29 N.E.3d 792
Ind. Ct. App.2015Background
- Ellis was charged with theft and attempted theft for taking a bag of fertilizer and drain opener from Schlemmer’s Hardware in LaGrange on May 13, 2013.
- The State charged theft May 15, 2013 and added attempted theft May 22, 2014, both Class D felonies.
- The State argued two separate offenses occurred during a single protracted episode; the jury convicted Ellis on both counts.
- During closing, the State stated two crimes occurred, creating a potential ambiguity about whether one or two convictions were sought.
- The trial court instructed the jury to consider each count separately; Ellis was convicted on both counts and sentenced to a 2.5-year aggregate term with six months suspended.
- Ellis appeals arguing double jeopardy, sentence appropriateness under Rule 7(B), and denial of additional credit time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy: two convicts for theft and attempted theft | Ellis (State) contends two offenses were distinct | Ellis argues the State’s closing created a risk of duplicative conviction | Not violated under actual-evidence test |
| Sentence appropriateness under Rule 7(B) | Ellis argues aggregate term is inappropriate given low value of goods | Court properly weighed aggravators and mitigators and applied pre-2014 law | Not inappropriate; affirmed |
| Credit-time for time served; waiver of argument | Ellis seeks additional credit for Allen County jail time | Appellant waived by lacking proper record citations | Waived; denial affirmed |
Key Cases Cited
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (actual evidence test for double jeopardy)
- Spivey v. State, 761 N.E.2d 831 (Ind. 2002) (actual-evidence test governs multiple convictions)
- Lee v. State, 892 N.E.2d 1231 (Ind. 2008) (reasonable-possibility standard for false double jeopardy)
- Garrett v. State, 992 N.E.2d 710 (Ind. 2013) (clarifies application of actual evidence test)
- Rexroat v. State, 966 N.E.2d 165 (Ind. Ct. App. 2012) (double jeopardy analysis framework)
- Smith v. State, 881 N.E.2d 1040 (Ind. Ct. App. 2008) (double jeopardy review may be raised on appeal)