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: ATTORNEYS FOR APPELLEE:

SUSAN D. RAYL GREGORY F. ZOELLER

Smith Rayl Law Office, LLC Attorney General of Indiana

Indianapolis, Indiana

RICHARD C. WEBSTER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

GUY CUMMINGS, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1205-CR-430

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Reuben B. Hill, Judge

Cause No. 49F18-1112-FD-87204

December 28, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
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Case Summary

Guy Cummings appeals his conviction for Class D felony theft. He argues that 

the evidence is insufficient to prove that he exerted unauthorized control over Christmas 

gifts taken from the trunk of an unlocked car and that he did not intend to deprive the 

owner of the value or use of the property. Finding the evidence sufficient, we affirm. 

Facts and Procedural History

The facts most favorable to the judgment reveal that at approximately 12:45 a.m. 

on December 13, 2011, Indianapolis Metropolitan Police Department Officer Justin 

Musser was parked in his marked patrol car in the Mars Hill area of Indianapolis

observing traffic violations. Officer Musser saw a male, later identified as Cummings, 

walking down Perry Street. “[A]ll of a sudden,” Cummings jumped a fence into the yard 

of a residence and disappeared from Officer Musser’s sight. Tr. p. 5. After about a 

minute, Cummings re-appeared carrying two white shopping bags, which he carried 

behind the detached garage into the alley and placed next to the garage. Cummings was 

not carrying anything when Officer Musser first saw him. Cummings then walked back 

into the yard and again disappeared from Officer Musser’s sight. Cummings shortly reappeared carrying two more bags to the back of the garage. Suspicious, Officer Musser 

drove over to Cummings’ location to investigate. 

As Officer Musser drove toward the alley, Cummings “still had the two bags and . 

. . dropped them.” Id. at 7. “About that time,” Officer Musser pulled into the alley, at 

which point Cummings saw him and fled. Id. Officer Musser activated his lights to 

identify himself, but Cummings continued to flee through several yards and disappeared 
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from Officer Musser’s view. Officer Musser got out of his car and yelled for Cummings 

to stop, but Cummings was gone. Officer Musser radioed to other police units in the area 

that Cummings was fleeing and gave a description of Cummings as well as his direction 

of flight. 

Officer Eric Forestal was patrolling the area when he heard Officer Musser’s radio 

call. Officer Forestal apprehended an out-of-breath Cummings and took him into 

custody. Officer Musser went to their location and identified Cummings. 

Officer Musser then returned to the alley where Cummings had stashed the bags. 

Detective Jeremiah Lokan also came to the scene. He and Officer Musser spoke with the 

homeowner, Jessie Logston. Logston went to the alley behind his garage where 

Cummings had placed the bags. Logston identified the contents of the bags—blankets 

and bottles of Tide detergent—as belonging to him. Logston explained that they were 

Christmas gifts for his son and that he kept them in the trunk of his unlocked vehicle. 

Logston said that he did not give anyone permission to enter his car and take his property. 

Logston recognized Cummings from the neighborhood but did not know who he was. 

The State charged Cummings with Class D felony theft, Class A misdemeanor 

resisting law enforcement, and Class B misdemeanor unauthorized entry of a motor 

vehicle. A bench trial was held. Cummings testified in his own defense that as he was 

walking by Logston’s house, “the trunk was open” and “there was [sic] bags sitting by 

the back of the car.” Id. at 36. So, Cummings “jumped the fence to see what it was.” Id. 

Cummings said that he “thought about taking the objects,” but he “consciously set those 

bags down and walked away from them on [his] own with no help from any officer.” Id.
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at 37, 40. Cummings admitted to fleeing from Officer Musser and that it “was a bad 

decision to pick up anything that didn’t belong to me, a very bad decision.” Id. at 37.

The trial court found Cummings guilty of all three charges and sentenced him to 

910 days for theft, 365 days for resisting law enforcement, and 180 days for unauthorized 

entry of a motor vehicle, to be served concurrently.

Cummings now appeals his theft conviction only. 

Discussion and Decision

Cummings contends that the evidence is insufficient to support his conviction for 

Class D felony theft. When reviewing the sufficiency of the evidence to support a 

conviction, we must consider only the probative evidence and reasonable inferences 

supporting the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not 

assess witness credibility or reweigh the evidence. Id. When confronted with conflicting 

evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm the 

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

beyond a reasonable doubt.” Id. (quotation omitted). It is not necessary that the evidence 

overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is 

sufficient if an inference may reasonably be drawn from it to support the judgment. Id. 

Circumstantial evidence may support a theft conviction. Rogers v. State, 902 N.E.2d 

871, 875 (Ind. Ct. App. 2009).

In order to convict Cummings of theft, the State had to prove that Cummings 

knowingly exerted unauthorized control over Logston’s property with intent to deprive 

Logston of any part of its value or use. Ind. Code § 35-43-4-2(a); Appellant’s App. p. 19.
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Cummings argues that the evidence is insufficient to support his conviction because he 

“was no longer exerting control over the bags” when he was approached by police and 

“the bags were always on Mr. Logston’s property.” Appellant’s Br. p. 8. 

To “exert control over property” means to “obtain, take, carry, drive, lead away, 

conceal, abandon, sell, convey, encumber, or possess property.” Ind. Code § 35-43-4-

1(a). A person’s control over the property of another person is “unauthorized” if it is 

exerted without the other person’s consent. I.C. § 35-43-4-1(b)(1). The record shows 

that Logston had Christmas presents in the trunk of his unlocked car and did not give 

anyone permission to enter his car and take the gifts. Officer Musser saw Cummings 

enter Logston’s property empty-handed and then disappear from his sight. Within a 

minute, Cummings re-appeared carrying two white shopping bags, which he carried 

behind the garage and placed next to the garage. Cummings again disappeared from 

Officer Musser’s sight but shortly re-appeared carrying two more bags to the back of the 

garage. From Cummings’ actions, the trier of fact could reasonably conclude that 

Cummings knowingly exerted unauthorized control over Logston’s property by removing 

the property from the trunk of Logston’s car and carrying it behind Logston’s garage. 

Even assuming that Cummings had already placed the bags down when he first spotted 

Officer Musser and began to flee, Cummings’ actions in removing the property from the 

trunk of Logston’s car and hiding it behind the garage support a reasonable inference that 

Cummings intended to deprive Logston of the use and value of his property.

As for Cummings’ argument that he never removed any of the items from 

Logston’s property, we note that one cannot abandon an attempt to commit theft after the 
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theft has already been completed. Finley v. State, 525 N.E.2d 608, 609 (Ind. 1988). 

When Cummings removed the items from the trunk of Logston’s car, he had already 

completed the crime of exercising control over Logston’s property. See id. (concluding 

that the defendant had already completed the crime of theft when he walked out the back 

door of a house carrying a television set and, upon realizing that a police officer was 

watching him, placed the television set on top of a trash container). Here, Cummings was 

interrupted by Officer Musser before he could remove any of the property from behind 

Logston’s garage. Accordingly, the fact that Officer Musser interrupted Cummings 

before he could remove the items from Logston’s property is immaterial. The evidence is 

sufficient to support Cummings’ theft conviction.

Affirmed. 

BAILEY, J., and BROWN, J., concur.