ILNews

Judges reverse theft conviction

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  2. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT