Chrys Scherer v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 29 2020, 8:57 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Auger Curtis T. Hill, Jr. Franklin, Indiana Attorney General of Indiana

Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Chrys Scherer, September 29, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2797 v. Appeal from the Johnson Circuit Court State of Indiana, The Honorable Andrew S. Appellee-Plaintiff. Roesener, Judge Trial Court Cause No. 41C01-1811-F6-600

Bradford, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2797| September 29, 2020 Page 1 of 6

Case Summary [1] In October of 2019, Chrys Scherer was convicted of Level 6 felony theft and

subsequently sentenced to 730 days of incarceration with 365 days suspended to

probation. Scherer contends that the State presented insufficient evidence to

sustain her conviction. We affirm.

Facts and Procedural History [2] On the evening of November 7, 2018, Scherer was employed at the Greenwood

Stein Mart, working in the men’s and accessories departments of the store.

After 4:00 p.m., only one register was open near the entrance and exit of the

store. At approximately 5:40 p.m., a female wearing a black jacket (the

“woman in black”) and a female wearing a gray jacket (the “woman in gray”)

entered Stein Mart carrying bags. The woman in black entered the men’s

department and began removing items from racks and placing them into her

cart. As the woman in black pushed her cart into the women’s department, she

encountered Scherer, and the two women appear to converse before leaving the

area. A few minutes later, the woman in black exited the store carrying multiple

full bags without stopping at the register to pay. At the same time the woman in

black was exiting the store, Scherer walked toward the register, moving her

hands in the air and began conversing with the cashier. Scherer walked away

from the register and began talking on her mobile telephone. Moments later, the

woman in black reentered the store without the bags with which she had left.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2797| September 29, 2020 Page 2 of 6 [3] At approximately 5:49 p.m., Scherer and the woman in gray were both walking

in the accessories department when Scherer turned around and began talking to

the woman in gray. Minutes later, the woman in gray exited the store carrying

two full bags without stopping at the register to pay. At the same time, Scherer

again walked toward the cash-register area moving her hands in the air. A few

minutes later, the woman in gray reentered the store without the bags with

which she had left. [4] Scherer began working the cash register at approximately 6:34 p.m. After

another employee left from behind the register, Scherer entered the hold room

and removed a leopard-print jacket. Scherer walked into the accessories

department carrying the jacket, only to return to the cash-register area carrying

an empty hanger and talking on her mobile telephone. Once Scherer returned to

the cash register, the woman in gray approached the register carrying a pile of

clothing and a piece of wall art. The woman in gray placed the pile of clothing

on the register counter and exited the store with the piece of wall art without

paying. Scherer removed the security tags from the pile of clothing. Upon the

woman in gray’s reentry into the store without the wall art, Scherer gave her the

pile of clothing, and the woman in gray carried it into the accessories

department where she met up with the woman in black. [5] Later, Scherer removed several items including a white vase and placed them in

a cardboard box on the floor of the men’s department. Around that time, the

women in gray and black enter the men’s department, and while standing near

the cardboard box, Scherer leaned towards the woman in gray and conversed

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with her. Some time after the three women had left the men’s department, the

woman in black returned and reached into the cardboard box several times,

removing items and placing them into her cart. After leaving the men’s

department, the woman in black pushed her cart into the women’s department

dressing-room area. The white vase was ultimately found inside a bag in the

women’s dressing room at closing time. At approximately 7:37 p.m., the

woman in gray exited the dressing-room area carrying multiple full bags and

ultimately exited the store with the bags without paying. Stein Mart’s asset-

protection manager Diana Floyd was notified about the possible shoplifting by

the store’s manager. Floyd reviewed the security footage, the inventory, and

purchase history. Floyd determined that the leopard-print jacket and piece of

wall art were no longer inside the store, and neither had been purchased. [6] On November 15, 2018, the State charged Scherer with Level 6 felony theft. On

October 7, 2019, a bench trial was held, after which the trial court found

Scherer guilty as charged. On October 28, 2019, the trial court sentenced

Scherer to 730 days of incarceration with 365 days suspended to probation.

Discussion and Decision [7] Scherer contends that the State presented insufficient evidence to sustain her

Level 6 felony theft conviction. When reviewing the sufficiency of evidence to

support a conviction, we consider only probative evidence and reasonable

inferences supporting the factfinder’s decision. Young v. State, 973 N.E.2d 1225,

1226 (Ind. Ct. App. 2012), trans. denied. It is the role of the factfinder, not ours,

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to assess witness credibility and weigh the evidence. Id. We will affirm a

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

crime proven beyond a reasonable doubt.” Id. To convict Scherer of Level 6

felony theft, the State was required to prove that Scherer or one of her

accomplices knowingly or intentionally exerted unauthorized control over

property of Stein Mart, with intent to deprive Stein Mart of any part of its value

or use, and Scherer had a prior theft conviction. Ind. Code § 35-43-4-2(a)(1).1 [8] We conclude that the State produced sufficient evidence to sustain Scherer’s

Level 6 felony theft conviction. The record indicates that Scherer and the

women in black and gray worked in concert to deprive Stein Mart of its

merchandise. Throughout the security footage, Scherer can be seen conversing

with the two women. On two different instances, as one of the women exited

the store carrying full shopping bags without paying, Scherer moved her hands

in the air and walked towards the cashier in what can reasonably be inferred

was an attempt to distract the cashier. Moreover, after being handed a pile of

clothing from the woman in gray, Scherer removed security tags from the

clothing without it being purchased, which is contrary to store policy, and gave

it back to the woman in gray, who eventually left the store with multiple full

shopping bags without paying. Finally, Scherer removed a leopard-print jacket

1 We note that contrary to what Scherer seems to argue, it is immaterial as to whether Scherer was charged as the principal or accomplice in this case, because a defendant may be charged as the principal yet convicted as an accomplice. See Whittle v. State, 542 N.E.2d 981, 991 (Ind. 1989), overruled on other grounds in Scisney v. State, 701 N.E.2d 847, 848 (Ind. 1998) (“[T]here is no distinction between the responsibility of a principal and an accomplice. Thus, one may be charged as a principal yet convicted as an accomplice.”) (cleaned up).

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from the hold room, took it to a location outside the view of the security

cameras, and returned to the cash-register area carrying only the empty hanger

and talking on her mobile telephone. Floyd later determined that that jacket

had neither been purchased nor could it be located in the store. We agree with

the trial court’s characterization of the crime, when it stated, “I watched the

video and listened to the evidence carefully. It was clear to me that you had

orchestrated an attempt here to use other folks to come in and steal from your

employer. It wasn’t even close, [Scherer], to be honest with you.” Tr. Vol. II p.

109. Given this evidence, Scherer has failed to establish that no reasonable

factfinder could find the elements of theft beyond a reasonable doubt. [9] The judgment of the trial court is affirmed.

May, J., and Vaidik, J., concur.

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