Jay Wallace v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
Feb 21 2012, 9:39 am
the defense of res judicata, collateral
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL FRISCHKORN GREGORY F. ZOELLER
Frischkorn Law LLC Attorney General of Indiana
Fortville, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAY WALLACE, )
)
Appellant-Defendant, )
)
vs. ) No. 29A02-1107-CR-645
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable J. Richard Campbell, Judge
Cause No. 29D04-1007-FD-3456
February 21, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Tony Horn gave Jay Wallace $1500 in cash to buy materials to do plumbing work that
Wallace had agreed to perform in Horn‟s basement. Although Wallace promised to purchase
materials and begin the work immediately, Wallace never returned to Horn‟s residence. For
more than ten days, Wallace did not begin the work and refused to return the money to Horn.
A jury found Wallace guilty of class D felony theft, and the trial court sentenced Wallace to
a 1095-day sentence, with 365 days executed in the Department of Correction, 365 days
executed on work release, and 365 days suspended to probation. Wallace contends that the
evidence is insufficient to sustain his conviction, that the trial court abused its discretion
when it admitted certain evidence, and that his sentence is inappropriate in light of the nature
of the offense and his character. Finding the evidence sufficient, no abuse of discretion, and
concluding that Wallace did not meet his burden to show that his sentence is inappropriate,
we affirm.
Facts and Procedural History
The facts most favorable to the jury‟s verdict indicate that in May 2010, Horn decided
to finish his basement. He wanted the finished basement to include a full bathroom. In order
to achieve this, Horn looked for local plumbers on Craigslist.1 Horn contacted three
plumbers, one of whom was Wallace, to obtain quotes. On May 3, 2010, Wallace traveled to
Horn‟s home and took measurements. Within a few hours, Wallace emailed Horn a quote of
1
As noted by both parties, Craigslist is an online user-generated classified advertising forum.
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$2499 for completion of the plumbing project. Wallace‟s bid for the project was in the
middle of the three quotes Horn obtained – cheaper than one, and more expensive than the
other.
On Wednesday, May 5, 2010, Horn called Wallace to inform him that he wanted to
hire Wallace for the project. Wallace came to Horn‟s house that evening. Wallace told Horn
that he needed $1500 in advance to purchase materials for the project. Although Horn was
“not real comfortable” giving Wallace money prior to any work being completed, he did give
Wallace fifteen $100 bills and asked him to sign a receipt for the money. Tr. at 36-37.
Wallace signed the receipt and indicated that he would immediately travel to a plumbing
supply store to get materials. Wallace stated that he would rent a jackhammer and return that
night to “bust up the concrete floor.” Id. at 37. Wallace did not return to Horn‟s residence
that night. Instead, he called Horn and told him that traffic was bad and that he would not
make it back. Wallace agreed that he would return to the residence at 8:00 the next morning
to begin work.
The next morning, Thursday May 6, Wallace did not return. He texted Horn that he
was in the hospital with his girlfriend because she was being checked for chest pain. He said
that he would be at Horn‟s later that day or, at the latest, the following morning. On Friday,
May 7, at 9:17 a.m., Wallace informed Horn that he was still at the hospital but just waiting
for the last doctor to come in to release his girlfriend. He stated that he would soon be at
Horn‟s house to begin work. When Horn had not heard from Wallace that evening, he texted
Wallace inquiring as to his whereabouts and requesting that Wallace call him. Wallace
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declined to call and instead merely text messaged Horn that he was still at the hospital. Horn
texted Wallace that “I either need to get my money back so I can hire someone or you need to
start this job.” State‟s Ex. 4.
On Saturday, May 8, Horn texted Wallace and asked him again to return the money.
