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Purvis v. State

Court of Appeals of Indiana

November 16, 2017

Kenny Purvis, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

         Appeal from the Cass Superior Court The Honorable Richard A. Maughmer, Judge Trial Court Cause No. 09D02-1506-F5-53.

          ATTORNEY FOR APPELLANT Kristina L. Lynn Lynn and Stein, P.C. Wabash, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana.

          BAKER, JUDGE.

         [¶1] Kenny Purvis appeals his convictions for Level 6 Felony Theft, [1] Level 6 Felony Conspiracy to Commit Theft, [2] and Level 5 Felony Corrupt Business Influence.[3]He contends that the evidence is insufficient to support his convictions and that the sentence imposed by the trial court was inappropriate in light of the nature of the offenses and his character. Finding sufficient evidence and that the sentence is not inappropriate, we affirm.


         [¶2] On May 9, 2015, an employee of the Walmart in Logansport found an empty cell phone box in the sporting goods aisle and notified Brady Herrington, an Asset Protection Officer, about the discovery. Herrington investigated and reviewed digital security footage from Walmart's security cameras. While watching the footage from earlier that day, he observed a member of a group of four individuals "quickly" grab the cell phone and conceal it underneath clothing in their shopping cart. Tr. Vol. II p. 42. Tracking the group's movement, Herrington observed members of the group, including two individuals later identified as Purvis and Adam Wakefield, select and conceal "multiple video games in the same method as the cell phone." Id. at 43. The individuals then exited the store without paying for the merchandise and drove away in a red truck. Based on their behavior and the manner in which they concealed the merchandise, Herrington suspected that the group was involved in "Organized Retail Crime" and sent out a "BOLO" or "Be On Look Out" notification to other stores in the area. Id. at 37, 54.

         [¶3] On May 15, 2015, another employee at the same Walmart discovered "a lot of empty . . . keeper boxes"[4] in the hardware aisle, hidden behind some light bulbs. Id. at 55, 69. Herrington reviewed the security footage for that day; he recognized Purvis from the prior incident and observed him grabbing multiple copies of the same game. At that time, Wakefield and another individual were with Purvis and, after taking the games, the group "split up" and took the games out of view of the cameras, near the hardware aisle. Id. at 60-61. Soon thereafter, Wakefield and the unidentified individual left; however, they returned less than twenty minutes later. The group took a labyrinthine route through the store before stopping at the hardware aisle "for a while[.]" Id. at 81. Another Asset Protection Officer, Amy Powers, testified that, based on her personal experience, their routes were unusual for most shoppers but "typical for shop lifting teams." Id. at 84. The individuals exited the Walmart and drove away in the same red truck from the first incident.

         [¶4] On May 19, 2015, Powers recognized Purvis, Wakefield, and a woman, later identified as Charlene Reiner, pushing a cart filled with clothing through the video game aisle. Based on her suspicions and experience, Powers contacted local police and followed Wakefield, who was pushing the cart. Before reaching the checkout or the exit, Wakefield was stopped and he, Purvis, and Reiner were escorted to the Asset Protection Office. Upon examining the cart, Powers discovered over $400 worth of electronics and video games hidden inside and under clothing. After interviewing all the individuals, the police searched each of them and discovered that Wakefield had four empty Walmart bags in his pockets. Soon thereafter, with Purvis's consent to search, the police discovered a Walmart bag containing eight copies of a newly released video game in his truck. The games in the truck retailed for $59.96 apiece and had just been released that day. While Purvis denied stealing from the Walmart, he admitted that he knew the games in the truck were stolen and that Wakefield told him he planned to steal from the Walmart.

         [¶5] Subsequent investigation by the Logansport Police Department uncovered that Purvis offered and sold "a lot of video games" on an informal Facebook garage sale page. Id. at 140, 156; State's Ex. 6. The garage sale page contained multiple posts from Purvis's personal Facebook page advertising the sale of dozens of "unopened"-and sometimes "brand new"-video games at heavily discounted prices; some of the games still had Walmart stickers on them. Tr. Vol. II p. 140, 156. Several of Purvis's posts and messages to potential customers indicated that he could acquire specific games and he sometimes solicited other Facebook users, asking if they wanted a specific game. Additionally, some of the sales occurred in the Logansport Walmart parking lot.

         [¶6] On November 2, 2016, the State filed amended charges against Purvis including Level 6 felony theft, Level 6 felony conspiracy to commit theft, and Level 5 felony corrupt business influence. The State also alleged that Purvis was an habitual offender. Purvis's jury trial took place on January 4 and 5, 2017, and the jury found Purvis guilty of all charges. On January 6, 2017, Purvis admitted to being an habitual offender. On January 30, 2017, the trial court sentenced Purvis to six years for the corrupt business influence conviction and enhanced it by an additional six years because of Purvis's habitual offender status. For each of the remaining convictions, the trial court sentenced Purvis to a two-and-one-half-year term, each to be served concurrently with the corrupt business influence conviction. Thus, the trial court sentenced Purvis to an aggregate, executed sentence of twelve years imprisonment. Purvis now appeals.

         Discussion and Decision

         I. Sufficiency of the Evidence

         [¶7] Purvis first argues that there was insufficient evidence to convict him of each charge. When reviewing challenges to the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind.Ct.App. 2010). Instead, we consider only the evidence most favorable to the verdict and the reasonable inferences drawn therefrom, and we will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the verdict. Id. Reversal is appropriate only when a reasonable trier of fact would not be able to form inferences as to each material element of the offense. Id.

         A. Theft

         [¶8] To convict Purvis of Level 6 felony theft, the State was required to prove beyond a reasonable doubt that he "knowingly or intentionally exert[ed] unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, " and that "the value of the property is at least seven hundred fifty dollars ($750) and less than fifty thousand dollars ($50, 000)[.]" I.C. § 35-43-4-2(a)(1)(A).

         [¶9] First, Purvis contends that there is no evidence that he left Walmart with any video games. However, it is undisputed that there is video evidence from May 9 and 15 showing Purvis and others quickly taking and concealing video games. State's Ex. 2-4. There is no evidence of Purvis or any of his cohort paying for any of these items or placing them back on the shelves before leaving Walmart. These circumstances alone would be sufficient to support the determination that Purvis knowingly or intentionally exerted unauthorized control over Walmart's property with an intent to deprive Walmart of the property's value. See K.F. v. State, 961 N.E.2d 501, 508 (Ind.Ct.App. 2012) ("[T]he theft statute does not require the State to prove that a defendant was found in possession of the stolen property or that the property was later recovered in order to find that a person committed theft."); see also Hampton v. State, 873 N.E.2d 1074, 1079 (Ind.Ct.App. 2007) ("[A] criminal conviction may be based solely on circumstantial evidence.").

         [¶10] Furthermore, the following evidence bolsters this conviction:

• On every occasion, Purvis and his team quickly grabbed and concealed the items, suggesting that they did not intend to buy the video games and that they did not want anyone to ...

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