Alec N. Clark v. State of Indiana

FILED
May 30 2019, 9:11 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James D. Crum Curtis T. Hill, Jr.
Coots Henke & Wheeler, PC Attorney General of Indiana
Carmel, Indiana Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alec N. Clark, May 30, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-54
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Gail Z. Bardach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D06-1710-F6-7630
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-54 | May 30, 2019 Page 1 of 5
STATEMENT OF THE CASE
[1] Appellant-Defendant, Alec N. Clark (Clark), appeals his conviction for theft, a
Level 6 felony, Ind. Code § 35-43-4-2(a).
[2] We affirm.
ISSUE
[3] Clark raises one issue on appeal, which we restate as: Whether the State
established by a preponderance of the evidence that proper venue is located in
Hamilton County.
FACTS AND PROCEDURAL HISTORY
[4] On July 30, 2017, Clark and Kassie Werner (Werner), his fiancée, went to
Runyon Equipment Rental, located in Carmel, Indiana, where Werner rented a
commercial riding lawnmower. Werner signed the rental contract, paid for one
day of rent, and drove off with the mower on a Runyon trailer. When Clark
and Werner returned to their residence, they created an online advertisement to
sell the mower. After securing a buyer, they executed the sale in Marion
County, on a Meijer parking lot on the West side of Indianapolis.
[5] About a month later, Runyon Equipment Rental reported the theft to the
Carmel Police Department. After an investigation, police arrested Clark. On
October 19, 2017, the State filed an Information, charging Clark with theft, a
Level 6 felony. On August 30, 2018, the State amended the Information by
filing an habitual offender enhancement. On November 27, 2018, during a
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bifurcated trial in Hamilton County, the jury found Clark guilty as charged and
the trial court dismissed the habitual offender Count on the State’s motion. On
December 31, 2018, the trial court sentenced Clark to 545 days executed, with
365 days of work release.
[6] Clark now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION 1
[7] Not contesting the elements of the theft charge, Clark contends that his
conviction should be overturned because the venue was improper. The right to
be tried in the county in which an offense was committed is a constitutional and
a statutory right. Ind. Const. Art. I, § 13; I.C. § 35-32-2-1. Except as otherwise
provided by law, criminal actions are to be tried in the county where the offense
was committed. I.C. § 35-32-2-1. “If a person committing an offense upon the
person of another is located in one (1) county and the person’s victim is located
in another county at the time of the commission of the offense, the trial may be
in either of the counties.” I.C. § 35-32-2-1(b). Similarly, if the commission of
an offense is commenced in one county and is consummated in another
country, trial may be had in either of the counties. Andrews v. State, 529 N.E.2d
360, 363 (Ind. Ct. App. 1988), reh’g denied, trans. denied.
1
Although we agree with the State that Clark waived the issue on appeal for failing to make an objection to
the venue before the trial court, we elect to address the issue on its merits. See Floyd v. State, 503 N.E.2d 390,
393 (Ind. 1987) (“Many times this [c]ourt has held that a defendant waives error relating to venue when he
fails to make an objection at the appropriate time in the trial court.”)
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[8] Venue is not an element of the offense. Alkhalidi v. State, 753 N.E.2d 625, 628
(Ind. 2001). However, it is the State’s burden to prove that the offenses charged
occurred in the county identified in the charging information. Bryant v. State, 41
N.E.3d 1031, 1037 (Ind. Ct. App. 2015). Venue may be established by a
preponderance of the evidence and need not be proven beyond a reasonable
doubt. Id.
[9] Clark does not dispute that the lawnmower was rented in Hamilton County and
later sold in Marion County, nor does he argue that venue for the crime cannot
lie in multiples counties. Instead, Clark argues that because Werner had signed
a rental agreement which authorized the use of the lawnmower for one day, the
theft did not occur until one day later—when the authorized use had morphed
into unauthorized—while the lawnmower was located in Marion County.
[10] In Bryant, the owner of a pawnshop located in Allen County purchased goods
stolen from victims in Wells County. Bryant, 41 N.E.3d at 1034. Applying I.C.
§ 35-32-2-1(b), this court reasoned that “there is no requirement that Bryant
knew that the victims were in Wells County, only that they were, in fact,
located there.” Finding no mens rea requirement in the statute, the court
concluded that proper venue could be established in Wells County.
[11] Likewise, here, we find it immaterial whether Clark intended to exert
unauthorized use over the lawnmower when the rental agreement was
executed, only that the victim—Runyon Equipment Rental—was in fact
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located in Hamilton County. Accordingly, as venue may be had in Hamilton
County, we conclude that the State properly prosecuted Clark.
CONCLUSION
[12] Based on the foregoing, we hold that the State established by a preponderance
of the evidence that proper venue is located in Hamilton County.
[13] Affirmed.
[14] Bailey, J. and Pyle, J. concur
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