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Ellis v. State

Court of Appeals of Indiana

April 21, 2015

Jeremy Ellis, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 793

Appeal from the LaGrange Circuit Court. The Honorable J. Scott VanDerbeck, Judge. Cause No. 44C01-1305-FD-82.

ATTORNEY FOR APPELLANT: Cara Schaefer Wieneke, Special Assistant to the State Public Defender, Plainfield, Indiana.

ATTORNEY FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, Indiana.

Najam, Judge. Mathias, J., and Bradford, J., concur.

OPINION

Page 794

Najam, Judge.

Statement of the Case

[¶1] Jeremy Ellis appeals his convictions and sentence for theft and attempted theft, both as Class D felonies, following a jury trial. Ellis raises three issues for our review. First, he asserts that his two convictions violate Indiana's prohibitions against double jeopardy either because the prosecutor told the jury that it should consider Ellis' first offense as evidence of Ellis' intent to commit the second offense or because the prosecutor expressly stated that the State was seeking only one conviction against Ellis. The first statement is not problematic under Indiana's Double Jeopardy Clause. And while we do not approve of the entry of multiple convictions when the prosecutor does not request it, nonetheless Ellis was charged with multiple offenses and the evidence demonstrated multiple offenses. Thus, the error here, if any, is not an error under the actual evidence test of Indiana's Double Jeopardy Clause.

[¶2] Ellis also appeals his sentence. In particular, he asserts that his aggregate term of two and one-half years, with six months suspended to probation, for the theft of about $30 worth of goods for each offense is inappropriate. For support of this argument, Ellis cites the current version of Indiana's criminal code, which was not in effect at the time he committed his offenses. We reject Ellis' attempt to use Indiana Appellate Rule 7(B) to give retroactive effect to the new criminal code.

Page 795

[¶3] Finally, Ellis asserts that the trial court erred when it denied his motion for additional credit time. But Ellis has not supported this argument with citations to any part of the appendix or record on appeal that demonstrates his claims regarding time served and credit time. Thus, we are obliged to reject this argument.

[¶4] We affirm Ellis' convictions and sentence.

Facts and Procedural History

[¶5] On May 13, 2013, Nathaniel Burkey was working at Schlemmer's Hardware Store (" the store" ) in LaGrange when he observed Ellis, who had been inside the store, exit through the store's north doors while carrying a bag of fertilizer and a can of drain opener. Burkey approached Ellis at Ellis' car, which was parked " directly north of the north doors," and he asked Ellis if he had paid for the items he was carrying. Tr. at 18. Ellis said he had, and Burkey asked to see a receipt. Ellis then produced a receipt from a CVS pharmacy. Burkey took possession of the two items and informed Ellis that he would have to come back inside and pay for the items if he wanted them. Ellis went back inside with Burkey and asked another employee to charge the items to an account under the last name of " Ellis." Id. at 20-21. But because the only account under such a name was for a person not related to Ellis, the employee refused to charge the account. Ellis then left without the items. The store's owner informed the local sheriff's department of the incident immediately after Ellis had left.

[¶6] About thirty minutes later, another store employee observed Ellis return to the store, and she alerted the other employees and the owner. The owner contacted the sheriff's department. Burkey, who was standing by the cash registers on the south side of the store, observed Ellis walk past the cash registers and out the store's west entrance with a bag of fertilizer and a can of drain opener. Ellis did not stop at the cash registers and did not pay for the two items. The total cost of the two items was between $29 and $30.

[¶7] While Ellis was on his way to his car, LaGrange County Sheriff's Deputy Derek Baldridge arrived and engaged Ellis. Deputy Baldridge asked Ellis if he had paid for the two items, and Ellis stated that he had. Deputy Baldridge then asked Ellis to go inside with him. Inside, the store's employees informed Deputy Baldridge that Ellis had not paid for the items. Deputy Baldridge then arrested Ellis.

[¶8] On May 15, 2013, the State charged Ellis with theft, as a Class D felony. More than a year later, on May 22, 2014, the State added a second charge for attempted theft, also as a Class D felony. Both charges were for the removal of a bag of fertilizer and a can of drain opener from the store on May 13, 2013. At the ensuing jury trial in June of 2014, the State's opening argument and presentation of evidence explained the sequence of events at the store on May 13, 2013, but did not specifically relate the State's evidence to one charge or the other.

[¶9] In its closing argument, the State informed the jury that two distinct crimes had occurred on May 13, 2013:

there's two crimes here. He's charged--one is theft, one is attempted theft, okay. So when we initiated this case, I think, " Man, this is pretty obvious, he walks out of the store not once, but twice with the goods." That's theft.
The other thing though I'm thinking this is a--maybe somebody says, " Well, he didn't get all the way out. He didn't even make it out of the parking lot." And you know, I don't think that Derek

Page 796

Baldridge should have to sit in his squad car . . . and watch that guy get in his car and speed away. . . . [B]ut if you do, if . . . you think he should have to wait that long, then the crime is attempted theft. I think it would [be] a lot easier if you just said it was a theft . . . .

Id. at 98-99. But then the State created confusion as to whether it was seeking one conviction or two:

we'll give [Ellis] a mulligan on the first trip; he got caught. Store got its goods back, no big deal.
But . . . it's really kind of bullish to come back 30 minutes later and try to do ...

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