Lash v. State

• Decision Date: 05 January 1981
• Docket Number: No. 2-579A143,2-579A143
• Citation: 414 N.E.2d 338
• Parties: Anthony LASH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 338

414 N.E.2d 338

Anthony LASH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-579A143.

Court of Appeals of Indiana, Second District.

Jan. 5, 1981.

Rehearing Denied April 9, 1981.

Harriette Bailey Conn, Public Defender, Carrl L. Darden, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

The petitioner, Anthony Lash (Lash), appeals from the denial of his petition for relief under Ind. Rules of Procedure, Post-conviction Rule 1. He was convicted by a jury of three offenses of armed robbery and sentenced to three consecutive ten year terms. His conviction was affirmed in Lash v. State, (1977) Ind.App., 367 N.E.2d 10. He now raises the following issues in the denial of his post-conviction relief petition:

(1) Whether the trial court violated his constitutional guarantee against multiple sentences for the same offense by convicting him of three offenses of armed robbery for his acts within one set of operative circumstances: necessarily raising the question whether robbery from one person of both personal property and property held for a business entity constitutes two offenses of armed robbery. ¹

(2) Whether the trial court erred in sentencing him to serve consecutively jury imposed penalties of ten years determinant on each of three counts of armed robbery.

Affirmed in part, reversed in part.

The facts as presented to us in this appeal are sketchy. ² September 21, 1975 Lash and two others entered Maria's Pizza, Inc. and at gunpoint took the cash register receipts and money from the purses of two employees, Ruby Lewis and Adean McCollon. Lash was charged with three counts of armed robbery: Count I-robbery of the business property of Maria Pizza, Inc. from Ruby Lewis; Count II-robbery of the personal

property of Ruby Lewis from Ruby Lewis; and Count III-robbery of the personal property of Adean McCollon from Adean McCollon.

ISSUE I

Lash contends his act of taking the property of three separate entities-a business and two persons-constitutes only one crime where "the armed robbery took place within one store and the whole episode lasted a few minutes." He relies on the theory that multiple takings occurring within "one set of operative circumstances" constitute only one criminal offense.

The Double Jeopardy Clause of the Fifth Amendment protects a defendant from being sentenced twice for the same offense. Elmore v. State, (1978) Ind., 382 N.E.2d 893. We must determine whether the three offenses charged are the same for purposes of double jeopardy.

Recent cases have not looked to the "single transaction" or "one occurrence" theory in resolving similar double jeopardy challenges to multiple robbery offenses. Young v. State, Ind., 409 N.E.2d 579 (1980). As stated in Elmore, a double jeopardy analysis focuses on "whether or not the offenses to be prosecuted and punished are the same, and not whether the offenses spring from the same act or operative circumstances." 382 N.E.2d at 897.

Since there is no merit in Lash's "operative circumstances" argument, there is no question as to the propriety of the judgment on Count III-robbery of the personal property of Adean McCollon from Adean McCollon. Young, Ferguson v. State, (1980) Ind., 405 N.E.2d 902. However, there still remains a question whether Count I and Count II are separate offenses. Indiana has not reached the question whether robbery from one person of both personal property and the property of a business entity constitute two offenses of armed robbery. The Indiana Supreme Court, in ruling on similar double jeopardy challenges to multiple robbery offenses, has focused, not necessarily in the same opinion, on two factors: (1) ownership of the property taken and (2) from whom the property was taken. In Williams v. State, (1979) Ind., 395 N.E.2d 239, and Rogers v. State, (1979) Ind., 396 N.E.2d 348, the Supreme Court focused on the entity whose property was taken: property belonging to one business entity, though taken from two or more individuals, constitutes one robbery. In Ferguson the court held the robbery of the personal property of two employees at the same time at a business situs constituted two offenses of robbery. The court found the single larceny doctrine of Williams inapplicable to the taking of the individual property of separate individuals. The Young case involved both robbery of business property from an employee and the robbery of personal property from a security guard. The court held the robbery of the property of two separate entities (the business and the security guard) constituted two offenses of robbery. Thus each separate offense of robbery in the aforementioned cases contained a separate person from whom the taking of property of separate entities occurred; however, the taking from more than one person property of a single business entity did not constitute separable offenses of robbery.

