                                                                         Feb 19 2015, 9:26 am




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Michael G. Moore                                          Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                Brian Reitz
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Natasha R. Hill,                                          February 19, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                49A05-1407-CR-314
              v.
                                                                Appeal from the Marion Superior
      State of Indiana,                                         Court
                                                                The Honorable Annie Christ-Garcia,
      Appellee-Plaintiff.
                                                                Judge and Honorable Tiffany Vivo,
                                                                Commissioner
                                                                Cause No. 49F24-1204-FD-27888




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a bench trial, Natasha Hill was convicted of two counts of theft and

      ordered to pay restitution in the amount of $2526.83. Hill appeals, raising two

      issues for our review: (1) whether her dual theft convictions, which were based


      Court of Appeals of Indiana | Opinion 49A05-1407-CR-314 | February 19, 2015               Page 1 of 7
      upon acts committed minutes apart and in the same department store, are

      contrary to law; and (2) whether the trial court abused its discretion in ordering

      Hill to pay restitution. Concluding Hill’s dual convictions violate Indiana’s

      single larceny rule and that the trial court’s restitution order was an abuse of

      discretion, we reverse and remand for further proceedings consistent with this

      opinion.



                               Facts and Procedural History
[2]   On April 26, 2012, Macy’s loss prevention officer Jeremiah Kiel received an

      anonymous phone call informing him that Natasha Hill, a Macy’s employee,

      would be involved in a theft at the store. Consequently, Kiel began surveilling

      Hill using real-time video monitors. Late that morning, a customer, Robin

      Shannon, approached Hill’s cash register and provided Hill with receipts from

      previous purchases. Hill entered a number of items as returns, but Shannon did

      not actually return any items. Hill then placed the value of the “returned” items

      on a gift card and gave it to Shannon.1


[3]   While Hill was processing Shannon’s phony returns, Shannon left the register

      and returned with several items, including pillows, a comforter, a cookware set,

      and a set of kitchen containers. Hill scanned the kitchen container set twice

      and charged it to the gift card, but she did not scan any of Shannon’s other




      1
          The value of the gift card Hill provided to Shannon was $938.65.


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      items. Hill took the kitchen set and cookware set to a customer pick-up

      location while Shannon walked away carrying the pillows and comforter.


[4]   Macy’s loss prevention officers confronted both Shannon and Hill about the

      transactions. Hill signed a statement admitting that she aided Shannon by

      fraudulently returning items and that she did not charge Shannon for the

      cookware, comforter, or pillows. Hill also signed a promissory note agreeing to

      pay Macy’s in the amount of $2607.32, which included values attributable to

      the incident on April 26 in addition to past incidents in which Macy’s

      determined that Hill had stolen from the department store. 2


[5]   On April 30, 2012, the State charged Hill with two counts of theft, both Class D

      felonies. The counts stated in relevant part:

               [Count 1:] On or about April 26, 2012, . . . Hill, did knowingly exert
               unauthorized control over the property, to wit: the value of United
               States Currency, of another person, to wit: Macy’s, with the intent to
               deprive the person of any part of its value or use. . . .
               [Count 2:] On or about April 26, 2012, . . . Hill, did knowingly exert
               unauthorized control over the property, to wit: the value of United
               States Currency and/or pillows and/or comforter and/or cookware, of
               another person, to wit: Macy’s, with the intent to deprive the person
               of any part of its value or use.




      2
         The statement signed by Hill included references to additional dollar amounts unrelated to the April 26
      incident, although it is not entirely clear how Hill and/or Macy’s arrived at those amounts: “I have done this
      for [Shannon] on several occasions over the last two months. The total of fraudulent returns in $3784.59. I
      have also passed off merchandise over the last two months for $3000.00 to [Shannon]. . . . The total amount
      is $9243.47.” State’s Exhibit 6.

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      Appellant’s Appendix at 21-22. A bench trial was held on May 15, 2014, at

      which the trial court found Hill guilty of both counts. At sentencing, the trial

      court reduced Hill’s convictions pursuant to the alternative misdemeanor

      sentencing statute and ordered concurrent one-year sentences to be suspended

      to probation. The State indicated that Hill had paid $80.39 to Macy’s, and the

      trial court also ordered restitution in the amount of $2526.83, which was the

      remainder on Hill’s promissory note. This appeal followed.



                                  Discussion and Decision
                                      I. Single Larceny Rule
[6]   Hill contends that the trial court erred by entering convictions for both counts of

      theft. The parties focus on whether Hill’s convictions violate double jeopardy

      principles, see Richardson v. State, 717 N.E.2d 32, 50-54 (Ind. 1999), or the

      continuing crime doctrine, see Bartlett v. State, 711 N.E.2d 497, 500-01 (Ind.

      1999). However, we believe that a similar rule, the single larceny rule, better

      applies to the circumstances of this case.


