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McMiller v. State

Court of Appeals of Indiana

December 18, 2017

Tony McMiller, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal 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

          MAY, JUDGE.

         [¶1] Tony McMiller appeals his convictions for Class A misdemeanor theft[1] and Class B misdemeanor disorderly conduct.[2] 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.

         Facts and Procedural History

         [¶2] On December 13, 2016, McMiller and Karri[3] 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.

         [¶3] 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 pay it.

         [¶4] 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.

         [¶5] 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 persisted.

         [¶6] The State charged McMiller with Class A misdemeanor theft, Class A misdemeanor resisting law enforcement, [4] 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.

         Discussion and Decision

         [¶7] 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.

         I. Class A ...


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