Tyrone Burns v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Aug 21 2020, 8:42 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of Court of Appeals
and Tax Court
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Attorney General of Indiana
Cass County Public Defender Courtney L. Staton
Logansport, Indiana Caryn Nieman-Szyper
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyrone Burns, August 21, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2943
v. Appeal from the
Cass Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. James K. Muehlhausen, Judge
Trial Court Cause No.
09D01-1712-F6-496
Kirsch, Judge.
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[1] Tyrone Burns (“Burns”) appealed his conviction after a jury trial of receiving
stolen auto parts as a Level 6 felony, raising the issue of whether the State
presented sufficient evidence to support his conviction. In a memorandum
decision, we affirmed his conviction. Burns v. State, No. 19A-CR-2943, 2020
WL 3526008 (Ind. Ct. App. June 30, 2020). Burns has petitioned for rehearing
requesting that this court reconsider its decision because we inadvertently erred
in reciting the applicable statute when affirming his conviction. We grant
rehearing for the limited purpose of correcting this mistake and reaffirm our
previous decision in all other respects.
[2] Burns was convicted of receiving stolen auto parts pursuant to Indiana Code
section 35-43-4-2.5. Appellant’s App. Vol. II at 12. That statute set out that a
“person who knowingly or intentionally receives, retains, or disposes of a motor
vehicle or any part of a motor vehicle of another person that has been the
subject of theft commits receiving stolen auto parts, a Level 6 felony.” Ind.
Code § 35-43-4-2.5(c) (2017). On appeal, Burns argued that the State had failed
to present “substantial evidence of probative value” that he knew he was
driving a stolen car. Appellant’s Br. at 4. In affirming his conviction in our
memorandum decision, we found that the evidence presented at trial was
sufficient to prove his knowledge that the car was stolen and to support his
conviction. Burns, 2020 WL 3526008 at *3. However, in making this
determination, we inadvertently set out the incorrect statutory language for the
charged crime and mistakenly stated that the crime with which Burns was
charged required proof of a prior conviction:
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In order to convict Burns of Level 6 felony receiving stolen auto
parts as charged, the State was required to prove that Burns
knowingly or intentionally received the vehicle with the intent to
permanently deprive the owner of any part of its value or use,
that the vehicle was worth at least $750 and less than $50,000,
and that Burns had prior unrelated convictions of theft,
conversion, or receiving stolen property. Ind. Code § 35-43-4-
2.5(c).
Burns, 2020 WL 3526008 at *2. Although the citation to the quoted language is
the correct citation to the Indiana Code for Burns’s charged crime, the statutory
language came from Indiana Code section 35-43-4-2(a)(1) rather than from
Indiana Code section 35-43-4-2.5(c). See Ind. Code § 35-43-4-2(a)(1) (setting
out the elements necessary to support a conviction for Level 6 felony theft).
[3] Indiana Code section 35-43-4-2.5(c) was repealed and replaced with Indiana
Code section 35-43-4-2(a)(1) on July 1, 2018. Pub. L. No. 176-2018 § 7 (2018)
(repealing I.C. § 35-43-4-2.5). Because Burns committed his offense on
December 17, 2017, he was properly charged, and convicted, of receiving stolen
auto parts under Indiana Code section 35-43-4-2.5(c), which does not require
the State to provide proof of a prior conviction to support a Level 6 felony.
Therefore, it is clear from a review of the record that this court mistakenly set
out the statutory elements for Indiana Code section 35-43-4-2(a)(1) rather than
the statute at issue. We, therefore, correct our opinion to reflect that the correct
statutory language for the crime of which Burns was charged and convicted
provides that a “person who knowingly or intentionally receives, retains, or
disposes of a motor vehicle or any part of a motor vehicle of another person
Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CR-2943 | August 21, 2020 Page 3 of 5
that has been the subject of theft commits receiving stolen auto parts, a Level 6
felony.” Ind. Code § 35-43-4-2.5(c) (2017).
[4] This mistake did not change our analysis of whether the State presented
sufficient evidence to prove that Burns knew he was driving a stolen car and to
sustain his conviction for receiving stolen auto parts as a Level 6 felony.
Contrary to Burns’s assertion, this error did not change the “law of the case,”
and he is not entitled to a reversal of his conviction on this basis. Appellant’s Pet.
For Reh’g at 6-7. The law-of-the-case doctrine provides that an appellate court’s
determination of a legal issue binds both the trial court and the court on appeal
in any subsequent appeal involving the same case and substantially the same
facts. Dutchmen Mfg., Inc. v. Reynolds, 891 N.E.2d 1074, 1082 (Ind. Ct. App.
2008) (citing Pinnacle Media, L.L.C. v. Metro. Dev. Comm’n of Marion Cty., 868
N.E.2d 894, 901 (Ind. Ct. App. 2007), trans. denied), trans. denied. The purpose
of the doctrine is to minimize unnecessary relitigation of legal issues once they
have been resolved by an appellate court. Id. Accordingly, all issues decided
directly or by implication in a prior decision are binding in all further portions
of the same case. Id. To invoke the law-of-the-case doctrine, the matters
decided in the earlier appeal must clearly appear to be the only possible
construction of an opinion. Id. at 1082-83. Therefore, questions not
conclusively decided in the earlier appeal do not become the law of the case. Id.
(citing Hanson v. Valma M. Hanson Revocable Trust, 855 N.E.2d 655, 662 (Ind. Ct.
App. 2006)). Moreover, statements that are not necessary in the determination
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of the issues presented are dicta, are not binding, and do not become the law of
the case. Id.
[5] Here, although the incorrect statutory language was set out, there was no
“determination of a legal issue” regarding whether Burns had a prior conviction
for theft, conversion, or receiving stolen property because he was not charged as
such. Appellant’s App. Vol. II at 12. That issue was not presented to the jury and
was not presented on appeal. The only issue before this court on appeal was
whether the State had presented sufficient evidence to prove that Burns knew
the vehicle was stolen, and we concluded that the evidence presented a trial
established that he knew the vehicle was stolen and that the State had met its
burden. Burns, 2020 WL 3526008 at *2-*3. The fact that we inadvertently set
out the incorrect statutory elements did not constitute the determination of a
legal issue and did not change the “law of the case.” We, therefore, reject
Burns’s argument that his conviction should be reversed and reaffirm his
conviction.
[6] Affirmed on rehearing.
Najam, J., and Brown, J., concur.
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