ARTHUR v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Amber Arthur was convicted of Level 6 felony theft for taking over $900 cash from a wallet that a customer had inadvertently left at the store where Arthur was an assistant manager. Arthur appeals her conviction, claiming that the trial court abused its discretion when it refused her tendered jury instruction, which stated that taking lost or mislaid property does not constitute theft in Indiana.

[2] We affirm.

Facts & Procedural History

[3] On November 2, 2022, Sharon Ratliff was running some errands in Bedford. That day, she withdrew $500 from her bank account to buy food for a community kitchen's Thanksgiving dinner. In total, she had $950 to $1000 in cash in her zippered white wristlet wallet. She went to the Dollar General store where she bought a few personal household items as well as some children's toys to donate. Arthur, then an assistant manager at the Dollar General, was Ratliff's cashier. Ratliff pushed her cart of purchases out to the parking lot and then returned the cart to the vestibule area inside the store. After Ratliff got home, she realized that she did not have her wristlet.

[4] Meanwhile, about five minutes after Ratliff left the store, another customer entered the store and found the wristlet wallet sitting in the shopping cart. The customer picked up the wallet and turned it in to Dollar General, handing it to Arthur. Although store policy required that items of value be placed in the safe, Arthur placed the wallet on a shelf in a cubicle behind the cash register, which was out of view of the security cameras. About an hour after leaving the store, Ratliff returned and asked Arthur if anyone had found her wristlet wallet, providing Arthur with a description of it. Arthur told her that it had not been located by anyone.

[5] The next day, Ratliff called the police to report the incident and then went back to the Dollar General, asking a different employee about her missing wallet. That employee picked up the wallet from near the registers and handed it to Ratliff. The wallet was “pretty much” in the same condition as when she left it, but all the cash was gone. Transcript at 108.

[6] On November 7, Bedford Police Department (BPD) Detective Max Uebelhoer and another officer went to Ratliff's residence and gathered information from her, including a description of her wristlet wallet and time that she was at the Dollar General. After speaking to Ratliff, the officers went to the store and spoke with Arthur, who told them that she had found the wristlet wallet outside the building by the garbage dumpster and that she was “the one who returned it to [Ratliff].” Id. at 74.

[7] Two days later, officers went back to the store, spoke to the manager, and watched video surveillance footage, which showed Ratliff leaving her wristlet wallet in the cart and the unknown customer finding it about five minutes later and handing it to Arthur. As this was inconsistent with what Arthur had told them, the officers spoke with Arthur again. She denied any wrongdoing and maintained that she found the wallet by the dumpster.

[8] Thereafter, officers obtained and watched additional security video taken from various camera angles at the store. The footage showed Arthur walking over “numerous times” to the cubicle area where she had placed the wallet and could be seen moving her hands around. Id. at 77. Officers also noticed that, shortly after receiving the wallet, Arthur placed a cardboard box near where she had placed the wallet. Several hours later, officers observed Arthur “putting some items in that box” and then taking that box to the back storage room by the back door. Id. She left the box in the storage room for some minutes but returned, picked up the box, and stepped out of camera view. When she came back into view, Arthur no longer had the box but she was “holding what looks to be [Ratliff]’s wallet.” Id. at 78. Arthur then placed the wallet on top of the safe, which was located behind the registers.

[9] On December 2, 2022, the State charged Arthur with Level 6 felony theft for taking property, specifically cash, belonging to Ratliff. A jury trial was held on June 5, 2024. In her opening statement, Arthur's counsel pointed out there would be no witness testimony or surveillance video of Arthur taking any money out of the wallet and “[t]hat's because she didn't.” Id. at 71.

[10] In cross-examining Detective Uebelhoer, Arthur obtained his agreement that, after watching the hours-long security video from several cameras located throughout the Dollar General, he did not observe Arthur take anything out of the wallet, could not really see what Arthur was handling in the cubicle or on the shelf, and did not see her put the wallet into the cardboard box. Detective Uebelhoer also acknowledged that he saw Arthur “bringing the wallet back in” from where the dumpster was. Id. at 82.

