Olivia Covington for www.theindianalawyer.com
The Indiana Court of Appeals has reversed a man’s misdemeanor theft conviction after finding the state failed to prove the man went to a restaurant and consumed food and drink with the intention of not paying. However, the court upheld the man’s related disorderly conduct conviction.
After ordering food and drink at Scotty’s Brewhouse for herself and Tony McMiller, Karri Garcia tried to pay the bill with her husband’s credit card. The card was declined, and when the manager learned McMiller and Garcia could not pay, he called the police.
Officers arrived, and McMiller tried to pay the bill with his SSI debit card, which was also declined. He then claimed his sister would come and pay after she got off work, but she never arrived. Other patrons were also asked to pay, but no one offered to do so.
The officers then placed McMiller and Garcia under arrest, and McMiller began talking very loudly and trying to convince other patrons sitting nearby to pay his bill. McMiller continued to bother the other customers, even after officers asked him to stop.
After a subsequent bench trial, McMiller was convicted of Class A misdemeanor theft and Class B misdemeanor disorderly conduct. He appealed in Tony McMiller v. State of Indiana, 49A02-1706-CR-1192, and the Indiana Court of Appeals partially reversed his convictions Monday.
Judge Melissa May, writing for the panel, said first that the state failed to present evidence that McMiller behaved in a manner that suggested he consumed Scotty’s food and drink with an intent to deprive the restaurant of the value thereof. Rather, the record showed McMiller thought Garcia was taking him out to dinner and would pay, then tried to make other arrangements when her credit card was declined.
“While it is not our role to reweigh evidence or judge the credibility of witnesses, we also cannot sustain a conviction for a crime the State did not prove,” May wrote. “…(T)he state has not proven McMiller had the intent to deprive Scotty’s of the value when he consumed the food and drink. Therefore, we must reverse.”
However, the appellate court did uphold McMiller’s disorderly conduct conviction, considering the evidence that McMiller continued to talk at an increasing volume to try to convince other patrons to pay for the meal, even after officers told him to stop.