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

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 Code § 35-44-3-3 (effective July 1, 2012, Title 35 Article 44 was repealed and replaced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
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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
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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
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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.
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