Sterlen Shane Keller v. State of Indiana ( 2013 )

Jun 26 2013, 8:39 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN E. RIPSTRA GREGORY F. ZOELLER
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STERLEN SHANE KELLER, )
)
Appellant-Defendant, )
)
vs. ) No. 59A01-1206-CR-271
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ORANGE CIRCUIT COURT
The Honorable Larry R. Blanton, Judge
Cause No. 59C01-1010-MR-108
June 26, 2013
OPINION ON REHEARING - FOR PUBLICATION
BARNES, Judge
The State petitions for rehearing following our opinion in Keller v. State, No.
59A01-1206-CR-271 (Ind. Ct. App. Apr. 4, 2013).1 Although we grant the State’s
petition, we affirm our opinion in all regards.
Keller admitted to police that he had taken mail from Collier’s mailbox on two
occasions, and the State charged Keller with the theft of a Social Security check and the
theft of Edward Jones checks. In our original opinion, we concluded that the conviction
for the theft of the Social Security check must be vacated based on the application of the
single larceny rule, which provides, “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.” Raines v. State, 514 N.E.2d 298, 300 (Ind.
1987). We explained:
Simply put, nothing in the record clearly shows that Keller
did in fact take the Social Security check and the Edward
Jones checks on two different occasions as opposed to during
a single transaction. Without more the State has not
established that Keller had a distinct intent to take the Social
Security check and the Edward Jones checks. Accordingly,
the separate convictions for Counts 4 and 5 cannot stand.
Keller, slip op. at 21-22.
In its petition for rehearing, the State does not challenge our conclusion that the
evidence does not clearly establish that Keller took the Social Security check and the
Edward Jones checks from the mailbox on separate occasions. Instead, the State argues,
“[r]egardless of whether the social security check might have been taken from the
1
Keller filed a petition for transfer on May 14, 2013. Pursuant to Indiana Appellate Rule 55, we issue
this opinion.
2
mailbox at the same time of the Edward Jones checks, the Defendant made an
independent decision to exert control over three Edward Jones checks by cashing them.”
Rehearing Pet. p. 3. According to the State, Keller’s cashing of the three Edward Jones
checks was an act of unauthorized control separate from his taking of the Social Security
checks from the mailbox.
Contrary to the State’s assertion, we cannot disregard Keller’s act of taking the
checks from the mailbox because that is the point at which Keller began knowingly or
intentionally exerting unauthorized control over them with the intent to deprive Collier of
their value or use. See Ind. Code § 35-43-4-2(a) (defining theft). Regardless of what
Keller did with the checks after he took them—whether he put them in his garage or
cashed them—he committed the offense when he took the checks from Collier’s mailbox
and from that point on he committed a single continuing act of theft. See Study v. State,
602 N.E.2d 1062, 1068 (Ind. Ct. App. 1992) (explaining that “only one crime occurs
when a thief exercises unauthorized control over the property of the owner with the intent
to deprive the owner of the use and benefit of the property on day 1, and continues to
deprive the owner of property of its use and benefit for many days thereafter”); Allread v.
State, 582 N.E.2d 899, 901 (Ind. Ct. App. 1991) (“[O]ne who has already deprived the
rightful owner of property may not be held to have subsequently stolen the same property
from the same owner unless it had been restored to the rightful owner during the
interim.”).
The State relies on Study in which we affirmed two theft convictions where the
defendant exerted unauthorized control over two checks by depositing one and cashing
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the other. Study, 602 N.E.2d at 1068. Study, however, is factually distinguishable
because the victims gave Study checks to invest and, therefore, Study did not exert
unauthorized control over the checks with an intent to deprive the owners of their value
until he deposited one and cashed the other. Id. Here, there is no contention that Collier
gave Keller the Edward Jones checks so as to make the cashing of them the operative
exertion of unauthorized control over them.
