COA rules on man's theft conviction for third time

Back to TopCommentsE-mailPrintBookmark and Share

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addressed Marvin Ervin’s conviction, issuing its first not-for-publication decision in September 2010, and its second unpublished memorandum decision in April 2011 following remand from the Indiana Supreme Court.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.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?