Court of Appeals of Indiana | Memorandum Decision 35A02-1604-CR-783 | November 30, 2016 Page 1 of 12

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

Jeremy K. Nix

Matheny, Hahn, Denman & Nix, L.L.P.

Huntington, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Matthew C. Elzey, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 30, 2016

Court of Appeals Case No.

35A02-1604-CR-783

Appeal from the Huntington 

Superior Court

The Honorable Jeffrey R. 

Heffelfinger, Judge

Trial Court Cause No.

35D01-1509-F6-212

Robb, Judge.
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Case Summary and Issues

[1] Following a jury trial, Matthew Elzey, Jr., was convicted of theft as a Level 6

felony due to a prior unrelated conviction. The trial court sentenced Elzey to 

two and one-half years in prison. Elzey raises three issues on appeal: 1) 

whether the evidence is sufficient to support Elzey’s conviction; 2) whether the 

trial court abused its discretion in sentencing Elzey; and 3) whether Elzey’s 

sentence is inappropriate in light of the nature of the offense and his character. 

Concluding the evidence is sufficient to support Elzey’s conviction, the trial 

court did not abuse its discretion in sentencing Elzey, and Elzey’s sentence is

not inappropriate, we affirm. 

Facts and Procedural History 

[2] On September 4, 2015, Rebecca Powell, an Asset Protection Manager at the 

Wal-Mart in Huntington, Indiana, observed a man she later identified as Elzey 

moving around nervously in the electronics section of the store. Elzey was in 

an area of the store that Powell knew to be a high theft area. Powell observed 

Elzey take from a shelf a package containing an FM transmitter that converts

music from a device through a car radio. Soon after, a woman joined Elzey in 

the electronics section and the couple moved into the toy section. The woman 

was later identified as Brooke Roark, Elzey’s girlfriend at the time. 

[3] Next, Powell observed Elzey use a key to break the package seal and remove 

the contents, discarding the empty packaging on a nearby shelf. Powell 
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continued to monitor Elzey and Roark as they moved to the clearance section, 

where Powell witnessed Elzey slip the merchandise into his pocket. Powell 

then contacted Jim Clark, the Wal-Mart Store Manager, while Elzey and Roark 

moved to the pharmacy section of the store. Elzey and Roark did not make any 

purchases, but rather proceeded to move past the cash registers, through the 

store metal detectors, and to the store’s automatic doors, which opened for 

them to step outside. Immediately before Elzey and Roark could exit the 

building, Powell and Clark stopped Elzey, confronted him with their 

observations, and requested he return the merchandise to them. Elzey 

informed Powell and Clark he left the merchandise on the shelf with the 

packaging. 

[4] Elzey turned around and went back into the store leading Powell and Clark to 

the electronics section where he claimed to have placed the merchandise. 

Powell disputed Elzey ever went back to the electronics section, and Elzey then 

stated the merchandise was in the clearance aisle. Powell asked Elzey to return 

the merchandise several times during the group’s tour of the store. Next, Elzey 

led the group to the vacuum aisle, where Powell retrieved the empty packaging 

and once again demanded Elzey return the merchandise. In response, Elzey 

stated, “I put it over here,” transcript at 70, and hurried around the corner 

toward another aisle that he had not previously occupied. Following Elzey 

around the corner, Powell observed Elzey pull the merchandise from his 

pocket, and Powell demanded Elzey hand it to her. Next, Powell took Elzey to 

the store office and called the Huntington Police Department. Once in the 
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office, Elzey told Powell he would cooperate and that he did not know why he 

removed the item from its package and put it in his pocket. 

[5] The State charged Elzey with theft, a Class A misdemeanor enhanced to a 

Level 6 felony due to a prior conviction for theft. On March 3, 2016, the State 

presented its case against Elzey to a jury. After the jury found Elzey guilty of 

Class A misdemeanor theft, Elzey admitted he had a prior conviction for theft, 

and the trial court entered judgment of conviction as a Level 6 felony. The trial 

court subsequently sentenced Elzey to two and one-half years in the 

Department of Correction. Elzey now appeals his conviction and sentence. 

Discussion and Decision

I. Sufficiency of the Evidence

[6] “When reviewing a claim of insufficient evidence, we neither reweigh the 

evidence nor assess witness credibility, considering instead only the evidence 

supporting the conviction and any reasonable inferences that the factfinder may 

have drawn from that evidence.” Gonzalez v. State, 908 N.E.2d 338, 340 (Ind. 

Ct. App. 2009). “Looking to the evidence and reasonable inferences drawn 

therefrom that support the verdict, we will affirm the conviction if there is 

probative evidence from which a reasonable jury could find the defendant guilty 

beyond a reasonable doubt.” Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 

1997). 
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[7] Elzey contends the State failed to present sufficient evidence to support his 

conviction, arguing he did not leave the store premises and did not deprive 

Wal-Mart of the value or use of the confiscated merchandise. Elzey was 

charged with and convicted of theft under Indiana Code section 35-43-4-

2(a)(1)(C)(i), which states: 

(a) A person who knowingly or intentionally exerts unauthorized 

control over property of another person, with intent to deprive 

the other person of any part of its value or use, commits theft, a 

Class A misdemeanor. However, the offense is:

(1) a Level 6 felony if:

* * *

(C) the person has a prior unrelated conviction for: 

(i) theft under this section . . . . 

