Rufus Wehgar v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 30 2018, 9:56 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rufus Wehgar, August 30, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-154 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David J. Certo, Appellee-Plaintiff Judge Trial Court Cause Nos. 49G12-1507-CM-25564 49G12-1605-CM-17576

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-154 | August 30, 2018 Page 1 of 5

Case Summary [1] Rufus Wehgar appeals his convictions, following a bench trial, for two counts

of class A misdemeanor theft. He contends that the State presented insufficient

evidence to support his convictions. Finding the evidence sufficient, we affirm.

Facts and Procedural History [2] On July 20, 2015, Wehgar wheeled his bicycle into a Walmart store in

Indianapolis. He went to the rear of the store where new bicycles are located

and bent down as if trying to repair his bicycle’s tires. He then left his bicycle

and proceeded to other areas of the store and selected merchandise. He

returned to his bicycle with a backpack and other new merchandise. He

summoned a Walmart employee, who removed a new bicycle from the bicycle

rack. Wehgar later put his own bicycle on the rack and removed the tags from

the new bicycle. He walked with the new bicycle, the backpack, and the other

new merchandise to the front of the store, past all points of sale, and through

the store’s doors. Outside the doors, he was confronted by two Walmart loss-

prevention associates who escorted him to the store’s office. Wehgar provided

identification that belonged to his brother, and then tried to leave the office but

was prevented from doing so by the loss-prevention associates. Wehgar signed

a do-not-return notice stating that he was prohibited from returning to the

property. A police officer was summoned to the store and arrested Wehgar.

The State subsequently charged Wehgar with one count of class A

misdemeanor theft.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-154 | August 30, 2018 Page 2 of 5 [3] On May 9, 2016, Wehgar returned to the same Walmart store. He selected

merchandise including wireless speakers, earphones, and bicycle accessories.

He removed the manufacturer’s packaging from several of the items, and then

placed the items in a backpack that he had brought into the store. He went to

another department of the store, selected additional items, and proceeded to the

front of the store to a cash register. He paid for the newly selected items but did

not pay for the items that were concealed in the backpack. After he walked past

all final points of sale without paying for the concealed items, Wehgar was

confronted by loss-prevention associates, taken to the office, and subsequently

arrested. The State charged Wehgar with one count of class A misdemeanor

theft and one count of class A misdemeanor trespass. [4] Following a consolidated bench trial, the court found Wehgar guilty as

charged.1 The trial court imposed a suspended one-year sentence and ordered

Wehgar not to return to any Walmart in Marion County during that year. This

appeal ensued.

Discussion and Decision [5] Wehgar contends that the State presented insufficient evidence to support his

convictions for class A misdemeanor theft. When reviewing a claim of

insufficient evidence, we neither reweigh the evidence nor assess witness

credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the

1 Wehgar does not appeal his trespass conviction.

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evidence and reasonable inferences drawn therefrom that support the

convictions, and will affirm if there is probative evidence from which a

reasonable factfinder could have found the defendant guilty beyond a

reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

enough to support the convictions, then the reviewing court will not disturb it.

Id. at 500. [6] To convict Wehgar of class A misdemeanor theft, the State was required to

prove that he knowingly or intentionally exerted 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). Regarding the first count of theft,

the State presented the testimony of a Walmart asset protection associate who

stated that she observed surveillance video of Wehgar entering the store with

his own bicycle. He subsequently removed a new bicycle from the rack, put his

bicycle on the rack, removed the tags from the new bicycle, and walked past all

points of sale and out the store’s doors without paying for the new bicycle or

other new merchandise that was in his possession. [7] Regarding the second count of theft, the State presented testimony from the

same Walmart asset protection associate who stated that Wehgar returned to

the store on a subsequent date, and she observed him selecting several items of

merchandise including wireless speakers, earphones, and bicycle accessories.

He removed the manufacturer’s packaging from several items and concealed

the items in a large backpack that he had brought with him. He walked to the

front of the store to a cashier, paid for other merchandise, but did not pay for

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any of the merchandise that was concealed in the backpack. He then walked

past all points of sale without any attempt to pay for the items in the backpack. [8] As for both counts, Wehgar simply directs us to his self-serving testimony in

which he claimed that he did not intentionally exert unauthorized control over

the bicycle (claiming that he was just taking it to the front of the store to test it

out based upon the advice of an employee) or the other merchandise (claiming

that he had planned to steal the items but had a change of heart before he was

caught). However, it is well settled that a defendant’s intent may be based

solely on circumstantial evidence, Purvis v. State, 87 N.E.3d 1119, 1124 (Ind. Ct.

App. 2017), and may be inferred from his conduct and the natural and usual

sequence to which such conduct logically and reasonably points. Long v. State,

867 N.E.2d 606, 614 (Ind. Ct. App. 2007). On each occasion, Wehgar removed

tags and packaging and passed all points of sale without paying for

merchandise. Based on the evidence presented, the trier of fact could

reasonably infer that Wehgar knowingly or intentionally exerted unauthorized

control over Walmart’s property with the intent to deprive Walmart of its value

or use. We decline Wehgar’s invitation to reweigh the evidence or reassess

witness credibility, and we affirm his convictions. [9] Affirmed.

Najam, J., and Pyle, J., concur.

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