### 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 Laura Paul Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIAN A

Malena Shumaker , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. S eptember 26, 2016 Court of Appeals Ca se No. 77A05

- 1603

- CR

- 468 Appeal from the Sullivan Superior Court. The Honorable Hugh R. Hunt, Judge. Cause No. 77D01

- 1512

- CM

- 830



### Darden, Senior Judge

Court of App eals of Indiana | Memorandum Decision 77A05

- 1603

- CR

- 468 | S e p t e m b e r 2 6 , 2 0 1 6 Page 1 of 7

## Statement of the Case

[1] Malena Shumaker appeals her conviction of theft, a Class A misdemeanor. 1 We affirm. 

## Issue

[2] Shumaker presents o ne issue, which we restate as: whether there is sufficient evidence to sustain her conviction for theft as an accomplice. 

## Facts and Procedural History

[3] On December 1, 2015, Shumaker, her boyfriend Michael Myers, and Stephen Boatman stopped at a convenience st ore in Sullivan, Indiana, to get gas oline for their car

. Shumaker and Myers entered the store while Boatman stayed with the car

.

[4] A surveillance camera recorded Shumaker’s actions in the store but did not record any audio

. Shumaker waited until another customer had finished his transaction with the clerk before approaching the counter

. Myers momentarily stepped away from Shumaker and out of the camera’s view. Shumaker tried to exchange a $25 gift card for cash, but the clerk refused.

[5] Next , Myers walked up to the counter and stood next to Shumaker, near the

cas h register. A small red Salvation Army donation bucket sat on the counter

1 Ind. Code § 35

- 43

- 4

- 2 (2014)

. Court of App eals of Indiana | Memorandum Decision 77A05

- 1603

- CR

- 468 | S e p t e m b e r 2 6 , 2 0 1 6 Page 2 of 7in front of the cash register , out of the clerk’s sight

. As Shumaker and the clerk were talking , Myers looked down at the bucket, put his hand on it, and furtively slid it back and forth on the counter until it was close to where he was standing

.

[6] When the clerk turned around to get cigarettes for Shumaker, Shumaker turned to Myers, made eye contact , and said something to him

. At that point, Myers slipped the bucket into his jacket and turned to walk out of the store. As Myers was leaving the store, Shumaker leaned over and onto the counter and was talking to the clerk , whose back was to Shumaker , as she appeared to retrieve another item for Shumaker

. Shumaker paid for the cigarettes and purchased $5 worth of g as oline , and then she left the store

. The three drove away after Boatman put gas oline in the car.

[7] Later , the clerk discovered the donation bucket was missing and called the police. An investigation led to Myers and Shumaker. The State charged Shumaker with theft. The case was tried to the bench, and the trial court determined Shumaker was guilty. The court imposed a sentence , and this appeal followed. 

## Discussion and Decision

[8] Rarely do we have an opportunity to see evidence from the same perspective as the finder of fact, but in this case the primary piece of evidence is State’s Exhibit 1, the surveillance recording. Neverthe less, we cannot observe the demeanor of the parties’ witnesses, which is extrem ely important, and we must be hesitant to overlook the finder of fact ’ s role , therein, in doing so . As a result, w hen an

Court of App eals of Indiana | Memorandum Decision 77A05

- 1603

- CR

- 468 | S e p t e m b e r 2 6 , 2 0 1 6 Page 3 of 7appellant challenges the sufficiency of the evidence to sustain a conviction, we neither reweigh the evidence nor judge the credibility of the witnesses. Wright v. State , 828 N.E.2d 904, 905

- 06 (Ind. 2005). We consider conflicting evidence in the light m ost favorable to the judgment

. Id. at 906. We will affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable finder of fact to find the defendant guilty beyond a reasonable doubt. McHenry v. State , 820 N.E.2d 124, 126 (Ind. 2005).

[9] Shumaker argues the State failed to provide sufficient evidence to establish that she was an active participa nt in the theft of the donation bucket. T o obtain a conviction for theft, t he State was required to prove beyon d a reasonable doubt , that : (1) Shumaker (2) knowingly or intentionally (3) exerted unauthorized control over property o f another person (4) with intent to deprive the other person of any part of its value . Ind. Code § 35

- 43

- 4

- 2

. Myers testified at tria l and admitted to stealing the bucket , claiming that Shumaker had nothing to do with the crime. T he State countered by arguing that Shumaker was guilty of theft as Myers’ accomplice. As st ated by the governing statute: “A person who knowingly or intentio nally aids, induces, or causes another person to commit an offense commits that offense .” Ind. Code § 35

- 41

- 2

- 4 (1977).