Further, we are not persuaded by the State’s argument that our holding disserves
the purpose of the single larceny rule—to punish a single criminal design only once. See
Taylor v. State, 879 N.E.2d 1198, 1204 (Ind. Ct. App. 2008). Keller was punished for
taking the mail, a single criminal design, when he was convicted of and sentenced for
theft. To the extent that Keller’s subsequent decision to cash some of the checks he had
taken evidenced an additional criminal design, the State could have charged him with the
theft of those funds (as opposed to theft of the checks), forgery, or any other applicable
offense. See Taylor, 879 N.E.2d at 1204 (upholding auto theft and theft convictions
where, upon deciding to abandon the car he stole, Taylor made an independent decision
to steal a purse that was in the car). The State’s decision not to charge Keller for the act
of cashing the checks further underscores the importance of the charging documents and
its contents. See Keller, slip op. at 31.
In this regard, the State’s reliance on Wiseman v. State, 521 N.E.2d 942, 946 (Ind.
1988), is misplaced. In that case, Wiseman was charged with seven counts of theft of
cash belonging to a bank when, after depositing stolen checks into an account in his
name, he cashed seven personal checks drawn from that account. Our supreme court
4
affirmed the separate theft convictions because they were clearly separate crimes
involving separate checks and occurring at different times, on various days, and at
multiple bank branches.2 Wiseman, 521 N.E.2d at 946. Here, however, the State charged
Keller with theft of the Edward Jones checks, not theft of the funds from the Edward
Jones account.
Similarly distinguishable is Benberry v. State, 742 N.E.2d 532, 538 (Ind. Ct. App.
2001), which the State relies on for the proposition that convictions for theft and forgery
were not the same offense under the actual evidence test. Unlike in Benberry, the
application of the Double Jeopardy Clause of the Indiana Constitution is not at issue here.
Moreover, Keller was not charged with the separate offenses of forgery and theft; he only
was charged with theft of the checks.3
Finally, we are not persuaded by the State’s argument that affirming the separate
convictions for the theft of the Social Security check and the Edward Jones checks would
be consistent with our reasoning in affirming Keller’s conviction for the theft of the
personal checks that were in the glove compartment of the truck Keller stole. We
explained that had Keller simply taken the truck with the checks in the glove
compartment, the single larceny rule would have prohibited the separate conviction for
2
Notably, the Wiseman court reduced seven forgery convictions to a single count of forgery because
“[t]he seven stolen checks were all presented to the bank at the same time, on the same date, to the same
person, and were all listed on one deposit slip.” Wiseman, 521 N.E.2d at 946.
3
The State does not acknowledge that the Benberry court did apply the single larceny rule to reduce
Benberry’s multiple theft convictions. Specifically, Benberry was charged with three counts of theft for
purchasing four stolen credit cards belonging to three different people. Benberry challenged the multiple
theft convictions under the single larceny rule, and we held that, because the uncontroverted evidence
showed that Benberry purchased the credit cards at the same time and from the same place and that she
did not look at the cards prior to deciding to purchase them, the theft of the four credit cards could
constitute only one offense. Benberry, 742 N.E.2d at 536.
5
the theft of the personal checks and auto theft. Keller, slip op. at 22. We reasoned that
when Keller put the checks in his garage, used one to pay a bill, and deposited two other
checks he made an independent decision to exert control over the checks so that merging
the theft and auto theft convictions did not serve the purpose of the rule. Id. Had Keller
stolen the mailbox with the various checks in it and later cashed the checks, this
reasoning would apply. This is not what happened. Keller exerted unauthorized control
over the various checks when he took them from the mailbox, and his cashing of the
Edward Jones checks was merely a continuation of his exertion of unauthorized control.
Because the evidence does not clearly establish that the Social Security check and
the Edward Jones checks were taken from the mailbox on separate occasions, separate
convictions are not warranted. We affirm our original opinion in all regards.
BAKER, J., concurs.
RILEY, J., would deny petition for rehearing.
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