LOPEZ v. STATE (2026)

MEMORANDUM DECISION

[1] Frank E. Lopez appeals his conviction of Level 6 felony theft.¹ He claims the State failed to prove he had the intent to deny the Speedway gas station of the use or value of the $2.49 half-eaten mixed-berry danish that he refused to pay for with cash or a card, rather than a lottery ticket. Because the facts most favorable to the jury's decision support the inferences required to convict him, we affirm.

Facts and Procedural History

[2] On December 2, 2024, Joshua Ineichen was employed at a Speedway gas station in Kendallville, Indiana (“Speedway”). He had been employed by Speedway for eight years and regularly worked the overnight shift. During the overnight shift, less money is kept in the cash register as a security precaution. Speedway typically is a location at which winning lottery tickets can be cashed out. However, Speedway can refuse to cash out lottery winnings over $25.00 if the store does not have adequate money available in the cash register at that time to cash the ticket, so that the store does not become inoperable from having inadequate cash on hand.

[3] Around 11:00 p.m., Lopez entered the store with a female. Lopez shopped in the store, while the woman came to the register to cash out multiple lottery tickets. A number of her tickets were below $25.00, and Ineichen cashed out those tickets as required by the Hoosier Lottery. One of her tickets was a “big winner” that was worth “$50.00 at least.” (Tr. Vol. 2 at 108.) Ineichen refused to cash the “big winner” ticket because he did not have enough money in the register. The woman left the store to pump gas. Lopez then approached the register with a bottle of soda and handed Ineichen a $20.00 lottery ticket that he wanted to cash out to pay for the soda. Ineichen cashed out the lottery ticket and, after charging Lopez for the soda, gave Lopez between seventeen and eighteen dollars in change. Lopez left the store.

[4] A few moments later Lopez returned to the store and asked Ineichen to cash out the same “big winner” ticket that Ineichen had refused to cash for Lopez's female friend. Ineichen told Lopez that he could not cash out the ticket because he did not have adequate money available in his cash register. Lopez walked around inside the store, picked up a pre-packaged mixed-berry danish, returned to the line for the cashier, opened the danish, and ate about half of it. When Lopez reached the register, he insisted Ineichen cash the lottery ticket to cover the cost of the danish. Ineichen refused to cash the lottery ticket because he did not have enough cash in the register, and he informed Lopez that he needed to pay for the danish in some other way. Lopez refused to pay for the danish with anything except the lottery ticket, so Ineichen called the police. When police arrived, Lopez continued to refuse to pay for the danish unless he could pay with the “big winner” lottery ticket, so police arrested him. Ineichen rang up the half-eaten danish so that police could take a picture of the $2.49 price of the danish. When police searched Lopez to place him in the squad car, he had $17 in his pocket.

[5] On December 3, 2024, the State charged Lopez with Level 6 felony theft and Class A misdemeanor criminal mischief.² A jury found Lopez guilty of Class A misdemeanor theft, and then Lopez admitted he had a prior conviction that elevated the jury's theft finding to a Level 6 felony. The trial court held a sentencing hearing and imposed a sentence of 547 days.

Discussion and Decision

[6] Lopez appeals to challenge the sufficiency of the State's evidence supporting his conviction. Our standard of review regarding sufficiency of the evidence claims is well-settled:

Sufficiency-of-the-evidence claims ․ warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. Rather, we consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.

Powell v. State, 151 N.E.3d 256, 262-63 (Ind. 2020) (internal citations omitted).

[7] Lopez was convicted of Level 6 felony theft. Class A misdemeanor theft occurs if someone “knowingly or intentionally exerts 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). The crime becomes a Level 6 felony if “the person has a prior unrelated conviction for ․ burglary under IC 35-43-2-1[.]” Ind. Code § 35-43-4-2(a)(1)(C)(4). Lopez admitted he had a prior conviction, but he argues the evidence was insufficient to convict him of theft because “no reasonable inference of intent to deprive Speedway of the Danish's value can be drawn from the evidence.” (Appellant's Br. at 9.)

[8] Mens rea is a mental function and, without an admission from the actor, must be inferred from the facts and circumstances surrounding the events in question. Brown v. State, 222 N.E.3d 362, 372 (Ind. Ct. App. 2023), reh'g denied, trans. denied. Pursuant to the statute defining theft, Lopez could be found guilty if he acted knowingly or intentionally. See Ind. Code § 35-43-4-2(a). A person performs behavior knowingly if, “when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). A person performs behavior intentionally if, “when he engages in the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a).

[9] Lopez insists that “[n]o reasonable inference can be made, on this record, that [he] intended to deprive the Speedway Gas Station of the value of the [d]anish” because he wanted to pay for the danish with the lottery ticket. (Appellant's Br. at 12-13.) However, Ineichen had already explained to both Lopez and his female companion that Ineichen did not have enough money in his register to cash the lottery ticket at issue. Lopez nevertheless opened and consumed half of the danish before he returned to the point of payment and insisted the lottery ticket be accepted as payment. A jury could reasonably infer from these facts that Lopez knew he could not pay for the danish with the lottery ticket as he ate it and that he therefore intended to deprive Speedway of the value of the danish. Moreover, when Ineichen told Lopez yet again that Speedway had insufficient funds to cash the lottery ticket, Lopez did not pay for the danish with the $17 in cash that he had in his pocket. We accordingly affirm Lopez's conviction.

Conclusion

[10] Because the facts most favorable to the conviction support an inference that Lopez intended to deny Speedway the use or value of the pastry when he ate half of the pastry and then refused to pay unless the cashier accepted his lottery ticket as payment, we affirm his conviction.

[11] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-43-4-2(a)(1)(C)(iv).

2.   Ind. Code § 35-43-1-2(a).

May, Judge.

Mathias, J., and Felix, J., concur.