J.R. v. State of Indiana , 2013 Ind. App. LEXIS 7 ( 2013 )


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  • FOR PUBLICATION                                               FILED
    Jan 15 2013, 9:51 am
    CLERK
    of the supreme court,
    court of appeals and
    tax court
    ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:
    JOEL M. SCHUMM                                  GREGORY F. ZOELLER
    Indianapolis, Indiana                           Attorney General of Indiana
    CYNTHIA L. PLOUGHE
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    J.R.,                                           )
    )
    Appellant-Respondent,                   )
    )
    vs.                              )       No.    49A05-1204-JV-175
    )
    STATE OF INDIANA,                               )
    )
    Appellee-Petitioner.                    )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Gary Chavers, Judge Pro Tempore
    Cause No. 49D09-1108-JD-2071
    January 15, 2013
    OPINION - FOR PUBLICATION
    KIRSCH, Judge
    J.R. appeals from his adjudication as a delinquent child for burglary,1 which would
    be a Class B felony if committed by an adult, theft,2 which would be a Class D felony if
    committed by an adult, auto theft,3 which would be a Class D felony if committed by an
    adult, and resisting law enforcement,4 which would be a Class A misdemeanor if
    committed by an adult. He raises the following restated issue: whether his adjudications
    for both theft and auto theft are barred due to the single larceny rule.
    We affirm.
    FACTS AND PROCEDURAL HISTORY
    On August 5, 2011, Donald Overby’s Indianapolis residence was burglarized. A
    handgun, a television, and an iPod were taken from the home. His 2007 Chevrolet
    Avalanche was also taken from the attached garage. The Avalanche had Onstar tracking
    capability, which enabled the police to locate the vehicle in the 3400 block of Cecil
    Avenue in Indianapolis, Indiana. A police officer went to the location, observed the
    vehicle, and parked nearby to wait. A short time later, he saw two individuals enter the
    vehicle, drive away, and then pull into another parking lot. The officer activated his
    emergency lights and pulled in behind the Avalanche.                    The driver, who was later
    identified as J.R., stepped out of the vehicle, and the officer ordered him to return to the
    vehicle.      J.R. then fled on foot, despite the officer’s command to stop.                   J.R. was
    1
    See 
    Ind. Code § 35-43-2-1
    .
    2
    See 
    Ind. Code § 35-43-4-2
    .
    3
    See 
    Ind. Code § 35-43-4-2
    .5.
    4
    See 
    Ind. Code § 35-44-3-3
     (effective July 1, 2012, Title 35 Article 44 was repealed and replaced
    with Title 35 Article 44.1).
    2
    eventually caught on another street and returned to the area where the Avalanche was
    located. Overby was brought to the scene where the vehicle was located. As J.R. was
    being searched incident to arrest, police pulled an iPod from his pocket. J.R. nodded
    toward Overby and stated, “that belongs to him.” Tr. at 26. Overby confirmed that he
    owned the iPod.
    The State filed a petition alleging J.R. to be delinquent because he had committed
    acts that would be Class B felony burglary, Class D felony theft, Class D felony auto
    theft, and Class A misdemeanor resisting law enforcement if committed by an adult. A
    fact-finding hearing was held, at the conclusion of which, the juvenile court found the
    State had met its burden on each of the charges. At the disposition hearing, the juvenile
    court placed J.R. on probation with a suspended commitment to the Department of
    Correction. J.R. now appeals.
    DISCUSSION AND DECISION
    J.R. argues that the juvenile court’s true findings for both theft and auto theft
    cannot stand because, under the “single larceny rule,” there was only one offense. Under
    the single larceny rule, when several articles of property are taken at the same time, from
    the same place, belonging to the same person or to several persons there is but a single
    “larceny,” i.e. a single offense. Taylor v. State, 
    879 N.E.2d 1198
    , 1204 (Ind. Ct. App.
    2008) (citing Raines v. State, 
    514 N.E.2d 298
    , 300 (Ind. 1987)). “‘The rationale behind
    this rule is that the taking of several articles at the same time from the same place is
    pursuant to a single intent and design.’”       
    Id.
     (quoting Raines, 514 N.E.2d at 300).
    Therefore, if only one offense had been committed, there may be only one judgment and