The recent case of McKinley v. State, (1980) Ind., 400 N.E.2d 1378, might suggest two offenses of robbery occur when one person is relieved of both his personal property and property he holds for a business entity. However, the facts of the case do not support this broad interpretation and we hold that one offense of robbery occurs when personal property and the property of a business entity are taken from one person simultaneously.

In McKinley the defendant entered a pharmacy and ordered an employee to empty the cash register. He then took personal property from the owner of the pharmacy and ordered him "to turn over store money." Defendant was charged with and convicted of two counts of armed robbery and the Indiana Supreme Court upheld the dual convictions against a double jeopardy challenge. While the published opinion does Our position is further supported by the earlier cited Young case. In interpreting the McKinley case, as distinguished from the Rogers and Williams cases, the Young court stated:

not include the charging information, our independent examination of the record revealed that the separate counts charged the defendant with (1) robbery from the employee of the pharmacy property and (2) robbery from the owner of the owner's personal property. Thus the court's finding of two offenses of armed robbery is limited to the existence of two persons from whom the property of different entities was taken.

"McKinley v. State, supra, was distinguished ... upon the basis that property, although taken in one occurrence, was the property of two separate entities and was taken from two separate persons." (our emphasis)

The recent case of Hatcher v. State, Ind., 410 N.E.2d 1187 (1980) is consistent with this limitation. Therein the court found three separate offenses of armed robbery occurred when in one criminal episode at a business situs the defendant took (1) the business owner's personal property, (2) an employee's personal property, and his accomplice took (3) the business property from a second employee. The court's statement that "three robberies thus occurred with three victims" ³-the business and two employees-is consistent with our position because it is clear the property of three entities was taken from three separate persons. We reiterate that in the cases of Williams, Rogers, Ferguson, and Young each separate offense of robbery contained a separate person from whom the taking occurred.

To claim two robbery offenses the State would have to present two sets of the elements necessary to a robbery offense. The offense of robbery, as defined by the statute relevant to this time frame, IC 35-13-4-6 (Burns Code Ed. 1975), provides in pertinent part:

"Whoever takes from the person of another any article of value by violence or by putting in fear is guilty of robbery ..."

Necessary elements include a (1) taking (2) by violence or putting in fear. Seemingly the commission of two offenses of robbery against the same person would require placing that person twice in fear. ⁴ While some of the language of the McKinley case ⁵ is susceptible to the interpretation that the owner of the pharmacy was twice placed in Under the restrictions of the Double Jeopardy clause a person cannot be twice convicted of the same offense arising from the same proscribed conduct. Therefore, in order to sustain the convictions for more than one offense of robbery arising from contemporaneous conduct it is imperative that close examination be given to not only the criminal charge but also the evidence supporting the several charges of distinct robberies.

fear, once for the taking of his business property and once for his personal property, careful reading reveals McKinley did not reach the "twice-in-fear" issue. The questionable language was directed to defendant's limited argument that only one robbery occurred since both the business and personal property belonged to the same person. This issue is distinct from ours: whether one person can be robbed twice by taking from that person the property of two separate entities.

A robbery, simplistically stated, requires a placing in fear or violence and a taking of property from the person (theft from the person). We first examine the theft element. Two cases have focused on the ownership of property taken as relevant to the double jeopardy challenge to multiple robbery convictions. Williams, Rogers. However, consideration of ownership is inimical to the single larceny doctrine, which utilizes the "contemporaneous conduct" or "unitary transaction" test for determining what conduct constitutes a theft. The doctrine is set out in Holt v. State, (1978) Ind.App., 383 N.E.2d 467, 472:

"(W)hen 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. See, e. g. Furnace v. State, (1899) 153 Ind. 93, 54 N.E. 441; Bell v. State...