stated:

I don’t think it rises to the level of a mistrial. I mean, if you 

want a limiting instruction, I will be glad to give you a 

limiting instruction, but I’m going to deny your motion for a 

mistrial. I don’t think it merits a mistrial, but a limiting 

instruction to disregard whether or not your client has been 

arrested, even though there was no evidence suggesting he 

has been arrested. 

If you want such a limiting instruction, . . . you know 

that’s probably a double edge sword, too, giving a limiting 

instruction. But that’s the best I can do for you today. But 

you can think about that.

Id. at 247-48. Defense counsel did not request a limiting instruction. 

Assuming the issue was properly preserved notwithstanding counsel’s failure to 

seek an admonishment, Everling acknowledges that “[i]t is difficult if not impossible” for 

us to appreciate the dynamics of what took place by reading the transcript. Appellant’s 
16

Br. p. 22. This is the very reason for our deference to the trial court’s ruling on such 

motions. The trial court was able to observe the prosecutor’s response to Officer 

Graham’s answer and to assess the jury’s reaction to the line of questioning and 

determined that a mistrial was not warranted. Without more, we defer to the trial court’s 

assessment. Everling has not established that the trial court abused its discretion in 

denying his motion for a mistrial.

Conclusion

Everling has not established that his motion to dismiss was improperly denied, that 

the admission of Kent’s testimony was reversible error, that there is insufficient evidence 

to sustain his conviction, or that his motion for mistrial was improperly denied. We 

affirm.

Affirmed.

BAKER, J., and BROWN, J., concur.