Wallace indicated that he was still at the hospital. Horn texted, “What hospital? I will come
to you and get my money.” Id. Wallace responded, “I[‟]ll be ther[e].” Id. Wallace did not
come to Horn‟s residence and did not respond to repeated inquires about repaying the money
or about when he could begin the job. Wallace eventually texted Horn stating that Horn
could not hire another contractor because he had a contract with Wallace, that Wallace would
maybe start the job the following weekend, and that now they were testing Wallace‟s
girlfriend for cancer. He refused to telephone Horn despite repeated requests. Meanwhile,
Horn discovered that Wallace‟s business name, “J & M Heating and Cooling, Plumbing,
Inc.,” was continually posting updated advertisements for new jobs on Craigslist. Horn could
not understand how Wallace could be looking for new jobs when he could not even begin the
one that Horn had already given him money for. Tr. at 42-43.
Consequently, Horn contacted Officer Matt Griffin of the Noblesville Police
Department. Officer Griffin offered to contact Wallace and attempt to mediate the situation.
Officer Griffin called Wallace. Wallace told Officer Griffin that his girlfriend was in the
hospital but refused to tell Officer Griffin his girlfriend‟s name or which hospital. Wallace
hung up on Officer Griffin “numerous times,” cursed at Officer Griffin, and refused to give
any explanation for his unwillingness to return Horn‟s money or to begin the job.
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On May 9, Horn left a voicemail for Wallace again asking for Wallace to return his
money. Ten to fifteen minutes later, Wallace called Horn. Wallace was irate and threatened
Horn that “you have no idea who you are f***ing with … I can come in your home and you
won‟t even know that I am there. I know where you live.” Id. at 49. At the urging of
Officer Griffin, Horn continued to correspond with Wallace via texting until Sunday, May
16, 2010. Wallace had promised to arrive at Horn‟s house that morning to finally begin the
work. Wallace did not. As of that date, Wallace had neither returned any money to Horn nor
completed any work on the plumbing project.
On July 19, 2010, the State charged Wallace with class D felony theft and class A
misdemeanor intimidation. A jury trial was held on May 26, 2011. The jury found Wallace
guilty of class D felony theft and not guilty of class A misdemeanor intimidation. Following
a sentencing hearing, the trial court sentenced Wallace to 1095 days, with 365 days executed
in the Department of Correction, 365 days executed in the Hamilton Community Correction
Work Release program, and 365 days suspended to probation. This appeal ensued.
Discussion and Decision
I. Sufficiency of the Evidence
Wallace first challenges the sufficiency of the evidence to support his theft conviction.
Our standard of review is well settled:
Upon review of a claim of insufficient evidence, we neither reweigh the
evidence nor judge the credibility of the witnesses. We will affirm a
conviction unless, considering only the evidence and reasonable inferences
favorable to the verdict, we conclude that no reasonable fact-finder could find
the elements of the crime proven beyond a reasonable doubt. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of
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innocence. Instead, the evidence is sufficient if an inference may reasonably
be drawn from it to support the jury‟s verdict.
Stokes v. State, 922 N.E.2d 758, 763 (Ind. Ct. App. 2010) (citations omitted), trans. denied.
To convict Wallace of class D felony theft, the State was required to prove that Wallace
knowingly or intentionally exerted unauthorized control over Horn‟s money, with the intent
to deprive Horn of any part of its value or use. See Ind. Code § 35-43-4-2. Control over
property is “unauthorized” if it is exerted “in a manner or to an extent other than that to
which the other person has consented,” or “by promising performance that the person knows
will not be performed.” Ind. Code § 35-43-4-1(b)(2) and -(6).
Horn gave Wallace $1500 with the sole purpose that Wallace would use the money
that same day to purchase materials and begin a plumbing job. Wallace never returned to
Horn‟s residence with the materials as promised and never performed any part of the job
despite ample opportunity to do so. To no avail, Horn repeatedly expressed his dismay to
Wallace and repeatedly asked for the money or the materials that Wallace supposedly
purchased. Wallace refused to account for the money or the materials. Based upon all the
evidence presented, a reasonable inference was that Wallace never actually purchased the
materials with Horn‟s money. To that extent, it was reasonable for the jury to infer that
Wallace knowingly exerted control over Horn‟s money in a manner or to an extent other than
that to which Horn consented.
