DEMPSEY v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] In February of 2025, Alonzo Dempsey walked out of a Beech Grove Walmart without paying for almost $200.00 of items in his shopping cart. The State charged Dempsey with, and he was convicted of, Class A misdemeanor theft, and the trial court sentenced him to one year of incarceration, all suspended to unsupervised probation, with forty hours of community service. As restated, Dempsey contends that the trial court abused its discretion in admitting evidence regarding the value and identity of the items he had stolen from Walmart. We affirm.

Facts and Procedural History

[2] On February 7, 2025, Joshua Hodge was working as an asset-protection manager at the Beech Grove Walmart and monitoring the pan/tilt/zoom cameras when he noticed Dempsey walking away from the self-checkouts with a large quantity of meat in his shopping cart, a “red flag” for Walmart. Tr. Vol. II p. 7. Hodge monitored Dempsey as he made his way around the sales floor and back to the self-checkouts. After Hodge observed “that items were not being scanned correctly or scanned at all[,]” Dempsey was stopped at the doors, past the point of sale. Tr. Vol. II p. 8. While Dempsey had paid for items worth approximately $40.00, Hodge later testified that Dempsey had not paid for “boneless chops, wings, and catfish filets” worth approximately “$195.38.” Tr. Vol. II pp. 8, 9.

[3] On February 20, 2025, the State charged Dempsey with Class A misdemeanor theft and another charge that was later dismissed. On September 23, 2025, a bench trial was held. The trial court found Dempsey guilty of theft and sentenced him to one year in jail, suspended to unsupervised probation, with forty hours of community service.

Discussion and Decision

[4] Dempsey frames his argument as a sufficiency argument, i.e., that the State produced insufficient evidence to sustain his conviction for Class A misdemeanor theft. A person commits Class A misdemeanor theft by “knowingly or intentionally exert[ing] unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use[.]” Ind. Code § 35-43-4-2(a). Dempsey's actual argument, however, is not a direct challenge to the sufficiency of the State's evidence, but, rather, a challenge to the admissibility of some of that evidence. We address Dempsey's claim on that basis.

[5] Specifically, Dempsey contends that the trial court wrongfully admitted Hodge's testimony regarding the value and identity of the items that he had stolen because the evidence failed to satisfy the best-evidence rule. As a general rule, we afford trial courts broad discretion in ruling on the admission of evidence and review the trial court's ruling on the admission of evidence for an abuse of discretion. Richardson v. State, 189 N.E.3d 629, 635 (Ind. Ct. App. 2022). The so-called “best-evidence rule” provides that “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a statute provides otherwise.” Ind. Evidence Rule 1002. Dempsey's argument on this basis fails for more than one reason.

[6] First, Dempsey failed to object to the admission of any of the testimony regarding the value or identity of the stolen items on any basis, so any possible claim of error has been waived for appellate review. See Smith v. State, 190 N.E.3d 462, 466 (Ind. Ct. App. 2022) (citing Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (noting that the failure to make a contemporaneous objection to the admission of evidence at trial waives the issue for appeal)), trans. denied. Dempsey also makes no attempt to avoid the effects of his waiver by claiming fundamental error. See Jewell v. State, 887 N.E.2d 939, 940 n.1 (Ind. 2008) (noting that the fundamental-error doctrine “is an exception to the general rule that the failure to object at trial constitutes a procedural default precluding consideration of an issue on appeal”).

[7] Second, the best-evidence rule does not cover a witness's recollections. “However, when a witness has personal knowledge of the facts contained in the best evidence, the best evidence rule will not bar the witness[’s] testimony since the witness is not being asked to reveal the contents of the best evidence, but rather is being asked to recall his own independent observations.” Lopez v. State, 527 N.E.2d 1119, 1125 (Ind. 1988) (citations omitted). The best-evidence rule did not prevent Hodge from testifying about his recollection of the value of the stolen items, even though there may also have been a receipt listing those items. Nor was it an issue that Hodge used the “training receipt” to refresh his recollection, because a witness may use a “writing” to refresh his recollection during testimony. Tr. Vol. II p. 8; Ind. Evidence Rule 612.

[8] Finally, even if Dempsey had preserved his evidentiary claim and the best-evidence rule actually applied to Hodge's testimony, any error that might have occurred was harmless. All the State had to prove to support Dempsey's conviction for Class A misdemeanor theft was that Dempsey had stolen something—it was not required to prove the value or specific identity of the items stolen. Dempsey cites to no authority for the proposition that the State must prove either value or identity of the items stolen in order to support a conviction for Class A misdemeanor theft, and we are aware of none. See Ind. Code § 35-43-4-2(a); Toney v. State, 206 N.E.3d 1153, 1156 (Ind. Ct. App. 2023) (noting that felony theft, not misdemeanor theft, requires the State to establish the value of the property), trans. denied. Dempsey's challenge to Hodge's testimony is without merit, and any error would have been harmless in any event.

[9] We affirm the judgment of the trial court.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.