FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

CYNTHIA L. PLOUGHE

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

J.R., )

)

Appellant-Respondent, )

)

vs. ) No. 49A05-1204-JV-175

)

STATE OF INDIANA, )

)

Appellee-Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Gary Chavers, Judge Pro Tempore

Cause No. 49D09-1108-JD-2071

January 15, 2013

 

OPINION - FOR PUBLICATION

KIRSCH, Judge 
2

J.R. appeals from his adjudication as a delinquent child for burglary,

1 which would 

be a Class B felony if committed by an adult, theft,

2 which would be a Class D felony if 

committed by an adult, auto theft,

3 which would be a Class D felony if committed by an 

adult, and resisting law enforcement,4 which would be a Class A misdemeanor if 

committed by an adult. He raises the following restated issue: whether his adjudications 

for both theft and auto theft are barred due to the single larceny rule.

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 5, 2011, Donald Overby’s Indianapolis residence was burglarized. A 

handgun, a television, and an iPod were taken from the home. His 2007 Chevrolet 

Avalanche was also taken from the attached garage. The Avalanche had Onstar tracking 

capability, which enabled the police to locate the vehicle in the 3400 block of Cecil 

Avenue in Indianapolis, Indiana. A police officer went to the location, observed the 

vehicle, and parked nearby to wait. A short time later, he saw two individuals enter the 

vehicle, drive away, and then pull into another parking lot. The officer activated his 

emergency lights and pulled in behind the Avalanche. The driver, who was later 

identified as J.R., stepped out of the vehicle, and the officer ordered him to return to the 

vehicle. J.R. then fled on foot, despite the officer’s command to stop. J.R. was 

 

1

See Ind. Code § 35-43-2-1.

2

See Ind. Code § 35-43-4-2.

3

See Ind. Code § 35-43-4-2.5.

4

See Ind. Code § 35-44-3-3 (effective July 1, 2012, Title 35 Article 44 was repealed and replaced 

with Title 35 Article 44.1).
3

eventually caught on another street and returned to the area where the Avalanche was 

located. Overby was brought to the scene where the vehicle was located. As J.R. was 

being searched incident to arrest, police pulled an iPod from his pocket. J.R. nodded 

toward Overby and stated, “that belongs to him.” Tr. at 26. Overby confirmed that he 

owned the iPod. 

The State filed a petition alleging J.R. to be delinquent because he had committed 

acts that would be Class B felony burglary, Class D felony theft, Class D felony auto 

theft, and Class A misdemeanor resisting law enforcement if committed by an adult. A 

fact-finding hearing was held, at the conclusion of which, the juvenile court found the 

State had met its burden on each of the charges. At the disposition hearing, the juvenile 

court placed J.R. on probation with a suspended commitment to the Department of 

Correction. J.R. now appeals.

DISCUSSION AND DECISION

J.R. argues that the juvenile court’s true findings for both theft and auto theft 

cannot stand because, under the “single larceny rule,” there was only one offense. Under 

the single larceny rule, when several articles of property are taken at the same time, from 

the same place, belonging to the same person or to several persons there is but a single 

“larceny,” i.e. a single offense. Taylor v. State, 879 N.E.2d 1198, 1204 (Ind. Ct. App. 

2008) (citing Raines v. State, 514 N.E.2d 298, 300 (Ind. 1987)). “‘The rationale behind 

this rule is that the taking of several articles at the same time from the same place is 

pursuant to a single intent and design.’” Id. (quoting Raines, 514 N.E.2d at 300). 

Therefore, if only one offense had been committed, there may be only one judgment and 
4

one sentence. Benberry v. State, 742 N.E.2d 532, 536 (Ind. Ct. App. 2001). Protections 

for individuals facing multiple convictions for a single act apply equally to juvenile 

adjudications. H.M. v. State, 892 N.E.2d 679, 682 (Ind. Ct. App. 2008), trans. denied. 

In this case, the State filed a petition alleging J.R. to be delinquent because he had 

committed an act that would be Class D felony theft if committed by an adult. The State 

specifically alleged that J.R. broke into Overby’s home and stole the victim’s television 

iPod, and handgun. Appellant’s App. at 29. The State also filed a petition alleging J.R. to 

be delinquent because he committed an act that would be Class D felony auto theft if 

committed by an adult. That count specifically alleged that J.R. stole Overby’s 2007 

Chevrolet Avalanche. These offenses, although occurring at the same time and at the 

same residence, are distinct because they each involved the violation of a different 

statute. 

J.R. relies on Stout v. State, 479 N.E.2d 563 (Ind. 1985) for his contention that his 

true findings for theft and auto theft cannot stand. In that case, the defendant was 

charged with two counts of theft; in one count, he was charged with the theft of various 

items, including a television, a chain saw, and five guns, and in a second count, he was 

charged with the theft of an automobile from the attached garage. Id. at 568. Both 

counts alleged violation of Indiana Code section 35-43-4-2(a). Id. Our Supreme Court 

found that the defendant’s convictions for both counts of theft violated the single larceny 

rule because the defendant exerted unauthorized control over several items of personal 

property, including an automobile, all of which were taken at the same time from the 

same place, the victim’s home, and “[t]his constituted but one offenses in violation of a 
5

single statute.” Id. The Court stated that, in deciding an issue regarding the single 

larceny rule, the “the proper focus is on whether ‘the offenses to be prosecuted and 

punished are the same, and not whether the offenses spring from the same act or 

operative circumstances . . . . The ultimate focus is on the identity of the offenses, not on 

the identity of their source.’” Id. (quoting Elmore v. State, 269 Ind. 532, 539, 382 N.E.2d 

893, 897 (1978), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind. 

1999)). The Court determined that the only distinguishing factor between the two counts 

of theft was the property stolen and reiterated that the State cannot split up a single theft 

offense and make distinct parts of that single offense the basis for separate or multiple 

prosecutions. Id. 

We find Stout to be distinguishable from the present case. There, the only 

difference between the two theft counts was the identity of the stolen property; 

everything else was the same, including the violated statute. Both counts alleged a 

violation of Indiana Code section 35-43-4-2. Here, such similarity does not exist. In the 

present case, Count II alleged a theft and a violation of Indiana Code section 35-43-4-2. 

Appellant’s App. at 29. Count III alleged an auto theft and a violation of Indiana Code 

section 35-43-4-2.5. Id. At the time that Stout was decided, there was no distinct statute 

for the crime of auto theft. Indiana Code section 35-43-4-2.5 was enacted after the 

crimes in Stout occurred. The enactment of this separate statute indicated the General 

Assembly’s intention that auto theft be considered a completely separate offense from

theft and that violations of the two statutes be considered distinct. Therefore, in Stout, the 

defendant was convicted of two counts of theft, which were identical offenses except for 
6

the identity of the property stolen. But here, true findings were made as to theft and auto 

theft, which are different offenses and violations of different statutes. We conclude that 

the crimes of theft and auto theft are distinct offenses, and J.R.’s true findings for both 

offenses did not violate the single larceny rule.

Affirmed.

NAJAM, J., and MAY, J., concur.