Poling v. State
2010 Ind. App. LEXIS 2445
| Ind. Ct. App. | 2010Background
- Poling stole cigarettes from Save-On Liquor in Bluffton in April 2007.
- Roop observed suspicious conduct but was unsure; investigation pursued.
- Poling left the store without paying after concealing cigarettes.
- Surveillance tape confirmed Poling’s theft of cigarettes.
- Poling was charged with Class D felony theft; trial occurred in February 2010; conviction followed.
- Poling sought a jury instruction on criminal conversion as a lesser included offense; the trial court denied the instruction and the State read a statute during closing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of conversion instruction as lesser offense | Poling contends there was a serious evidentiary dispute about intent. | Poling argues conversion should be instructed as lesser included offense. | No abuse; no serious evidentiary dispute found. |
| Prosecutorial misconduct by reading statute in closing | Poling asserts improper bolstering and misstatement of law. | State contends reading the statute is proper argument of law and facts. | Waived for improper preservation; no fundamental error. |
Key Cases Cited
- Wright v. State, 658 N.E.2d 563 (Ind.1995) (test for serious evidentiary dispute in lesser-included-offense decision)
- Brown v. State, 703 N.E.2d 1010 (Ind.1998) (abuse of discretion standard when no dispute shown)
- Maisonet v. State, 448 N.E.2d 1052 (Ind.1983) (no error denying conversion instruction where intent disputed but not proven)
- Morris v. State, 921 N.E.2d 40 (Ind.Ct.App.2010) (discussion of theft vs. conversion; dicta rejected for this case's rule framework)
- Matney v. State, 681 N.E.2d 1152 (Ind.Ct.App.1997) (prosecutorial misconduct; harmless error under specific facts)
- Hand v. State, 863 N.E.2d 386 (Ind.Ct.App.2007) (prosecution may argue law and facts in closing; permissible)
- Lainhart v. State, 916 N.E.2d 924 (Ind.Ct.App.2009) (prosecutorial misconduct standard requiring fundamental error to reverse without admonishment)
- Washington v. State, 808 N.E.2d 617 (Ind.2004) (standard for determining when to grant lesser-included-offense instructions)