SWAFFORD v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Tameka Swafford was convicted of Class A misdemeanor theft after she and Kirsten Phillips took merchandise from the JC Penney store at Castleton Square Mall in Indianapolis without paying. Swafford contends that the evidence is insufficient to sustain her conviction. We affirm.

Facts and Procedural History

[2] Around midday on July 10, 2025, Swafford and Phillips went to the JC Penney store at Castleton Square Mall. Phillips carried the couple's newborn baby in a baby carrier, and Swafford wore a backpack on her back as they entered the store. JC Penney asset-protection manager Kristopher Hutcheson began watching Swafford and Phillips on the store's surveillance system after determining that Swafford's backpack could potentially be used as a means to conceal merchandise.

[3] Upon entering the store, Phillips placed the baby carrier into a red shopping cart, and she and Swafford walked to an area of the store containing sports-team branded clothing. Swafford and Phillips each selected clothing, removed it from the hangers, returned the hangers to the display racks, and placed the merchandise into the shopping cart. Hutcheson later indicated that removing the merchandise from the hanger before placing it in the cart was not normal behavior.

[4] Swafford and Phillips walked to the escalator, where they abandoned the red shopping cart and rode the escalator to the second floor, with Phillips carrying the baby carrier and Swafford the merchandise. Once upstairs, Phillips placed the baby carrier in a black shopping cart and Swafford placed the merchandise in the cart's front basket. Up to this point, Swafford's backpack had appeared to be of normal size, as if not overfilled with contents.

[5] Swafford and Phillips went to the children's clothing area, where they both removed clothing from hangers, returned the empty hangers to the display racks, and placed the merchandise in the cart. Swafford also took merchandise from a shelf before walking with Phillips to the men's department. In the men's department, Swafford and Phillips took the cart, merchandise, baby carrier, and backpack into a fitting room. When Swafford and Phillips exited the fitting room several minutes later, their cart did not appear to contain, and neither was carrying, any merchandise. Swafford's backpack, however, appeared to be noticeably larger in size, as if now holding additional items. Eventually, Swafford and Phillips exited the store, got into their vehicle, and drove away.

[6] On July 27, 2025, the State charged Swafford with Class A misdemeanor theft.¹ During the bench trial, Phillips denied that either she or Swafford had taken any merchandise from the store. Phillips claimed that she and Swafford had gone to the dressing room because their daughter had had a dirty diaper that had needed to be changed. Phillips further claimed that they had thrown the dirty diaper away in the women's restroom on their way out of the store. Hutcheson, however, testified that store employees had not found any evidence of the dirty diaper in either the fitting room or the women's restroom. Hutcheson further testified that because the merchandise in question had not been of sufficient value, it had not had asset tags attached, meaning that it would not have set off an alarm when Swafford and Phillips had exited the store. Following the presentation of evidence, the trial court found Swafford guilty as charged. The trial court sentenced Swafford to 180 days of incarceration, with 178 days suspended. Although the trial court had indicated in its oral sentencing statement that it was “not issuing any fines [or] court costs[,]” Tr. Vol. II pp. 92–93, its written sentencing order stated that “[t]he Court is assessing Court Costs and Fees in the amount of $100.00[.]” Appellant's App. Vol. II p. 38.

Discussion and Decision

[7] Swafford contends that the State produced insufficient evidence to sustain her conviction for Class A misdemeanor theft.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable factfinder 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 innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (internal brackets, citations, emphasis, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

[8] Indiana Code section 35-43-4-2(a) provides that “[a] person who 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, commits theft, a Class A misdemeanor.” Thus, in order to prove that Swafford had committed theft, the State had to prove that she had knowingly or intentionally exerted unauthorized control over the property of JC Penney with the intention to deprive JC Penney of the value or use of the property.

[9] The evidence most favorable to the judgment supports the reasonable inference that Swafford had committed theft by concealing merchandise in her backpack before exiting the store with the merchandise without paying. Swafford and Phillips had removed the merchandise from hangers and placed the merchandise in their cart before returning the hangers to the display racks, behavior, which Hutcheson testified was not normal behavior. Furthermore, while the merchandise had been visible in the cart when Swafford and Phillips had entered the fitting room, it was no longer visible after Swafford and Phillips had exited the fitting room. The merchandise in question was never recovered from either the fitting room or the cart. Importantly, Swafford's backpack appeared to be noticeably larger, i.e., fuller, after they had left the fitting room.

[10] While Phillips testified that neither she nor Swafford had taken anything from the store, the trial court, acting as the trier-of-fact, was not obligated to believe Phillips's testimony and did not. See Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011) (“[T]he fact finder is best positioned to judge the credibility of these witnesses, is free to credit or discredit testimony, and weigh conflicting evidence.”) The evidence most favorable to the trial court's judgment is sufficient to prove that Swafford had committed Class A misdemeanor theft. Swafford's claim to the contrary amounts to nothing more than a request to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

[11] The judgment of the trial court is affirmed, and the matter is remanded to the trial court with instructions.²

FOOTNOTES

1.   Phillips was also charged with, and convicted of, Class A misdemeanor theft.

2.   We note that there is a discrepancy between the trial court's oral sentencing statement and its written sentencing order. In its oral statement, the trial court indicated that it was “not issuing any fines [or] court costs[.]” Tr. Vol. II pp. 92–93. This statement is contradicted, however, by the trial court's written order, which indicates that “[t]he Court is assessing Court Costs and Fees in the amount of $100.00[.]” Appellant's App. Vol. II p. 38 (emphasis omitted). We remand the matter to the trial court with instructions for the court to reconcile the discrepancy between the trial court's oral statement and written order.

Bradford, Judge.

Tavitas, C.J., and Felix, J., concur.