The Indiana Court of Appeals reversed a defendant's conviction of theft because the trial court failed to instruct the jury on conversion as a lesser-included offense of theft.

In Roger L. Morris v. State of Indiana, No. 02A03-0905-CR-210, the trial judge declined Roger Morris' request for an instruction on conversion partly because of a Court of Appeals case in which the appellate court found theft and conversion offenses to appear to be one and the same from a practical standpoint, but that there was a difference in the mens rea required. Morris was convicted of Class D felony theft and found to be a habitual offender.

The appellate court in the instant case found Morris' case illustrated the "elusive difference" between theft and conversion as laid out by the legislature. Department store security saw Morris stuffing merchandise into a black bag. He was recognized because he had previously shoplifted from the store. When approached by security, he dropped the bag and ran out of the store. He was caught by the employees and only had a small knife and a toothbrush on him.

It's clear Morris exerted unauthorized control over the store's items because he tried to hide the fact he was putting them in the bag and had no way to pay for them, which would support a conversion conviction. But the evidence disputes whether Morris intended to deprive the store of the use and value of the clothing for any period of time, which is needed to convict him of theft, wrote Judge Terry Crone.

In light of Morris' seemingly reckless actions and the fact he only had the toothbrush and small knife on him, a reasonable jury may find him guilty of conversion instead of theft.

Even viewing theft and conversion as one and the same crime, the law supports giving the lesser included offense instruction, the judge continued. If the two crimes can be proven by identical elements, but carry different sentencing ranges, then prosecutors would be likely to pursue the Class D felony charge to get the longer sentence for a theft conviction. 

"In sum, if criminal conversion as a class A misdemeanor and theft as a class D felony are indeed two different crimes as outlined by our legislature, then the trial court abused its discretion by failing to instruct the jury as to the lesser-included offense of conversion," wrote Judge Crone. "If the elements of conversion and theft have no practical difference, then the rule of lenity and/or the proportionality clause of the U.S. Constitution would entitle Morris to have the jury instructed on both crimes."

Judge Nancy Vaidik concurred in result. The judges remanded the case for retrial.