Further, Indiana Code section 35-43-4-4(c) provides: 

(c) Evidence that a person:

(1) concealed property displayed or offered for sale or hire, 

and 

(2) removed the property from any place within the business 

premises at which it was displayed or offered to a point 

beyond that at which payment should be made;

constitutes prima facie evidence of intent to deprive the owner of 

the property of a part of its value and that the person exerted 

unauthorized control over the property.
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[8] As the State points out, the statute does not require evidence showing Elzey 

actually deprived Wal-Mart of value, but rather only evidence showing Elzey 

had the intent to deprive Wal-Mart of value or use through his unauthorized 

control over the merchandise. See Brief of Appellee at 12. In this instance, the 

circumstances surrounding Elzey’s conduct suggests he intended to remove the 

merchandise from the store without paying for it. 

[9] Elzey’s intent was on display from the moment Powell began observing him. 

Powell noticed Elzey acting nervous in an area of the store that was notorious 

for attracting thieves. Powell watched Elzey as he selected electronic 

merchandise, carried the package to a different section of the store, ripped open 

the packaging, discarded the packaging, and placed the merchandise in his left 

pocket. Elzey and Roark then walked past the cash registers, past the store 

metal detectors, and towards the exit where Powell and Clark stopped them. 

Elzey made no purchases at any time. Only after Powell and Clark stopped 

Elzey did he lead the group back into the store. Once Elzey led the group 

through several aisles without producing the merchandise, he entered a new 

aisle he had not previously occupied and attempted to discretely pull the 

merchandise from his pocket and place it on a shelf as if he had previously left it 

there. In the Wal-Mart office, Elzey confessed he did not know why he did it. 

[10] The fact that Elzey did not make it through the store’s exterior doors is 

irrelevant because he moved past the point where payment should have been 

made. In Chambliss v. State, 746 N.E.2d 73 (Ind. 2001), the defendant 

challenged the sufficiency of evidence supporting his theft conviction, arguing 
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he had neither exited the store nor passed the cash registers and therefore he did 

not exhibit an intent to commit theft. The Indiana Supreme Court disagreed, 

holding the jury could reasonably infer the defendant intended to exercise 

unauthorized control of the property because the defendant concealed the 

merchandise under his jacket and removed it only after being confronted by a 

store employee. Id. at 78; see also Hartman v. State, 164 Ind. App. 356, 359, 328 

N.E.2d 445, 447 (1975) (holding there was sufficient evidence to give rise to an

inference the defendant exerted unauthorized control for purpose of committing 

theft when store employees caught defendant with merchandise concealed 

under his jacket a few feet from the store doors). As in Chambliss and Hartman, 

Elzey concealed the merchandise in his pocket and advanced past the point of 

payment to the store’s doors, evidence which we conclude is sufficient to show 

Elzey intended to deprive Wal-Mart of the value of its merchandise through 

unauthorized control. 

II. Abuse of Discretion in Sentencing 

[11] Next, Elzey argues that the trial court abused its discretion in sentencing him by 

failing to provide a sentencing statement. 

[12] Sentencing decisions fall within the discretion of the trial court and may only be 

reviewed for abuse of such discretion. Anglemyer v. State, 868 N.E.2d 482, 490 

(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of 

discretion occurs if the decision is ‘clearly against the logic and effect of the 

facts and circumstances before the court, or the reasonable, probable, and actual 
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deductions to be drawn therefrom.’” Id. (citation omitted). Indiana law 

requires the trial court to give reasons for the sentence it imposes for a felony 

conviction when it finds mitigating or aggravating circumstances are present. 

Ind. Code § 35-38-1-3(3). The sentencing statement “must include a reasonably 

detailed recitation of the trial court’s reasons for imposing a particular 

sentence.” Anglemyer, 868 N.E.2d at 490. 

One way in which a trial court may abuse its discretion is failing 

to enter a sentencing statement at all. Other examples include 

entering a sentencing statement that explains reasons for 

imposing a sentence—including a finding of aggravating and 

mitigating factors if any—but the record does not support the 

reasons, or the sentencing statement omits reasons that are 

clearly supported by the record and advanced for consideration, 

or the reasons given are improper as a matter of law. 

Id. at 490-91. “A trial court’s consideration of factors may be evidenced in 

either the written order or in an oral sentencing statement.” Anderson v. State, 

989 N.E.2d 823, 826 (Ind. Ct. App. 2013), trans. denied.

[13] Although there is no written sentencing order detailing the trial court’s reasons 

for imposing a two and one-half year sentence here, the trial court’s oral 

statements in sentencing Elzey suffice. At the sentencing hearing, the trial court 

reviewed Elzey’s presentence investigation report, asked Elzey whether it was 

correct, and then heard arguments about what sentence should be imposed. 