[11] Store manager Troy Christman testified that, pursuant to store policy, Arthur should have placed the wristlet wallet in the safe. The video security footage, containing four videos taken from different angles, was admitted as State's Exhibit 1 without objection and parts of it were played for the jury. On cross-examination, Christman agreed that he had provided five to six hours of video footage but only “snippets” were played for the jury, that he was not present in the store when these events occurred, and that he did not know with certainty what training Arthur had received about the safekeeping of lost items. Id. at 92. He also agreed that there was no security video footage of Arthur taking anything out of the wallet. During cross-examination, Ratliff likewise agreed that she did not see Arthur take anything out of the wallet.

[12] Arthur moved for a directed verdict on two bases: (1) the State failed to present sufficient evidence that she took anything from the wallet, as no evidence was presented that anyone saw her do so; and (2) Indiana law, specifically Williams v. State, 158 N.E.3d 817 (Ind. Ct. App. 2020) – where an off-duty employee picked up and kept cash left by a customer at a self-checkout register – provides that lost or mislaid property is not subject to Indiana's theft statute, Ind. Code § 35-43-4-2. The State responded that, first, sufficient evidence was presented to the jury from which it could find that she was guilty of theft and, second, “this isn't a lost or mislaid property case. This property was recovered [ ] and was in possession of the store” such that Williams did not apply to Arthur's case. Transcript at 111.

[13] In considering Arthur's motion for directed verdict, the trial court inquired whether, in Williams, the lost or mislaid cash was in a wallet, receiving confirmation that it was not. The court took the matter under advisement during a recess and, upon resuming, denied Arthur's motion, finding that the facts of Williams were distinguishable. The court observed that the cash left behind in Williams was not identifiable whereas Ratliff's wallet was readily identifiable as belonging to her, noting that Arthur had just been the cashier for Ratliff.

[14] Thereafter, Arthur testified in her defense. Contrary to her statement to police, she testified that when the customer handed the wristlet wallet to her, she set it on a shelf where she had been trained to put lost or found property and where her own purse was also sitting. She explained that, when seen on video footage “doing something” on the shelf or cubicle, she was getting into her own purse but was not touching the wristlet, although noting that she “had started to look in [the wallet] for an ID” but got distracted by another customer. Id. at 122. Arthur explained that she did not return the wristlet wallet to Ratliff when she returned and asked about it because “[Ratliff] described a purse,” “[a] long strap, carry on your shoulder purse is what she said.” Id. at 123. Arthur testified to finding the wallet in the evening by the dumpster, although she did not recognize it at the time as being the same item that the customer had turned in because she “had so much going on” that day. Id. at 124. Arthur said the wallet was muddy from being on the ground by the dumpster and had no idea how it ended up in that location. Arthur denied taking anything out of the wallet.

[15] As relevant here, Arthur tendered Proposed Final Instruction 1 (Proposed Instruction 1), which read: “Under the law, the taking of lost or mislaid property does not constitute theft. Authority, Williams v. State, 158 N.E.3d 817 (Ind. Ct. App. 2020).” Appendix at 15; Transcript at 134. The trial court denied Arthur's Proposed Instruction 1, explaining, “I think that statement is overly broad. I don't think it applies to this particular case.” Transcript at 134.

[16] During closing argument, Arthur's counsel argued, “[N]obody saw [Arthur] take any money out of the wallet because she didn't take any money out of the wallet.” Id. at 149. The jury thereafter found Arthur guilty of Level 6 felony theft. The trial court sentenced her to one year in the county jail, with 363 days suspended to probation, and ordered her to pay $900 in restitution. Arthur now appeals.

Discussion & Decision

[17] Arthur asserts the trial court abused its discretion when it denied Proposed Instruction 1 – stating “[u]nder the law, the taking of lost or mislaid property does not constitute theft” – and she asks us to reverse her conviction and remand for a new trial. We will reverse the trial court's decision regarding jury instructions only for an abuse of discretion. Brown v. State, 830 N.E.2d 956, 966 (Ind. Ct. App. 2005). Jury instructions are to be considered as a whole and in reference to each other, and we will not reverse the trial court's decision as an abuse of discretion unless the instructions as a whole mislead the jury as to the law of the case. Id. In reviewing the trial court's decision to refuse or give an instruction, we consider: (1) whether the instruction correctly sets out the law; (2) whether the evidence supports the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by the other instructions that were given. Matheny v. State, 983 N.E.2d 672, 679 (Ind. Ct. App. 2013), aff'd on reh'g, trans. denied. A defendant in a criminal case is entitled to have the jury instructed on any theory of defense that has some foundation in the evidence, that is, “so long as the evidence presented at trial has some probative value to support it.” Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. App. 2001). A defendant seeking reversal based on instructional error, “must demonstrate a reasonable probability that substantial rights of the complaining party have been adversely affected.” Ndiaye v. State, 234 N.E.3d 906, 910 (Ind. Ct. App. 2024).

