Marilyn Odendahl for www.theindianalawyer.com
Although the Indiana Court of Appeals split over whether the jury instruction was erroneous, the panel was unanimous in upholding the defendant’s conviction for theft from Walmart.
Jimmy Wallen, Jr. was charged and convicted of theft, a Class D felony, after he and Athena Dulin, his girlfriend, were observed shoplifting electronics and clothing from Walmart.
He appealed, arguing the jury instruction impermissibly highlights specific evidence and presumes the state has proven each element of the alleged crime.
The majority on the Court of Appeals panel agreed.
“In particular, we find that the instruction is erroneous because it does not afford the jury an opportunity to determine whether the evidence revealing that merchandise was concealed in Dulin’s purse is proof that Wallen intended to deprive Walmart of its value or that he exerted unauthorized control over the property; instead, it prompts the jury to reach such a conclusion,†Judge Patricia Riley wrote in Jimmy Wallen Jr. v. State of Indiana, 79A02-1407-CR-469.
However, Judge John Baker dissented over the question of the jury instruction. He had a different interpretation of Matney v. State, 681 N.E.2d 1152, 1153 (Ind. Ct. App. 1997) reh’g denied; trans. denied, which the majority relied on to reach its conclusion.
Baker maintained unlike Matney, the jury in Wallen was not instructed that evidence of concealment plus removal constitutes prima facie evidence but rather just evidence of intent to deprive.
“In my view, there is a marked distinction between ‘prima facie evidence,’ which necessarily implies a presumption, and ‘evidence’ alone, which merely informs the jury of what facts may constitute evidence of intent,†Baker wrote.
Still the panel unanimously agreed there was overwhelming evidence from which the jury could have independently concluded that Wallen was taking items illegally from the store.