[7]   The single larceny rule provides that “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.” Raines v.

      State, 514 N.E.2d 298, 300 (Ind. 1987). “If only one offense is committed, there

      may be but one judgment and one sentence.” Id.




      Court of Appeals of Indiana | Opinion 49A05-1407-CR-314 | February 19, 2015   Page 4 of 7
[8]    The single larceny rule is applicable to facts of this case. Hill’s theft of currency

       (Count 1) and assorted inventory (Count 2) all occurred at the same cash

       register in Macy’s. Neither Hill nor her accomplice, Shannon, left the store

       between thefts. And the thefts occurred at 11:26 a.m. and 11:34 a.m.—only

       minutes apart. See State’s Exhibits 1 and 2. Therefore, Hill’s conduct amounts

       to a single offense, and she may be convicted of only one count of theft.


                                             II. Restitution
[9]    Second, Hill contests the trial court’s restitution order. An order of restitution

       lies within the trial court’s discretion and will be reversed only where there has

       been an abuse of discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A

       trial court abuses its discretion when its decision is clearly against the logic and

       effect of the facts and circumstances or when the trial court has misinterpreted

       the law. Remy v. State, 17 N.E.3d 396, 399 (Ind. Ct. App. 2014), trans. denied.


[10]   Hill maintains that the restitution order is erroneous. She argues that the order

       was based on uncharged acts, that the amount was not based on an actual loss

       by Macy’s, and that the trial court erred by failing to inquire into Hill’s ability

       to pay. We agree and hold that reversal is required due to the restitution order’s

       reliance on uncharged acts and a lack of evidence of actual loss to Macy’s.


[11]   Indiana law authorizes the trial court to order restitution for damages incurred

       “as a result of the crime.” Ind. Code § 35-50-5-3(a)(1). Absent an agreement to

       pay restitution, a defendant may not be ordered to pay restitution for an act that

       did not result in a conviction. Polen v. State, 578 N.E.2d 755, 756-57 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 49A05-1407-CR-314 | February 19, 2015   Page 5 of 7
       App. 1991), trans. denied; see also Green v. State, 811 N.E.2d 874, 879-80 (Ind. Ct.

       App. 2004). At the sentencing hearing, the prosecutor was quite clear that the

       amount on which the trial court fashioned its restitution order was based on

       uncharged acts:

               The amount of that promissory note included above and beyond this
               particular theft incident, to include other allegations. Um, I had
               informed them I don’t think that we could ask for that amount or for
               this particular case given that [Hill is] only being convicted of the
               events that Your Honor heard yesterday.
       Transcript at 150. Despite the State’s admission that the $2607.32 amount

       included losses from allegations of theft unrelated to Hill’s convictions, the trial

       court awarded restitution based on that amount. This was an abuse of the trial

       court’s discretion.


[12]   Indiana law also requires that restitution for property damages incurred by the

       victim be “based on the actual cost of repair (or replacement if repair is

       inappropriate) . . . .” Indiana Code § 35-50-5-3(a)(1). A restitution order must

       reflect “actual loss” incurred by the victim, and “[t]he amount of actual loss is a

       factual matter which can be determined only upon the presentation of

       evidence.” Batarseh v. State, 622 N.E.2d 192, 196 (Ind. Ct. App. 1993), trans.

       denied. In this case, the record indicates that Hill and Shannon were detained

       by loss prevention officers before ever leaving the Macy’s store. It stands to

       reason that the gift card and any stolen inventory was confiscated at that time,

       and there is no evidence proving otherwise. Further, we are unaware of any

       evidence showing that any of the items Hill attempted to steal were damaged or

       needed to be replaced by Macy’s. Simply stated, the State did not present
       Court of Appeals of Indiana | Opinion 49A05-1407-CR-314 | February 19, 2015     Page 6 of 7
       evidence of an actual loss by Macy’s supporting the trial court’s restitution

       order.



                                                   Conclusion
[13]   We conclude that Hill’s dual theft convictions violate the single larceny rule,

       and we reverse and remand with instructions that the trial court vacate one of

       Hill’s two convictions and amend the sentencing order accordingly. We also

       conclude that the trial court’s restitution order was improperly based on

       uncharged acts and was not based on evidence of an actual loss suffered by

       Macy’s. We therefore reverse and remand with instructions that the trial court

       vacate its restitution order.3


[14]   Reversed and remanded.


       Bailey, J., and Brown, J., concur.




       3
        The State is not precluded from requesting a hearing to present evidence of an actual loss suffered by
       Macy’s as a result of the crime for which Hill was actually charged and convicted. See Iltzsch v. State, 981
       N.E.2d 55, 57 (Ind. 2013); see also J.H. v. State, 950 N.E.2d 731, 735 (Ind. Ct. App. 2011).

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