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

Barbara J. Simmons

Oldenburg, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Esmeralda Villarreal,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 29, 2016

Court of Appeals Case No.

49A02-1507-CR-923

Appeal from the Marion Superior 

Court

The Honorable Steven J. Rubick, 

Magistrate

Trial Court Cause No.

49G07-1501-CM-2132

Crone, Judge.

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Case Summary

[1] While her husband and another man loaded a pickup truck with scrap radiators 

from a factory’s dumpster without the factory owner’s permission, Esmeralda 

Villarreal sat in the truck cab facing the parking lot entrance. A factory

employee drove into the parking lot, saw the theft in progress, and blocked the 

entrance with his vehicle. Police officers arrested Villarreal and the others at 

the scene.

[2] The State alleged that Villarreal attempted to commit class A misdemeanor 

theft by loading metal into the truck. At trial, Villarreal moved for involuntary 

dismissal based on the lack of evidence that she had personally loaded metal 

into the truck. The State argued that she had acted as a lookout for her 

husband and the other man and therefore was guilty as an accomplice. The 

trial court agreed.

[3] On appeal, Villarreal argues that her conviction should be reversed because the 

State failed to prove that she loaded metal into the truck. The State argues that 

the evidence is sufficient to sustain her conviction as an accomplice. We agree 

with the State and therefore affirm.

Facts and Procedural History

[4] On the morning of January 16, 2015, C & R Racing employee Robert 

Worthington returned to his company’s factory in Indianapolis after making a 

delivery. He saw a pickup truck parked next to a dumpster, with the truck cab

facing the parking lot entrance. Worthington saw one man lifting scrap 

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-923 | February 29, 2016 Page 2 of 7
radiators out of the dumpster and another man loading them into the truck.1

 

He also saw Villarreal sitting in the truck’s passenger seat. Worthington 

blocked the parking lot entrance with his vehicle “so they couldn’t leave” and 

went inside the factory to alert the owner. Tr. at 10. The owner went outside 

to confront Villarreal and the two men, one of whom was her husband. Police 

officers arrived within approximately five minutes and arrested Villarreal and 

her companions.

[5] The State alleged that Villarreal committed class A misdemeanor attempted 

theft by loading metal into the truck. At Villarreal’s bench trial, Worthington 

and the arresting officer testified for the State. Worthington testified to the 

foregoing facts, and the officer testified that Villarreal was sitting in the pickup 

cab when she arrived at the factory. After the State rested, Villarreal moved for 

involuntary dismissal under Indiana Trial Rule 41(B) based on the lack of 

evidence that she had personally loaded metal into the truck. The State argued

that Villarreal “was actually there acting as a lookout” and that “[s]he doesn’t 

have to actually be loading metal physically into the truck to get an accomplice 

to the attempted theft[.]” Id. at 21. The trial court denied the motion for 

dismissal.

1 Worthington’s testimony suggests that C & R Racing sells scrap radiators. See Tr. at 10 (“Q: ... [D]o you 

know what the average cost of something like that is when it’s stolen? A: Uh, it just depends on what size 

radiator they took from all that, ’cause they vary from prices.”).

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[6] Villarreal then testified on her own behalf, stating that her truck had broken 

down and she asked her husband to call one of his friends for a ride to work. 

The pickup truck driver gave them a ride and told them that he “needed to go 

somewhere first.” Id. at 22. According to Villarreal, the driver stopped at C & 

R Racing and started loading radiators into the truck, and she “told [her] 

husband [they] needed to get out[t]a here.” Id. Villarreal stated that she and 

her husband started walking away but were confronted by a man with a gun, 

who hit her and pushed them toward the truck.

[7] After Villarreal rested, the State argued that Villarreal “was sitting there as a 

lookout and when things got rough, she fabricated this story.” Id. at 26. The 

trial court stated that it was “convinced that Ms. Villarreal was tacitly involved 

in this. She may at a later time to abandon the attempt [sic] but on the evidence 

is sufficient to sustain a conviction for attempt[ed] theft.” Id. at 30. The court 

found her guilty and sentenced her to time served. This appeal ensued.

Discussion and Decision

[8] Villarreal asserts that the evidence is insufficient to support her conviction. 

