May, J.
Tony McMiller appeals his convictions for Class A misdemeanor theft and Class B misdemeanor disorderly conduct. …
On December 13, 2016, McMiller and Karri Garcia spent the day together, purchasing multiple items with Garcia’s husband’s credit card. McMiller and Garcia went to Scotty’s Brewhouse, ordered food and drink, and ate the food and drink they ordered. When the bill was presented, Garcia tried to pay with her husband’s credit card, but it was declined. The manager of the restaurant was called to the table and learned McMiller and Garcia could not pay the bill. The manager called the police.
… After learning Garcia’s credit card had been declined, Officer Musser asked McMiller if he was going to pay the bill, and McMiller offered his SSI debit card, which was also declined. McMiller said he called his sister and she told him she would come to the restaurant and pay the bill after she got off work. She did not do so. Garcia and McMiller attempted to get other restaurant patrons to pay their bill, but no one would pay it.
After approximately one hour, Officers placed McMiller and Garcia under arrest. Because it was cold outside, Officer Musser sat McMiller on a bench inside the restaurant while he waited for the wagon to arrive to transport McMiller to the Marion County Jail.
McMiller was “talking loudly, upset obviously because he was going to jail.” He also started “bothering the patrons that were sitting in the booth behind them trying to get them to engage in conversation and pay for his bill.” …
… On May 9, 2017, the trial court held a bench trial. At the end of the bench trial, the trial court found McMiller guilty of Class A misdemeanor theft and Class B misdemeanor disorderly conduct. …
“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.” Ind. Code § 35-43-4-2(a) (2014). … The mens rea element of a crime “may be proven by circumstantial evidence alone, and may be inferred from the facts and circumstances of each case.” Baxter v. State, 891 N.E.2d 110, 121 (Ind. Ct. App. 2008).
The State presented evidence that McMiller and Garcia consumed food and drink from Scotty’s Brewhouse and that payment was not made for that food and drink. However, the State did not present evidence that, at any time during the incident, McMiller behaved in a way that could suggest he consumed the food and drink with an intent to deprive Scotty’s Brewhouse of the value thereof.
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… Officer Pickerrell testified he learned on the scene that McMiller “thought Ms. Garcia was taking McMiller out to dinner[.]” Officer Pickerrell admitted “it was fair to assume that if a person is being taken out to dinner they do not think that they have to pay for it[.]” Officer Pickerrell and McMiller testified the card Garcia submitted for payment worked properly earlier in the day.
… McMiller asked other patrons of the restaurant to pay the bill, and they did not. Officer Musser testified another patron came up to him and told him they would like to pay for McMiller and Garcia’s meal, but they were not permitted to do so. …
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While it is not our role to reweigh the evidence or judge the credibility of witnesses, we also cannot sustain a conviction for a crime the State did not prove. See Martin v. State, 157 Ind. App. 380, 385, 300 N.E.2d 128, 131 (1973) … Here, the State presented sufficient evidence McMiller consumed food and drink for which he thereafter could not pay, and thus McMiller deprived Scotty’s Brewhouse of the value of the food and drink. See Ind. Code § 35-43-4-2(a) (elements of theft). However, the State has not proven McMiller had the intent to deprive Scotty’s of the value when he consumed the food and drink. …
To prove McMiller committed Class B misdemeanor disorderly conduct, the State had to provide sufficient evidence McMiller (1) recklessly, knowingly, or intentionally (2) made “unreasonable noise” and continued “to do so after being asked to stop.” Ind. Code § 35-45-1-3(a)(2) (2014). …
The State presented evidence McMiller was “talking loudly, upset obviously because he was going to jail.” In addition, he was “disrupting the booth next to . . . where he was sitting.” … We conclude the State presented sufficient evidence McMiller committed Class B misdemeanor disorderly conduct. …
… Accordingly, we reverse McMiller’s theft conviction and affirm his disorderly conduct conviction.
Reversed in part and affirmed in part.
Vaidik, C.J., and Altice, J., concur.