Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 1 of 7

MEMORANDUM DECISION

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

David M. Payne

Ryan & Payne

Marion, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jennifer Lynn Hand,

Appellant-Defendant,

v. 

State of Indiana, 

Appellee-Plaintiff

December 5, 2018

Court of Appeals Case No.

18A-CR-890 

Appeal from the Grant Superior 

Court

The Honorable Jeffrey D. Todd 

Trial Court Cause No.

27D01-1706-F6-293 

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 2 of 7

[1] Jennifer Lynn Hand appeals her conviction for Level 6 felony theft.1 She also 

appeals the trial court’s order of restitution as the court did not inquire into her

ability to pay. We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] Hand worked as an assistant manager at the Circle K store located on Bradford 

Street in Marion, Indiana (“Store #2203”). She was a “trusted employee.” (Tr. 

Vol. II at 88.) However, Hand had been experiencing problems in her family 

and had requested time off to travel to see them out of state.

[3] Ericka Kroft was the manager at Store #2203. Robert Haynes was the market 

manager over that store and seventeen others. On May 16, 2017, Haynes was 

notified by the corporate office that no deposit had been made for Store #2203 

for May 11, 2017. Store #2203 used Star Financial (“Star”) as its bank.

[4] Haynes informed Kroft the company had been unable to locate the deposit for 

Store #2203. Kroft investigated.2

 Because Kroft had been scheduled to work 

on May 11, Kroft assumed she had taken the deposit to the bank. However, 

 

1 Ind. Code § 35-43-4-2 (2017). 

2 Circle K had procedures in place whereby either the manager or one of the two assistant managers must 

take the daily deposit to the bank. This person was to go straight to the bank from the store. If it was a 

weekday, the deposit was to be made inside the bank with the “first available teller.” (Tr. Vol. II at 75.) The 

bank teller would keep the white copy of the deposit slip and return the pink and yellow copies, together with 

the deposit receipt. The person making the deposit was to return the documentation to the store immediately 

or at the beginning of that person’s next shift at the store. On weekends, the person was allowed to use the 

bank’s dropbox and the documentation would be retrieved during Monday’s deposit. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 3 of 7

she could not locate the deposit receipt from the bank or the pink and yellow

copies of the deposit slip, which the store retains. Kroft contacted Star to 

request the bank review its documentation for a deposit and its security footage 

to see if she had been there that day. Star was unable to find any 

documentation of a deposit for Store #2203 that day. Nor did Star’s security 

footage show Kroft at the bank that day. Kroft thought she had requested Star 

to see if Hand had been in the bank that day; however, she was not “one 

hundred percent [sure]” she had. (Id. at 114.) Nonetheless, Star personnel 

“knew what [Hand] looked like.” (Id. at 115.)

[5] Hand and Kroft both worked on May 11, 2017. Both were authorized to make 

deposits for Store #2203. Kroft remembered asking Hand to take the deposit to 

the bank and Hand complying. However, Kroft was unable to locate any of the 

deposit documentation. Haynes came to the store but was also unable to find 

the deposit documentation. Kroft and Haynes reviewed Store #2203’s security 

footage. That footage showed Kroft dealing with a customer complaining of 

credit card fraud, Hand leaving the store with the deposit, and Kroft leaving the 

store without the deposit. 

[6] On May 25, 2017, Marion Police Department Officer Cody Weigle was called 

to Store #2203 to take a report of theft from Haynes and Kroft. The State filed 

a charge of Level 6 felony theft against Hand. On February 26, 2018, the trial 

court held a jury trial. The jury found Hand guilty. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 4 of 7

[7] On March 14, 2018, the trial court sentenced Hand to two years, with six 

months suspended to probation. As a condition of her probation, Hand was 

ordered to pay restitution “to Circle K in the amount of $2,876.84.” (Appealed 

Order at 2.) After sentencing Hand to one and one-half years executed and six 

months on “formal supervised probation[,]” (Tr. Vol. II at 176), the trial court 

ordered Hand to pay the restitution as a condition of her probation “in equal 

monthly installments until such time as the restitution is paid in full.” (Id.) 