“When reviewing the sufficiency of evidence, we do not reweigh evidence or 

judge witness credibility; rather, we consider only the evidence and reasonable 

inferences most favorable to the judgment.” Hudson v. State, 20 N.E.3d 900, 

903 (Ind. Ct. App. 2014). “This review respects the factfinder’s exclusive 

province to weigh conflicting evidence.” Id. (citation and quotation marks 

omitted). “We must affirm if a reasonable trier of fact could find the defendant 

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guilty beyond a reasonable doubt based upon the probative evidence and 

reasonable inferences drawn from the evidence presented.” Id.

[9] Class A misdemeanor theft is the knowing or intentional exertion of 

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

other person of any part of its value or use. Ind. Code § 35-43-4-2(a). “A 

person attempts to commit a crime when, acting with the culpability required 

for commission of the crime, the person engages in conduct that constitutes a 

substantial step toward commission of the crime. An attempt to commit a 

crime is a felony or misdemeanor of the same level or class as the crime 

attempted.” Ind. Code § 35-41-5-1(a).

[10] In the charging information, the State alleged that Villarreal

did attempt to commit the crime of Theft, which is to knowingly 

or intentionally exert unauthorized control over the property of C 

& R Racing, to-wit: metal, with the intent to deprive C & R 

Racing of any part of the use or value of the property, by 

engaging in conduct which constitutes a substantial step toward 

the commission of said crime of Theft, that is: loading the metal 

into a truck[.]

Appellant’s App. at 12. Villarreal argues that “[t]he State’s witnesses both 

testified that they never saw her outside of the pickup truck until she was 

arrested” and that “[h]er conduct of sitting in the pickup truck fails to meet the 

type of action necessary to find that she committed a substantial step in this 

instance.” Appellant’s Br. at 9-10.

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[11] The State argues that the evidence is sufficient to sustain Villarreal’s conviction

as an accomplice. Indiana Code Section 35-41-2-4 provides, “A person who 

knowingly or intentionally aids, induces, or causes another person to commit 

an offense commits that offense, even if the other person: (1) has not been 

prosecuted for the offense; (2) has not been convicted of the offense; or (3) has 

been acquitted of the offense.” “It is well established that a person who aids 

another in committing a crime is just as guilty as the actual perpetrator.” Green 

v. State, 937 N.E.2d 923, 927 (Ind. Ct. App. 2010), trans. denied (2011).

[12] “To be convicted as an accomplice, it is not necessary for a defendant to have 

participated in every element of the crime.” Id. Nevertheless, mere 

acquiescence in the commission of the offense and mere presence at the crime 

scene are insufficient to establish accomplice liability. Peterson v. State, 699 

N.E.2d 701, 706 (Ind. Ct. App. 1998). “[P]resence may be considered along 

with the defendant’s relation to the one engaged in the crime and the 

defendant’s actions before, during, and after the commission of the crime.” 

Green, 937 N.E.2d at 927; see also Peterson, 699 N.E.2d at 706 (“The particular 

facts and circumstances of each case must be considered in determining 

whether a person participated in the commission of an offense as an 

accomplice.”). “[T]o sustain a conviction as an accomplice, there must be 

evidence of the defendant’s affirmative conduct, either in the form of acts or 

words, from which an inference of a common design or purpose to effect the 

commission of a crime may be reasonably drawn.” Peterson, 669 N.E.2d at 706. 

“[O]ne may be charged as a principal yet convicted on proof that he or she 

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aided another in the commission of a crime.” Wise v. State, 719 N.E.2d 1192, 

1198 (Ind. 1999).

[13] The State’s evidence established that while her husband and another man 

loaded radiators into the pickup truck, Villarreal was sitting in the truck cab

facing the parking lot entrance that Worthington fortuitously blocked with his 

vehicle. She was still inside the cab when the police arrived approximately five 

minutes later. The State argues that because Villarreal’s husband was involved, 

“it is a reasonable inference that [she] would be a lookout to prevent him from 

being caught.” Appellee’s Br. at 10. We agree. Moreover, Villarreal’s conduct 

supports an inference of a common design or purpose to effect the commission 

of theft by her husband. The trial court credited the State’s version of events 

over Villarreal’s version, and we may not second-guess that credibility 

determination or reweigh the evidence on appeal. We conclude that a 

reasonable trier of fact could find Villarreal guilty as an accomplice beyond a 

reasonable doubt based on the probative evidence and the reasonable inferences 

drawn therefrom. Accordingly, we affirm her conviction.

[14] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

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