Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2344 | July 16, 2020 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.

A TTORNEY FOR A PPELLANT Ann M Sutton Indianapolis, IN A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Melva Wright , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff July 16, 2020 Court of Appeals Case No. 19A

- CR

- 2344 Appeal from the Marion Superior Cour t The Honorable Charnette D. Garner, Judge The Honorable Ronnie Huerta, Magistrate Trial Court Cause No. 49G09

- 1810

- F6

- 33847

A ltice , Judge
.Court of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2344 | July 16, 2020 Page 2 of 7 Case Summary

[1] Melva Wright appeals her conviction of theft as a Level 6 felony. She raises two issues on appeal:

I. Whether the State presented sufficient ev idence to convict her of t heft; and

II. Whether her 270

- day sentence is in appropriate in light of the nature of the offense and her character

.

[2] We affirm

.
Facts & Procedural History

[3] Sometime in August 2018, Wright began living at Herbert Smith’s residence. The two had not seen each other in many years , having originally met at church where Smith was an assistant pastor. After seeing Wright on the street and learning that she was homel ess, Smith offered her a place to stay

. Wright lived with Smith for about three months and during that time he bought her food and clothing but did not give her a key.

[4] Smith owned a Samsung smart watch , which he received as part of a package deal with his phone and tablet. He occasionally wore the watch, but most of the time it remained on a computer stand next to his bed. One day he noticed the watch was missing , so he questioned Wrigh t . She denied taking it, but afterCourt of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2344 | July 16, 2020 Page 3 of 7 repeated questioning , Wright admitted to pawning it. Smith had not given Wright permission to do anything with the watch.

[5] Wright took Smith to Cash America where she had pawned the watch. After locating his watch, Smith was unable to obtain the watch from Cash America until law enfor cement arrived on scene and made a report. An investigation revealed that the watch matched the serial number of Smith’s watch

. Further more, identification information and fingerprint copies taken when the watch was pawned matched those of the seller, Wrig ht.

[6] On October 3, 2018 , the State charged Wright with C lass A misdemeanor theft and Level 6 felony theft. After a jury trial, Wright was convicted of a Class A misdemeanor theft, which was enhanced to Level 6 felony theft based on prior convictions of the ft and robbery

. The court then sentenced Wright to 270 day s in jail. She now appeals.

Discussion & Decision

I. Sufficiency of Evidence

[7] Wright argues that the S tate failed to show sufficient evidence to convict her of theft

. The standard of review for such a claim is well settled. A review ing court must consider only the probative evidence and reasonable inferences supporting the conviction and should not assess witness credibility or reweigh the evidence.
Drane v. State , 867 N.E. 2d 144, 146 (Ind. 2007). The evidence is sufficient if anCourt of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2344 | July 16, 2020 Page 4 of 7 inference may be reasonably drawn from it to support the conviction. Id. at 147. Further, a conviction should be upheld unless, “no reasonable fact

- finder could find the elements of the crime proven beyond a reasonable doubt.” Id . at 146

- 47.

[8] In order to prove a conviction for theft, the State was required to show, beyond a reasonable doubt, that Wright knowingly or intentionally exerted unauthorized control over Smith ’s Samsung smart watch with the intent to deprive Smith of any part of its value or use. See Ind. Code § 35

- 43

- 4

- 2(a).

[9] Wright contends that there is insufficient evidence to prove that she pawned the watch without Smith’s approval

. However, she does not dispute that she pawned the watch, as evidenced by her identification and fingerprint obtained from the pawn store. She claims only that Smith’s testimony is insufficient to show that she did not have permission to pawn the watch.

[10] I t is not this court’s responsibility to reweigh evidence or assess witness credibility , specifically Smith’s credibility. Here, Smith testified that he did not give Wright permission to have his watch or do anything with it , expressly testifying that she did not have permission to pawn the watch. Smith housed Wright because she was in need of a place to s tay and provided her with food and clothing. Upon discover ing that his watch had disappeared, Smith questioned Wright as to its whereabouts and she admitted to pawning it. At noCourt of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2344 | July 16, 2020 Page 5 of 7 point did Smith give Wright permi ssion to do so. For these reasons, we conclude that the State presented sufficient evidence to convict Wright of t heft.

II. Sentencing

[11] Wright contends that her 270

- day sentence that is to be executed in jail is inap p ropriate. Sentencing is principally a discretionary function, and therefor e the trial court’s judgement should receive considerable deference. Cardwell v.
State , 895 N.E.2d 1219 , 1223 (Ind. 2008) . Pursuant to Indiana Appellate Rule 7(b), an a ppellat e c ourt may revise a sentence if it finds that the sentence is “inappropriate in l ight of the nature of the offense and the character of the offende r.” “T he question is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Fonner v.
State , 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). When considering appropriateness, there are myriad of factors to take into account and ultimately there is no right an swer in determining a proper sentence. Cardwell , 895 N.E.2d
at 1224. Furthermore, the defendant has the burden of persuading us that his or her sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind

. 2006).

[12] The starting point for an appropriat eness analysis is to look at the advisory

sentence the legisl ature has selected for the crime committed and compare it to the sentence imposed. Connor v. State , 58 N.E.3d 215, 220 (Ind. Ct. App. 2020). The sentencing range for a Level 6 felony is between six months and two and aCourt of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2344 | July 16, 2020 Page 6 of 7 half years, with an advisory sentence of one year. Ind. Code. § 35

- 50

- 2

- 7 (b). Wright acknowledges that her sentence is below the advisory sentence but argues that it was still too harsh given the petty nature of the offense and the steps she is actively taking to improve her character

.

[13] We begin by acknowledging that the nature of the offense is not particularly egregious, except that she chose to steal from someone who considered her a friend and had been helping her in a time of need. By doing so, she violated Smith’s trust and the sanctity of his home. She also denied taking it when Smith confronted her about it, only admitting it after his repeated questioning. We find nothing about the nature of the offense that warrants a r eduction in her

sentence.

[14] When considering the character of the offender, we look at “substantial virtuous traits or persistent examples of good character.” Moon v. State , 110 N.E.3d 1156, 1162 (Ind. Ct. App. 2018). Further, “one relevant fact is the defen dant’s criminal history.” Denham v. State , 142 N.E.3d 514, 517 (Ind. Ct. App. 2020).

[15] The record shows that Wright has a n extensive criminal history

. She has at least eight prior misdemeanor convictio ns, and five prior felony convictions. These crimes incl ude theft , prostitution , resisting law enforcement, robbery, and

arson. While many of her convictions are dated, we observe that her most recent was for a theft committed less than a year before the current incident andCourt of Appeals of Indiana | Memorandum Decision 19A

- CR

- 2344 | July 16, 2020 Page 7 of 7 shortly after her release from serving a lengthy sentence for Class B felony

arso n.

[16] Wright asserts that her efforts in the months leading up to the sen tencing to improve her self, taking classes at Ivy Tech and applying for housing, reflect highly of her character. W hile we commend her on her recent efforts to improve her character , her past convictions cannot be ignored. In light of her criminal history and her failure to appear in front of the trial court on multiple occasions , Wright’s less than advisory sentence is not inappropriate.

[17] Wright has failed to show that her sentence of 270 days in jail is inappropr iate in light of the nature of the offense and her character

.

[18] Judgment affirmed.

Bailey, J. and Crone, J., concur.