Similarly, there was sufficient circumstantial evidence to support the conclusion that
Wallace promised performance that Wallace knew would not be performed. Based upon
Wallace‟s behavior from May 5, through May 16, the jury could reasonably infer that, from
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the beginning, Wallace never actually intended to perform the plumbing job at Horn‟s
residence. Indeed, when given the opportunity to remedy the situation and/or to explain his
behavior, Wallace refused to cooperate with Officer Griffin, who was merely trying to help
Wallace avoid criminal liability. The State presented sufficient evidence from which the jury
could conclude that Wallace‟s control over Horn‟s money was unauthorized when he
promised performance that he knew would not be performed.
On appeal, Wallace merely points to his self-serving testimony that he did purchase
materials with Horn‟s money and that he intended to perform the plumbing job at the time he
took Horn‟s money. Wallace asks us to reweigh the evidence and reassess witness credibility
in his favor, tasks not within our prerogative on appeal. The State presented sufficient
evidence to sustain Wallace‟s conviction for class D felony theft.
II. Admission of Evidence
Wallace additionally claims that the trial court abused its discretion when it admitted
evidence that his company continued to post advertisements for new jobs on Craigslist while
Wallace claimed to be at the hospital and unable to perform the job at Horn‟s residence.2 We
need not address the merits of this claim, as any error in the admission of this evidence by the
trial court was harmless. “Error is harmless if „the conviction is supported by substantial
independent evidence of guilt as to satisfy the reviewing court that there is no substantial
likelihood that the questioned evidence contributed to the conviction.‟” Tolliver v. State, 922
2
Wallace objected to the evidence on hearsay grounds and on grounds that there was “an
authentication issue.” Tr. at 41-42.
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N.E.2d 1272, 1278 (Ind. Ct. App. 2010) (quoting Cook v. State, 734 N.E.2d 563, 569 (Ind.
2000)), trans. denied. As illustrated above, we are confident that the State presented
substantial independent evidence of Wallace‟s guilt such that there is no substantial
likelihood that the challenged evidence contributed to his theft conviction.
III. Appropriateness of Sentence
Wallace maintains that his sentence is inappropriate in light of the nature of the
offense and his character. The sentencing range for a class D felony is between six months
and three years, with the advisory sentence being eighteen months. Ind. Code § 35-50-2-7.
Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence authorized by statute if,
after due consideration of the trial court‟s decision, we find that the sentence “is
inappropriate in light of the nature of the offense and the character of the offender.” The
defendant bears the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[W]hether we regard a sentence as
appropriate at the end of the day turns on our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Regarding the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed. Anglemyer v.
State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. Here, Wallace
claims that rather than the maximum three-year sentence for class D felony theft imposed by
the trial court, his behavior warranted much less, as this case would have been better suited
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for a civil small claims action. However, Wallace has no one to blame but himself. He took
Horn‟s money, offered questionable excuses for continually failing to perform, and refused to
return the money despite numerous requests. He left an innocent homeowner feeling helpless
and cheated. Significantly, when given the opportunity to avoid criminal liability, Wallace
unequivocally refused to cooperate with law enforcement. Under the circumstances, Wallace
has not shown that the nature of his offense, or what we may describe as an apparent scam,
warrants a lesser sentence than that imposed by the trial court.
Regarding his character, Wallace has similarly not met his burden to show that a lesser
sentence is appropriate. Wallace has an extensive criminal history consisting of at least
fifteen misdemeanor convictions and one felony conviction. As noted by the State, Wallace
has had his probation revoked three times. During sentencing in the instant case, Wallace
indicated no remorse, continually blamed the victim, and accepted no responsibility for his
crime. Consequently, we affirm Wallace‟s sentence and decline his invitation to second-
guess the trial court.
Affirmed.
MAY, J., and BROWN, J., concur.
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