    3
    one sentence. Benberry v. State, 
    742 N.E.2d 532
    , 536 (Ind. Ct. App. 2001). Protections
    for individuals facing multiple convictions for a single act apply equally to juvenile
    adjudications. H.M. v. State, 
    892 N.E.2d 679
    , 682 (Ind. Ct. App. 2008), trans. denied.
    In this case, the State filed a petition alleging J.R. to be delinquent because he had
    committed an act that would be Class D felony theft if committed by an adult. The State
    specifically alleged that J.R. broke into Overby’s home and stole the victim’s television
    iPod, and handgun. Appellant’s App. at 29. The State also filed a petition alleging J.R. to
    be delinquent because he committed an act that would be Class D felony auto theft if
    committed by an adult. That count specifically alleged that J.R. stole Overby’s 2007
    Chevrolet Avalanche. These offenses, although occurring at the same time and at the
    same residence, are distinct because they each involved the violation of a different
    statute.
    J.R. relies on Stout v. State, 
    479 N.E.2d 563
     (Ind. 1985) for his contention that his
    true findings for theft and auto theft cannot stand. In that case, the defendant was
    charged with two counts of theft; in one count, he was charged with the theft of various
    items, including a television, a chain saw, and five guns, and in a second count, he was
    charged with the theft of an automobile from the attached garage. 
    Id. at 568
    . Both
    counts alleged violation of Indiana Code section 35-43-4-2(a). 
    Id.
     Our Supreme Court
    found that the defendant’s convictions for both counts of theft violated the single larceny
    rule because the defendant exerted unauthorized control over several items of personal
    property, including an automobile, all of which were taken at the same time from the
    same place, the victim’s home, and “[t]his constituted but one offenses in violation of a
    4
    single statute.” 
    Id.
     The Court stated that, in deciding an issue regarding the single
    larceny rule, the “the proper focus is on whether ‘the offenses to be prosecuted and
    punished are the same, and not whether the offenses spring from the same act or
    operative circumstances . . . . The ultimate focus is on the identity of the offenses, not on
    the identity of their source.’” 
    Id.
     (quoting Elmore v. State, 
    269 Ind. 532
    , 539, 
    382 N.E.2d 893
    , 897 (1978), abrogated on other grounds by Richardson v. State, 
    717 N.E.2d 32
     (Ind.
    1999)). The Court determined that the only distinguishing factor between the two counts
    of theft was the property stolen and reiterated that the State cannot split up a single theft
    offense and make distinct parts of that single offense the basis for separate or multiple
    prosecutions. 
    Id.
    We find Stout to be distinguishable from the present case.           There, the only
    difference between the two theft counts was the identity of the stolen property;
    everything else was the same, including the violated statute. Both counts alleged a
    violation of Indiana Code section 35-43-4-2. Here, such similarity does not exist. In the
    present case, Count II alleged a theft and a violation of Indiana Code section 35-43-4-2.
    Appellant’s App. at 29. Count III alleged an auto theft and a violation of Indiana Code
    section 35-43-4-2.5. 
    Id.
     At the time that Stout was decided, there was no distinct statute
    for the crime of auto theft. Indiana Code section 35-43-4-2.5 was enacted after the
    crimes in Stout occurred. The enactment of this separate statute indicated the General
    Assembly’s intention that auto theft be considered a completely separate offense from
    theft and that violations of the two statutes be considered distinct. Therefore, in Stout, the
    defendant was convicted of two counts of theft, which were identical offenses except for
    5
    the identity of the property stolen. But here, true findings were made as to theft and auto
    theft, which are different offenses and violations of different statutes. We conclude that
    the crimes of theft and auto theft are distinct offenses, and J.R.’s true findings for both
    offenses did not violate the single larceny rule.
    Affirmed.
    NAJAM, J., and MAY, J., concur.
    6
    

Document Info

Docket Number: 49A05-1204-JV-175

Citation Numbers: 982 N.E.2d 1037, 2013 WL 150317, 2013 Ind. App. LEXIS 7

Judges: Kirsch, Najam

Filed Date: 1/15/2013

Precedential Status: Precedential

Modified Date: 10/19/2024