[10] In order to 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 common design or purpose to effect the commission of a crime may reasonably be drawn. Vandivier v. State , 822 N.E.2d 1047, 1054 (Ind. Ct. App. 2005), trans. denied . An accomplice need not participate in each and every
Court of App eals of Indiana | Memorandum Decision 77A05

- 1603

- CR

- 468 | S e p t e m b e r 2 6 , 2 0 1 6 Page 4 of 7element of the crime in order to be convicted of it. Berry v. State , 819 N.E.2d 443, 450 (Ind. Ct. App. 2004), trans. denied . Furthermore , it is not necessary for the State to show a defendant was p arty to a preconceived scheme, such as a conspiracy; it must merely demonstrate concerted action or participation in an illegal act. Id.

[11] In determining whether a person aided another in the comm ission of a crime, we consider: (1) presence at the scene of the crime; (2) companionship with another engaged in criminal activity; (3) failure to oppose the crime; and (4) a defendant’s conduct before, during, and after the occurrence of the crime. Garland v. State , 788 N.E.2d 425, 431 (Ind. 2003). A defendant’s mere presence during the commission of the crime or failure to oppose the crime are, by themselves, insufficient to establish accomplice liability. Ransom v. State , 850 N.E.2d 491, 496 (Ind. Ct. App. 2006).

[12] In this case, it is undisputed that Shumaker wa s present during the theft. She entered the convenience store with her companion, Myers, and engaged in a conversation with the c lerk while Myers furtively moved the donation bucket back and forth along the counter until it was near him and out of the sig ht of the clerk

. It is obvious from the video that just before Myers slipped the bucket into his jacket, Shumaker turned to Myers , made eye contact, and had a verbal exchange with him. After Myers had completed the theft, Shumaker did not extricate herself fr om the situation, disassociate herself from Myers , or otherwise oppose the crime . To the contrary, from viewing the video she appears that she may have distracted the clerk by leaning over and onto the
Court of App eals of Indiana | Memorandum Decision 77A05

- 1603

- CR

- 468 | S e p t e m b e r 2 6 , 2 0 1 6 Page 5 of 7counter and drawing attention to herself, t hus allowing Myers to leave the store unnoticed. Finally , Shumaker got in to the car with Myers and Boatman and drove away.

[13] Shumaker argues that Myers admitted at trial that he stole the donation bucket , and he claimed he did it without Shumaker’ s prior kn owledge. The trial court was the finder of fact, and the task of weighing credibility is reserved to it alone. The court was not required to believe Myers, who also stated at trial that his memory of the night in question was hazy because he had been und er the influence of contro lled substances

. Myers also stated he still loved Shumaker. In summary, crediting Myers’ testimony would require us to reweigh the evidence, which our standard of review forbids.

[14] In any event, arguably , it may appear that Shumak er had no advance knowledge of the crime, but , the video strongly suggests that she became acutely aware of the crime as it was developing and ultimately occurred and it could be reasonably const rued that she participated in it

. Therefore, t he evidence is sufficient to establish that she knowingly took concerted action to participate in the crime of theft as an accomplice. See Smith v. State , 809 N.E.2d 938, 945 (Ind. Ct. App. 2004) , (evidence sufficient to sustain conviction for resisting law enforcement with a vehicle as an accomplice because, even though defendant was a passenger in the car, he did not ask the driver to stop and removed the license plate from the rear window in an attempt to hinder police identification), trans. denied

.

Court of App eals of Indiana | Memorandum Decision 77A05

- 1603

- CR

- 468 | S e p t e m b e r 2 6 , 2 0 1 6 Page 6 of 7[15] Shumaker cites Pennington v. State , 459 N.E.2d 764 (Ind. Ct. App. 1984), in support of her claim, but that case is distinguishable. In that case, a panel of this Court found the evidence insufficie nt to support a conviction of theft as an accomplice because there was no evidence that the defendant distracted the store employee while her brother left the store with a stolen radio. By contrast, in this case the surveillance video clearly showed Shuma ker making eye contact with Myers and saying something to him just before he slid the donation bucket into his jacket. Next, Shumaker leaned over and onto the counter and engaged in a conversation with the clerk as Myers prepared to leave the store, givin g the appearance of providing cover or a distraction to prevent the detection of the crime and/or his participation

. 

## Conclusion

[16] For the foregoing reasons, we affirm the judgment of the trial court.

[17] Affirmed.
Baker, J., and Mathias, J., concur.

Court of App eals of Indiana | Memorandum Decision 77A05

- 1603

- CR

- 468 | S e p t e m b e r 2 6 , 2 0 1 6 Page 7 of 7