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COA rules on man's theft conviction for third time

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Following an order from the Indiana Supreme Court that the lower appellate court more fully address the Proportionality Clause of the Indiana Constitution, the Indiana Court of Appeals has again upheld a man’s felony theft conviction.

The judges concluded that the classification of theft as a Class D felony doesn’t violate the Proportionality Clause under Article I, Section 16 of the state constitution. This is the third time the appellate court has addressed Marvin Ervin’s conviction, issuing its first not-for-publication decision in September 2010, and its second unpublished memorandum decision in April 2011 following remand from the Indiana Supreme Court.

On July 7, the justices again ordered the COA to take another look at Ervin’s argument involving the Proportionality Clause. Ervin was arrested and charged with Class D felony theft for taking a bike from an apartment building and selling it at a pawn shop. He offered a proposed jury instruction on Class A misdemeanor conversion, which was overruled by the trial court.

In Thursday’s opinion in Marvin Ervin v. State of Indiana (NFP), Nos. 49A05-1107-CR-347; 49A02-1002-CR-123, the judges noted that the decision set forth the facts and disposition of the remaining issues as were reported in its previous NFP decisions with minimal modifications. They affirmed the admission of pawn shop documents into evidence pursuant to the business record exception of the hearsay rules.

They also found the trial court didn’t abuse its discretion by refusing to instruct the jury on conversion in light of Morris v. State, 921 N.E.2d 40 (Ind. Ct. App. 2010), in which the appellate court held that a criminal conversion instruction as a lesser-included offense of felony theft was warranted by the evidence. In the instant case, the judges found no evidentiary dispute about Ervin’s intent to deprive someone of any part of the property’s value or use, as is required to convict someone of Class D felony theft. The intent element is not required to convict someone of Class A misdemeanor conversion.

The COA then addressed Ervin’s argument that the classification for Class D felony theft violates the Proportionality Clause because that offense is “one and the same” as criminal conversion, a Class A misdemeanor. The judges found Ervin’s reliance on Morris for the proposition that the two offenses are one and the same to be unpersuasive. They noted that the Indiana General Assembly has not merged the two offenses into one or amended the statutes to change the elements of the offenses, wrote Judge John Baker.

“In our view, we find nothing ‘incongruous or unfair’ about the legislature’s decision to punish the two crimes differently,” he wrote.

They noted that time and again, the appellate court has found that an evidentiary distinction exists between the two offenses in practical application. The penalty for Class D felony theft is not unconstitutionally disproportionate to that of Class A misdemeanor conversion, he wrote.

Ervin’s attorney, Joel Schumm, told Indiana Lawyer that he was surprised the decision was classified as an NFP because it is an issue of first impression. He said he’s asked that it be published. He believes the opinion conflicts with the language in Morris and other cases. He said the Model Penal Code and most states distinguish misdemeanors and felonies based on the value of property taken. He’s going to seek transfer to the Supreme Court.
 

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  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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