[18] As authority for Proposed Instruction 1, Arthur relied upon Williams, where this court reversed a defendant's conviction for misdemeanor theft for taking cash left behind by a customer at a Kroger self-checkout station. 158 N.E.3d at 819. The facts in Williams were that a customer had used a $100 bill at a Kroger self-checkout station and $83.33 in change was dispensed into trays, but the customer only took the coins and inadvertently left without the $83 cash. After several minutes, Williams, an off-duty Kroger employee, used the station to make a purchase using a credit card and then put the $83 in his pocket and exited. The customer returned to the store and reported leaving the cash, and surveillance footage showed that Williams had pocketed the money.

[19] The State charged Williams with misdemeanor theft, and the matter proceeded to a bench trial. While the charging information identified the victim-customer by name, that person did not testify. The trial court found Williams guilty, and Williams appealed, claiming the evidence was insufficient to support his conviction as the State did not present evidence establishing the identity of the customer who left the money. The Williams court found that, while it “could reverse [his] conviction for this reason alone,” there was “a more fundamental problem with Williams's conviction,” namely: “Indiana's theft statute does not criminalize the taking of lost or mislaid property[.]” Id. at 819. The court reasoned that Indiana, at one time, had such a statute ¹ but it was repealed decades prior and that “[i]f such conduct is to be recriminalized, that is a decision for the legislature.” Id.

[20] In arguing for reversible instructional error, Arthur effectively asks us to find that Williams stands for the blanket proposition that any and all property, no matter the type, inadvertently left behind or mislaid by anyone, for any amount of time and no matter the surrounding circumstances, is fair game for another person to take without being subject to Indiana's theft statute. We, like the trial court, believe that such is an overbroad reading of Williams. In any event, we find that Williams is distinguishable from and inapplicable to the case at hand.

[21] As an initial matter, we observe that the “lost or mislaid property” picked up by the off-duty employee in Williams was simply cash, which is not readily identifiable as belonging to any certain person. In contrast, here, the forgotten and “mislaid” item was a wallet that could be identified by its owner.

[22] Furthermore, and perhaps more importantly, unlike in Williams, the property that Ratliff forgot in her cart was spotted minutes later by another customer and handed to Arthur, the store's assistant manager. Thus, even if the wallet left in the cart could be considered as lost or mislaid property, once it was found and turned in, it ceased to be lost or mislaid. Rather, the wristlet wallet and its contents were placed in the store's possession for safekeeping for the rightful owner. Instead of putting the wallet in the safe, as required by store policy, Arthur placed it on a shelf in a cubicle, out of security camera view. And when Ratliff came back about an hour later and inquired about her lost wallet, Arthur falsely said that it had not been found. This lie evinces her intent to keep the wallet (or its contents), which she now knew belonged to Ratliff. On this record – even if the Proposed Instruction can be said to correctly set out the law and even if the substance of it was not covered by other instructions – we find that the evidence at trial did not support giving Arthur's Proposed Instruction 1.² Accordingly, the trial court did not abuse its discretion when it refused the tendered instruction.

[23] Judgment affirmed.

FOOTNOTES

1.   Ind. Code 35-17-5-5 provided:A person who obtains control over lost or mislaid property commits theft when he:1. Knows or learns the identity of the owner or knows or learns of a reasonable method of identifying the owner, and2. Fails to take reasonable measures to restore the property to the owner, and3. Intends to deprive the owner permanently of the use or benefit of the property.Reasonable measures shall include, but not necessarily be limited to, notifying the identified owner or any peace officer.

2.   As to Arthur's contention that denial of Proposed Instruction 1 invaded the province of the jury “to fairly consider [ ] her theory of defense,” we are unpersuaded. Appellant's Brief at 11. Throughout trial – from opening statement, to witness examination, to closing argument – Arthur's theory of defense consistently was that she did not take anything from the wallet. Thus, Proposed Instruction 1 pertaining to the taking of lost or mislaid property was not applicable to Arthur's theory of defense and would have confused or misled the jury.

Altice, Chief Judge.

Brown, J. and Tavitas, J., concur.