Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015 Page 1 of 6

ATTORNEY FOR APPELLANT

Jeffrey D. Stonebraker

Clark County Chief Public Defender

Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Kenneth E. Biggins

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jeremy Middleton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 10, 2015

Court of Appeals Case No.

10A04-1407-CR-317

Appeal from the Clark Circuit Court; 

The Honorable Vicki L. Carmichael, 

Judge;

10C04-1309-FC-246

May, Judge.
Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015 Page 2 of 6

[1] Jeremy Middleton challenges the sufficiency of evidence support his conviction 

of Class D felony theft.

1

 

[2] We reverse.

Facts and Procedural History

[3] On September 19, 2013, Middleton entered Rural King with two other people. 

Employees notified Roxanne Mundy, a department manager, of suspicious 

behavior. Mundy started to observe and follow Middleton. Mundy saw 

Middleton attempt to cut the security device from a product, but she was unable 

to identify that product. Mundy thought Middleton saw her, and Middleton 

then left the store.

[4] Doug Burdin, another department manager, and Christopher Watkins, the store 

manager, followed Middleton and Mundy into the parking lot in order to 

obtain a license plate number or a car description. Middleton said to Mundy:

“Why are you following me? I’ve got nothing.” (Tr. at 84.) Mundy insisted 

Middleton return “what you have.” (Id. at 31.) Both Mundy and Middleton 

threatened to call the police. During their interaction, Middleton was raising 

his shirt and putting his hands in his pockets. At one point, Middleton pulled a 

knife from his pocket, which he dropped and Mundy retrieved. Mundy gave 

the knife to Watkins.

 

1

Ind. Code 35-43-4-2 (2013).
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[5] Watkins saw a police car driving nearby and flagged down Officer Jeff Gordon 

to assist. Middleton, on seeing the police, started running away. Burdin 

watched where Middleton was going and pointed him out to Officer Gordon. 

Officer Gordon was able to catch Middleton and arrest him. Middleton

declared his innocence.

[6] At trial, in support of the theft charge,2the State presented the testimony of 

Mundy, Watkins, and Burdin. Middleton objected to parts of their testimony 

as hearsay. The court allowed the testimony, but it admonished the jury that 

the testimony was to be used to explain the actions of the Rural King 

employees, not to prove the truth of the matter asserted. The jury found 

Middleton guilty.

Discussion and Decision

[7] On appeal, Middleton asserts there was insufficient evidence to support his 

conviction of Class D felony theft. 

When reviewing the sufficiency of the evidence to support a 

conviction, appellate courts must consider only the probative evidence 

and reasonable inferences supporting the verdict. It is the fact-finder’s 

role, not that of appellate courts, to assess witness credibility and 

weigh the evidence to determine whether it is sufficient to support a 

conviction. To preserve this structure, when appellate courts are 

confronted with conflicting evidence, they must consider it most 

favorably to the trial court’s ruling. Appellate courts affirm the 

 

2 The State also charged Middleton with intimidation, a Class C felony, based on his pulling a knife from his 

pocket during the interaction with Mundy. The jury convicted him of that charge, but he does not challenge 

it on appeal.
Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015 Page 4 of 6

conviction unless no reasonable fact-finder could find the elements of 

the crime proven beyond a reasonable doubt. It is therefore not 

necessary that the evidence overcome every reasonable hypothesis of 

innocence. The evidence is sufficient if an inference may reasonably 

be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations, citation, and 

footnote omitted) (emphasis in original). 

[8] Theft is committed when a person “knowingly or intentionally exerts 

unauthorized control over property of another person, with intent to deprive the 

other person of any part of its value. . . .” Ind. Code § 35-43-4-2. Middleton’s 

charging information pertaining to the theft stated:

On September 19, 2013, in Clark County, State of Indiana, JEREMY 

LEE MIDDLETON did knowingly or intentionally exert 

unauthorized control over a range-finder of Rural King, with intent to 

deprive Rural King of any part of its value or use.

(App. at 6.) 

[9] As to this charge, the testimony of Mundy that was offered for the truth of the 

matter asserted was that she followed Middleton through the store; she saw him 

cutting on a security device, but she could not see the product he was 

attempting to extricate; and she followed him outside. The testimony of Burdin 

and Watkins that was admitted for the truth of the matter asserted related only 

to Middleton’s actions after leaving the store. 
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[10] With the removal of the hearsay testimony,

3 which the jury was admonished 

was “not . . . offer[ed] . . . for the truth of the matter asserted, simply, so the 

Jury can understand what she did,” (Tr. at 14), and “not saying anything for the 

truth of the matter asserted,” (id. at 18), the evidence presented against 

Middleton as to the charge of theft amounts to Mundy’s statements that she 

followed him, she saw him using a knife on a security device, and he left the 

store. Although Mundy saw Middleton using a knife on something, she was 

unable to identify the product. No other evidence was presented to prove 

Middleton took a range-finder. That is not sufficient evidence from which a 

reasonable jury could infer Middleton knowingly or intentionally exerted

unauthorized control over a range-finder. See Williams v. State, 714 N.E.2d 671, 

674 (Ind. Ct. App. 1999) (insufficient evidence to support conviction when all 

elements of theft were not proven).

Conclusion

[11] The evidence was insufficient to support Middleton’s conviction of Class D 

felony theft; therefore, we reverse.

[12] Reversed.

 

3 The testimony objected to on hearsay grounds pertained to why Mundy started following Middleton, 

a cashier’s report of someone in line talking on a phone saying Middleton was being followed and they 

needed to leave, and the report of the discovery of a range finder under some animal feed. 

The employees who allegedly saw Middleton with a range finder were not called to testify. The 

employees who allegedly discovered a range finder in the animal feed were not called to testify. No 

surveillance video was entered into evidence. No pictures of a range finder were entered into evidence.
Court of Appeals of Indiana | Opinion 10A04-1407-CR-317 | April 10, 2015 Page 6 of 6

Barnes, J., and Pyle, J., concur.