Off-duty Kroger employee’s theft conviction for ‘mislaid’ money reversed

The Indiana Court of Appeals has reversed a ruling against an off-duty grocery store employee after he took money from a self-checkout machine, finding his conviction could not stand under an existing theft statute.

While shopping at a Richmond Kroger store in 2019, a man used a self-checkout station to make a purchase using a $100 bill. The leftover change of his purchase was $83.33, which was left in the dispense tray after the man got distracted and forgot to take the cash before he left the store.

A second customer then approached the station and used a debit card to complete a transaction. After several minutes passed, Williams, an off-duty Kroger employee, approached the station and completed a transaction at the same machine.

Seeing the cash, Williams put it in his pocket and left the store after paying with a credit card. The man who left the cash behind later returned to the store to report what had happened, and the store reviewed surveillance footage of the transactions to find that Williams had taken the money. It gave the man $83 “because it was an off-duty associate that had taken the money,” and then reported the incident to police.

Williams, charged with Class A misdemeanor theft, was alleged by the state to have “knowingly or intentionally exert unauthorized control over the property of Roger Stinson, to-wit: cash with the intent to deprive Roger Stinson of any part of the use or value of the property, contrary to Indiana law.”

Although the case proceeded to a bench trial and charging information identified the victim as Roger Stinson, no person by that name testified, and no witness or exhibit identified Roger Stinson as the man who left the money behind. Regardless, the trial court found Williams guilty as charged and sentenced him to 180 days in jail, all suspended to probation.

But the Indiana Court of Appeals reversed in a Thursday opinion, finding that it could reverse Williams’ conviction solely based on the fact that the State did not present evidence establishing the identity of the man who left the money.

“But there is a more fundamental problem with Williams’s conviction. Indiana’s theft statute does not criminalize the taking of lost or mislaid property, unlike statutes in many other states,” Judge Nancy Vaidik wrote for the appellate court, noting that Indiana used to have such a statute in place in Ind. Code § 35-17-5-5 (1976).

“However, the legislature repealed that statute over forty years ago. If such conduct is to be recriminalized, that is a decision for the legislature. Under the existing theft statute, Williams’s conviction cannot stand,” the panel concluded.