When Seth Curtis, wielding a gun, climbed back over the pharmacy counter, he had a bag containing Opana pills and the keys belonging to a pharmacy technician’s car. Seconds later, he exited the store, located the car and drove away.
No, said the Indiana Court of Appeals.
Curtis robbed a CVS store in Delaware County in July 2011. After threatening a customer, he got behind the pharmacy counter where he pointed his gun at the pharmacist’s head and demanded the Opana pills. Next, he turned his gun on the pharmacy technician and demanded her car keys.
On appeal, Curtis argued that his convictions arising from his conduct behind the counter – the two counts of armed robbery as a Class B felony – were part of a single larceny because the taking of the prescription pain medications and the car keys happened within seconds of each other at the same place.
The Court of Appeals pointed to the Indiana Supreme Court decisions in Ferguson v. State, 273 Ind. 468, 470, 405 N.E.2d 902, 904 (1980) and McKinney v. State, 272 Ind. 689, 400 N.E.2d 1378 (1980). In Ferguson, the Supreme Court held the single larceny rule does not apply to the situation where a robber takes the individual property of separate individuals. In McKinney, the justices ruled that the robbery of a business and of the business’s owner were not one armed robbery.
In Curtis, the Court of Appeals found the defendant robbed two separate and distinct individuals.
“He first robbed (the pharmacist) in her capacity as an employee of CVS, of property belonging to the pharmacy, i.e., the Opana pills,” Judge Cale Bradford wrote for the court. “He then robbed (the pharmacy technician) of her personal property, i.e., her car keys. Thus, in light of the Indiana Supreme Court’s holdings in Ferguson and McKinney, we conclude that Curtis’s actions did not constitute one single unitary robbery, but rather constituted two separate robberies.”
Curtis also contended that his convictions for taking the car keys then taking the car – one count of armed robbery as a Class B felony and one count of auto theft as a Class D felony – violated the single larceny rule. Echoing his earlier argument, Curtis said the two acts were part of a single larceny because he stole the car seconds after he took the keys.
Again, the Court of Appeals turned to precedent. Reading Bivins v. State, 642 N.E.2d 928, 945 (Ind. 1994) where the Indiana Supreme Court ruled the parking lot and the motel room were separate places, the appellate court declined to deem the CVS parking lot was part of the actual pharmacy.
Citing its own decision in J.R. v. State, 982 N.E.2d 1037 (Ind. Ct. App. 2013), the Court of Appeals noted Curtis was charged with two separate and distinct crimes for the offenses of armed robbery under Indiana Code section 35-42-5-1 and auto theft under I.C. section 35-43-4-2.5.
“In light of the Indiana Supreme Court’s opinion in Bivins and our opinion in J.R., we conclude that the taking of (the pharmacy technician’s) vehicle from the CVS parking lot was a separate and distinct act from the taking of her car keys during the robbery of the pharmacy itself,” Bradford wrote.
The case is Seth Curtis v. State of Indiana, 18A02-1501-CR-59.