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Kimmel v. State

Court of Appeals of Indiana

February 3, 2015

Mark A. Kimmel, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

Appeal from the Martin Circuit Court. Honorable Lynne El. Ellis, Judge. Cause No. 51C01-1101-FD-003.

ATTORNEY FOR APPELLANT: Steven E. Ripstra, Ripstra Law Office, Jasper, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana.

Friedlander, Judge. Kirsch, J., and Crone, J., concur.

MEMORANDUM DECISION

Friedlander, Judge.

[¶1] Mark A. Kimmel (Kimmel) appeals his conviction of Theft,[1] a class D felony, presenting the following restated issues for review:

1. Must the conviction be reversed because there was a fatal variance between the allegations in the charging information and the evidence adduced at trial?
2. Was the evidence sufficient to support the judgment?

[¶2] We affirm.

[¶3] The facts favorable to the conviction are that brothers Tom and Jeff Kimmel owned and operated Indian Creek Stone Products (Indian Creek), which sold dimensional stone, sandstone, and veneer to individuals and contractors. The company's sole purpose was to quarry and sell stone. It had a long-standing policy not to compete with its contractor customers and thus did not engage in installation work. Kimmel, who was the cousin of Tom and Jeff, worked as Indian Creek's sales manager. Before he was employed bye Indian Creek and several times during his employment, Kimmel was told by Tom that he (Kimmel) was not permitted to engage in any installation work with Indian Creek's stone, although Kimmel repeatedly expressed an interest in doing such work.

[¶4] In 2007, Tom received a call from Jim Sherman, who owned a residence in Bloomington, Indiana. Sherman was upset because he claimed Indian Creek had done a poor job of the stone installation on the exterior of his residence. Tom drove to the residence and inspected the installation. He recognized the stone as having come from Indian Creek's quarry and described the installation job as follows: " Mortar smeared all [sic], it looked like monkeys had laid it. There was mortal [sic] all over all of the windows. Uh, we walked around the house, uh, it was, it was the worse [sic] mess that I have ever seen in my life." Transcript at 90-91. Tom informed Sherman that Indian Creek did not do installation work, but Sherman insisted that Indian Creek had indeed done the installation. At that point, Tom suspected that Kimmel was involved in the substandard installation.

[¶5] Several days later, Tom confronted Kimmel about the situation, and Kimmel denied knowing anything about it. When Tom informed Kimmel that he had been to the Sherman residence, however, Kimmel confessed to knowledge about the installation. Kimmel admitted he had been partially paid for doing the installation and claimed that he planned to pay Indian Creek for the stone. Tom asked where the money was and Kimmel admitted that he had spent it. Kimmel was then fired. Later, office manager Staci Kimmel found invoices for the Sherman installation on Kimmel's desk, in his handwriting. She also found a notebook entry in which Kimmel essentially admitted stealing from Indian Creek. Further investigation revealed that Kimmel had intercepted the delivery invoice from driver Kevin Elliott before the ...


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