Aschliman v. State

• Decision Date: 14 April 1992
• Docket Number: No. 90S04-9204-CR-272,90S04-9204-CR-272
• Citation: Aschliman v. State, 589 N.E.2d 1160 (Ind. 1992)
• Parties: Rex A. ASCHLIMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1160

589 N.E.2d 1160

Rex A. ASCHLIMAN, Appellant, v.STATE of Indiana, Appellee.

No. 90S04-9204-CR-272.

Supreme Court of Indiana.

April 14, 1992.

Linda M. Wagoner, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION FOR TRANSFER

KRAHULIK, Justice.

This matter is before us on Aschliman's Petition for Transfer from the Court of Appeals' affirmance of his conviction for theft and the finding that he was an habitual offender.Aschliman v. State (1991), Ind.App., 578 N.E.2d 759.The only issue Aschliman raises in his petition is whether the trial court erred in refusing his tendered instruction on criminal conversion as a lesser-included offense of theft.Because we conclude that he was entitled to such an instruction, we grant transfer and order a new trial.

The facts relevant here are set out by the Court of Appeals:

In June, 1989, Truman and Mary Lou Barger watched Aschliman pull into the Fiechters' driveway.Mr. Barger watched through binoculars as Aschliman walked first to the door of the Fiechters' home, then to the locked garage door which he unsuccessfully attempted to open.Aschliman next entered the screened-in porch, left, and went to the tool shed where the Fiechters stored their pry bar.Aschliman then returned and re-entered the screened-in porch and used the Fiechters' pry bar in his attempt to pry open the doors from the porch to the living area of the house.Mr. Barger then wrote down a description of Aschliman's car and his license number, and telephoned the Fiechters' home, to frighten Aschliman.Aschliman left the screened-in porch, threw the pry bar under a tree, and drove away.Mr. Barger found the pry bar, saw the damage to the doors, and then called the police.

Aschliman v. State, 578 N.E.2d at 761.

As the Court of Appeals correctly pointed out, a two-step inquiry is applied to determine whether an instruction on a lesser-included offense should be given.First, we determine whether the lesser offense is inherently or factually included in the greater offense by looking at the statutes and the charging document.An offense is a lesser-included one if all the statutory elements of the lesser offense are part of the statutory definition of the greater offense.Chanley v. State (1991), Ind., 583 N.E.2d 126, 130(citations omitted).Here, criminal conversion is clearly a lesser-included offense of theft.The statute under which Aschliman was charged for theft provides:

A person who knowingly or intentionally exerts unauthorized control over property of another, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.

Ind.Code Sec. 35-43-4-2.By comparison, the statute defining criminal conversion provides:

A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.

Ind.Code Sec. 35-43-4-3.As can be easily ascertained, all of the statutory elements of conversion are part of the statutory definition of theft.See alsoChanley, 583 N.E.2d at 130;Zavesky v. State (1987), Ind., 515 N.E.2d 530, 532.

Here, citing Avance v. State (1991), Ind., 567 N.E.2d 1149, 1152, the Court of Appeals noted that "by careful drafting of the factual allegations of the information, the State may foreclose the availability of a lesser-included offense instruction."578 N.E.2d at 764.Although as we noted in Lynch v. State (1991), Ind., 571 N.E.2d 537, 539, there may be some circumstances under which an information could be drafted to preclude an instruction on a lesser-included offense, such is not the case where, as here, we are concerned with an inherently lesser-included offense.The charging information provided:

COUNT II

That on or about the 4th day of June, 1989, at and in the County of Wells and in the State of Indiana said defendant did then and there knowingly exert unauthorized control over property of another person, to-wit: a pry bar owned by Ken E. and Debra S. Fiechter, with intent to deprive the other person of any part of its value or use, all of which is contrary to the form of the statutes and in such cases made and provided, to-wit: I.C. 35-43-4-2, and against the peace and dignity of the State of Indiana.

(Emphasis added.)The Court of Appeals concluded that because the...