Judges reverse theft conviction

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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.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.