from the Marion Superior Court Trial Court Cause No.
49G10-1612-CM-47917 The Honorable Linda Brown, Judge
Attorney for Appellant Barbara J. Simmons Oldenburg, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Angela N. Sanchez Supervising Deputy Attorney
General Indianapolis, Indiana
Tony McMiller appeals his convictions for Class A misdemeanor
theft and Class B misdemeanor disorderly
conduct. He argues the State did not present
sufficient evidence to prove he committed Class A misdemeanor
theft because it did not prove he had the intent to deprive
Scotty's Brewhouse of the value of the food and drink he
consumed. He argues the State did not present sufficient
evidence to prove he committed Class B misdemeanor disorderly
conduct because it did not prove he was so unreasonably loud
as to disturb others in the restaurant. We reverse in part
and affirm in part.
and Procedural History
On December 13, 2016, McMiller and Karri Garcia spent the
day together, purchasing multiple items with Garcia's
husband's credit card. McMiller and Garcia went to
Scotty's Brewhouse, ordered food and drink, and ate the
food and drink they ordered. When the bill was presented,
Garcia tried to pay with her husband's credit card, but
it was declined. The manager of the restaurant was called to
the table and learned McMiller and Garcia could not pay the
bill. The manager called the police.
Officer Justin Musser arrived at the scene and Officer
Christopher Pickerrell arrived shortly thereafter. After
learning Garcia's credit card had been declined, Officer
Musser asked McMiller if he was going to pay the bill, and
McMiller offered his SSI debit card, which was also declined.
McMiller said he called his sister and she told him she would
come to the restaurant and pay the bill after she got off
work. She did not do so. Garcia and McMiller attempted to get
other restaurant patrons to pay their bill, but no one would
After approximately one hour, Officers placed McMiller and
Garcia under arrest. Because it was cold outside, Officer
Musser sat McMiller on a bench inside the restaurant while he
waited for the wagon to arrive to transport McMiller to the
Marion County Jail.
McMiller was "talking loudly, upset obviously because he
was going to jail." (Tr. at 28.) He also started
"bothering the patrons that were sitting in the booth
behind them trying to get them to engage in conversation and
pay for his bill." (Id.) Officer Musser asked
him to stop bothering the people in the booth, but McMiller
The State charged McMiller with Class A misdemeanor theft,
Class A misdemeanor resisting law enforcement,  and Class B
misdemeanor disorderly conduct. On May 9, 2017, the trial
court held a bench trial. At the end of the bench trial, the
trial court found McMiller guilty of Class A misdemeanor
theft and Class B misdemeanor disorderly conduct. The trial
court sentenced McMiller to concurrent sentences of 365 days,
with 315 days suspended to unsupervised probation, for theft
and 180 days, with 130 days suspended to unsupervised
probation, for disorderly conduct.
When reviewing sufficiency of the evidence in support of a
conviction, we will consider only probative evidence in the
light most favorable to the trial court's judgment.
Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007),
reh'g denied. The decision comes before us with
a presumption of legitimacy, and we will not substitute our
judgment for that of the fact-finder. Id. We do not
assess the credibility of the witnesses or reweigh the
evidence in determining whether the evidence is sufficient.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).
Reversal is appropriate only when no reasonable fact-finder
could find the elements of the crime proven beyond a
reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence
and is sufficient if an inference may reasonably be drawn
from it to support the verdict. Id. at 147.
Class A ...