Elzey did not specifically advance any mitigating circumstances for the trial 

court’s consideration, other than to note he believed his drug addiction had 

influenced his decision-making and he had a pending petition to revoke 
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probation in another case which would expose him to up to two years of 

incarceration. The State noted Elzey’s age—twenty-two at the time of 

sentencing—and his criminal history and response to prior leniency. Following 

the arguments, the trial court identified Elzey’s criminal history as the reason 

for imposing a two and one-half year sentence when it stated, “The defendant’s 

criminal history indicates he had two (2) adjudications as a juvenile, two (2) 

prior felony offenses, three (3) petitions to revoke. He was on probation for 

robbery at the time this was committed.” Tr. at 139. A defendant’s criminal 

history is a legitimate aggravating circumstance, see Phillips v. State, 869 N.E.2d 

512, 515 (Ind. Ct. App. 2007), and the trial court’s oral statement provided 

reasonably detailed reasons supported by the record for imposing the sentence it 

chose. Such a statement provides an adequate basis for review of the trial 

court’s reasoning in sentencing Elzey and was not an abuse of discretion.

III. Inappropriate Sentence

[14] Elzey also challenges his sentence under Indiana Appellate Rule 7(B), arguing 

his sentence itself is inappropriate. Appellate Rule 7(B) provides a “Court may 

revise a sentence authorized by statute if, after due consideration of the trial 

court’s decision, the Court finds that the sentence is inappropriate in light of the 

nature of the offense and the character of the offender.” “The principal role of 

appellate review should be to attempt to leaven the outliers, and identify some 

guiding principles for trial courts and those charged with improvement of the 

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” 

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The appropriateness of a 
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sentence turns on the culpability of the defendant, the severity of the crime, the 

damage done to others, and an array of other factors that might be related to the 

circumstances giving rise to the sentence. Id. at 1224. “We should concentrate 

less on comparing the facts of this case to others, whether real or hypothetical, 

and more on focusing on the nature, extent, and depravity of the offense for 

which the defendant is being sentenced, and what it reveals about the 

defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) 

(quotation omitted), trans. denied. “The appellant bears the burden of 

demonstrating his sentence is inappropriate.” Wells v. State, 2 N.E.3d 123, 131 

(Ind. Ct. App. 2014), trans. denied.

[15] First, we consider the nature of Elzey’s offense. When reviewing the nature of 

the offense, a relevant factor is whether there is anything more or less egregious 

about the offense which distinguishes it from a “typical” offense accounted for 

by the advisory sentence set by the legislature. Id. The sentencing range for a 

Level 6 felony is six months to two and one-half years, with the advisory 

sentence being one year. Ind. Code § 35-50-2-7(b). Here, Elzey stole a piece of 

store merchandise by destroying the packaging and attempting to conceal the 

item in his pocket. When confronted by Powell and Clark, Elzey lied to the 

store personnel and attempted to further conceal his criminal act by leading the 

group on a wild goose chase throughout the store. Elzey also attempted to 

covertly dump the merchandise. Although Elzey was compliant when taken to 

the store office, he attempted to deceive the store’s personnel numerous times 
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before admitting his fault. However, the nature of this offense is not overtly 

better or worse than a “typical” theft offense. 

[16] Next, we consider the character of the offender. When considering the 

character of the offender, one relevant factor is the defendant's criminal history. 

Wells, 2 N.E.3d at 131. It is clear from Elzey’s criminal history that he was no 

stranger to criminal activity. Elzey was adjudicated a juvenile delinquent in 

2010 for truancy and incorrigibility. In the same year, Elzey was adjudicated a 

delinquent for committing an act equivalent to an adult battery charge. Due to 

his juvenile adjudications, he was placed on probation until the age of twentyone. In 2012, when he was eighteen, Elzey committed theft, a Class D felony; 

he was released from probation unsatisfactorily due to committing a new 

criminal offense. In the same year, Elzey was convicted of robbery, a Class C 

felony, and sentenced to five years’ imprisonment in the Department of 

Correction with three years suspended to probation. His probation was revoked 

in 2014 and he was ordered to serve one year of his previously-suspended 

sentence. In 2015, which still on probation for robbery, he committed the 

present offense. Elzey’s actions expose his disregard for the law and his failure 

to reform despite any lenient measures previously extended to him. Also, Elzey 

developed this criminal history over a relatively short period through his adult 

life, as he was only twenty-two years of age when sentenced for this offense. 

Given Elzey’s criminal history, coupled with the fact that previous leniency has 

had no effect in curbing his criminal behavior, we conclude a two and one-half 

year sentence is not inappropriate. 
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Conclusion

[17] There was sufficient evidence to support Elzey’s theft conviction. As to his 

sentence, the trial court did not abuse its discretion in sentencing Elzey to two 

and one-half years, and the sentence is not inappropriate given the nature of the 

offense and the character of the offender. Therefore, we affirm Elzey’s 

conviction and sentence.

[18] Affirmed.

Mathias, J., and Brown, J., concur.