Discussion and Decision

Sufficiency of Evidence

[8] When reviewing sufficiency of the evidence in support of a conviction, we will 

consider only probative evidence in the light most favorable to the trial court’s 

judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The 

decision comes before us with a presumption of legitimacy, and we will not 

substitute our judgment for that of the fact-finder. Id. We do not assess the 

credibility of the witnesses or reweigh the evidence in determining whether the 

evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal 

is appropriate only when no reasonable fact-finder could find the elements of 

the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not 

required to overcome every reasonable hypothesis of innocence and is sufficient 

if an inference reasonably may be drawn from it to support the verdict. Id. at 

147.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 5 of 7

[9] To prove Hand committed Level 6 felony theft, the State had to present 

evidence Hand “knowingly or intentionally exert[ed] unauthorized control over 

the property of at least $750.00 . . . with the intent to deprive Circle K of any 

part of the use or value of the property[.]” (App. Vol. II at 18); see also Ind. 

Code § 35-43-4-2 (elements of theft). “[I]ntent is a mental function and without 

a confession, it must be determined from a consideration of the conduct, and 

the natural consequences of the conduct.” Duren v. State, 720 N.E.2d 1198, 

1202 (Ind. Ct. App. 1999), trans. denied. Accordingly, intent often must be 

proven by circumstantial evidence. Id. The trier of fact is entitled to infer intent 

from the surrounding circumstances. White v. State, 772 N.E.2d 408, 412 (Ind. 

2002).

[10] The State presented evidence that: 1) Hand was given the deposit; 2) Hand left 

Store #2203 with the deposit; 3) Star did not have documentation of a deposit 

from Store #2203 that day; 4) the documentation Store #2203 keeps after a 

successful deposit was missing; and 5) Hand had family crises during this 

timeframe that resulted in travel expenses. 

[11] Hand contends the State’s evidence was purely circumstantial and, therefore, 

insufficient to prove Hand committed theft. Although no one saw Hand steal 

the money, it was reasonable for the jury to infer she did because, together with 

the security footage indicating Hand left the store with the deposit, neither the 

bank nor the store had record of the deposit being made. See Bonds v. State, 721 

N.E.2d 1238, 1242 (Ind. 1999) (“circumstantial evidence will be deemed

sufficient if inferences may reasonably be drawn that enable the trier of fact to 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 6 of 7

find the defendant guilty beyond a reasonable doubt”). Hand’s request for us to 

consider alternative theories for why the deposit was missing are an invitation 

for us to reweigh the evidence, which we cannot do. See McHenry v. State, 820 

N.E.2d 124, 126 (Ind. 2005) (appellate court does not reweigh evidence or 

judge the credibility of witnesses).

Restitution

[12] “Generally, an order of restitution is within the trial court’s discretion, and it 

will be reversed only upon a finding of an abuse of that discretion. An abuse of 

discretion occurs when the trial court misinterprets or misapplies the law.” 

Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004). A restitution order 

must be supported by sufficient evidence of actual loss sustained by the victim 

of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied. 

A trial court may order restitution as a condition of probation; however, as a 

defendant can be imprisoned for failing to meet the conditions of probation, the 

trial court is required to inquire into the defendant’s ability to pay that 

restitution. Bell v. State, 59 N.E.3d 959, 963 (Ind. 2016). 

[13] Hand argues the trial court abused its discretion because it did not inquire as to 

her ability to pay restitution. The State agrees. If a trial court fails to make 

such an inquiry and a defendant fails to provide sufficient evidence of her 

inability to pay, the appropriate remedy is to remand for a new restitution 

order. Id. at 966. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-890 | December 5, 2018 Page 7 of 7

[14] Here, the trial court ordered restitution of $2,876.84 and ordered it be paid 

during her probation, i.e., in six months; however, the court did not inquire as 

to Hand’s ability to pay restitution or to pay it at that rate. Hand also did not

have an opportunity to present any evidence of her inability to pay restitution. 

Hand is entitled to such an inquiry. See M.L. v. State,838 N.E.2d 525, 530 (Ind. 

Ct. App. 2005) (defendant is entitled to a hearing on his or her ability to pay 

restitution), reh’g denied, trans. denied. As the trial court’s order for restitution 

constitutes an abuse of discretion because it did not make an inquiry into 

Hand’s ability to pay restitution, we reverse the restitution order and remand to 

the trial court with instructions to inquire into Hand’s ability to pay an order of 

restitution. See Bell, 59 N.E.3d at 966 (proper remedy for failure to inquire into 

defendant’s ability to pay is to reverse and remand for a new order following an 

inquiry as to ability to pay).

Conclusion

[15] Although circumstantial, the State presented sufficient evidence Hand 

committed theft. The trial court abused its discretion when it entered a 

restitution order as a condition of her probation without inquiring into Hand’s 

ability to pay. Accordingly, we affirm in part, reverse in part, and remand with 

instructions.

[16] Affirmed in part, reversed in part, and remanded. 

Baker, J., and Robb, J., concur.