FOR PUBLICATION                                               FILED
                                                         Jan 15 2013, 9:51 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




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
        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).


                                                    2
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

                                            3
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

                                             4
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

                                              5
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.




                                              6
