                                                                  Aug 26 2015, 8:43 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Alan K. Wilson                                            Gregory F. Zoeller
Muncie, Indiana                                           Attorney General of Indiana

                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Seth Curtis,                                              August 26, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A02-1501-CR-59
        v.                                                Appeal from the Delaware Circuit
                                                          Court
State of Indiana,                                         The Honorable Linda Ralu Wolf,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          18C03-1209-FB-29



Bradford, Judge.



                                     Case Summary

Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015                  Page 1 of 20
[1]   On July 8, 2011, Appellant-Defendant Seth Curtis entered a CVS store located

      in Delaware County. While inside the store, Curtis threatened a customer at

      gun point. Also at gun point, he ordered the pharmacist to give him certain

      drugs that were located in a safe within the pharmacy and ordered the

      pharmacy technician to give him the keys to her vehicle (“car keys”). After the

      pharmacist and the pharmacy technician complied with his orders, Curtis left

      the store with the drugs and the pharmacy technician’s car keys. Once outside

      the store, Curtis took the pharmacy technician’s vehicle. He later abandoned

      the vehicle behind a vacant building.


[2]   Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged Curtis

      with two counts of Class B felony armed robbery, Class C felony intimidation,

      and Class D felony auto theft. Following a jury trial, Curtis was found guilty of

      each of the charged offenses. The trial court subsequently imposed a judgment

      of conviction against Curtis on each count. The trial court sentenced Curtis to

      twenty years for each of the Class B felony armed robbery convictions, seven

      years for the Class C felony intimidation conviction, and two and one-half years

      for the Class D felony auto theft conviction. The trial court ordered that the

      sentences for the Class B felony convictions be served concurrently to each

      other but consecutive to the sentences imposed for the Class C felony

      intimidation and the Class D felony auto theft convictions.


[3]   On appeal, Curtis contends that the State presented insufficient evidence to

      sustain his convictions. He also contends that the imposition of judgment of

      conviction against him and a sentence for both of the armed robbery counts and

      Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 2 of 20
      for both the armed robbery and auto theft counts violated the single larceny

      rule. We affirm.



                             Facts and Procedural History
[4]   At approximately 9:00 a.m. on July 8, 2011, a man, who was subsequently

      identified as Curtis, wearing a gray sweatshirt, jeans, a black turtleneck, a black

      face mask on top of his head, and a black glove on his left hand passed in front

      of the entrance to the CVS store located at 415 E. McGalliard Road in

      Delaware County. Surveillance video from the CVS store showed Curtis, who

      was carrying a plastic bottle containing blue liquid, walk in front of the entrance

      toward a trash can that is located just to the left of the entrance. Curtis

      momentarily moved out of the area covered by the surveillance video before

      immediately re-entering the area covered by the surveillance video. Curtis then

      entered the CVS. Curtis did not have the plastic bottle containing blue liquid in

      his hands when he entered the store.


[5]   Once in the store, Curtis approached the pharmacy area of the store. Upon

      arriving at the pharmacy area, Curtis removed a black handgun from his

      pocket. Curtis approached Jeffrey Lightner, a regular customer of the CVS who

      was standing at the drop-off area of the pharmacy waiting to have a prescription

      filled, and told Lightner “don’t f’ing look at me … [o]r I will shoot you.” Tr. p.

      83.




      Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015       Page 3 of 20
[6]   Nariman Al Shweiki was the pharmacist on duty when Curtis arrived at the

      pharmacy counter. Shweiki observed Curtis climb over the pharmacy counter

      before pointing his gun at her head and ordering her to give him Opana pills.

      Shweiki responded to Curtis’s demand by opening the safe and placing the

      bottles of Opana pills in a bag for him to take. Shweiki was the only person

      who could give Curtis the bottles of Opana pills because the pills are a

      controlled substance which is stored in a safe, and only the pharmacist knows

      the code to open the safe.


[7]   After ordering Shweiki to give him the Opana pills, Curtis turned, pointed his

      gun at the pharmacy technician on duty, Rebekah Williams, and demanded

      that Williams give him her car keys. Curtis repeated his demand three times

      before Williams complied. Before leaving the pharmacy but while still pointing

      his gun at Williams, Curtis asked Williams what kind of vehicle she drove.

      Williams answered that she drove a gold Chrysler Pacifica. Curtis then left the

      CVS carrying the bag containing the Opana pills and Williams’s car keys.


[8]   Upon responding to the scene shortly after the robberies, the investigating

      officers recovered a plastic Powerade bottle containing blue liquid from the

      trash can that is located just to the left of the entrance to the CVS. Although the

      robberies occurred on a warm day in July, the plastic bottle was cool to the

      touch and had condensation on it. The plastic bottle recovered from the trash

      can looked like the one carried by Curtis immediately before he entered the

      store and carried out the robberies. Nothing else found in the trash can

      resembled a plastic bottle containing blue liquid. Shweiki and Williams

      Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015    Page 4 of 20
       testified that to their knowledge, the trash can in question was usually emptied

       daily. Williams also opined that the trash can must have been emptied the

       night before as it was not full at the time that the robberies occurred.


[9]    While on his way to the CVS store, one of the investigating officers

       subsequently spotted Williams’s vehicle parked behind a vacant building. The

       vehicle was unoccupied and the keys were in the ignition. There were no other

       vehicles located behind the building.


[10]   A few days later, investigating officers received a call from Jay Mosier. Mosier

       informed the officers that on the morning in question, he had been eating in the

       back parking lot of the McDonalds restaurant located at McGalliard Road and

       Granville Avenue when he observed a white man running from behind a

       building that he believed to be vacant. Mosier observed the man approach a

       “rough looking” burgundy car, throw something inside, and climb in before

       quickly driving off. Tr. p. 253. The building described by Mosier was the same

       building behind which investigating officers located Williams’s vehicle.

       Investigating officers also subsequently learned that on the date of the robbery,

       a maroon 2004 Pontiac Grand Prix was registered to Curtis’s then-wife.


[11]   On September 14, 2012, the State charged Curtis with Count I – Class B felony

       armed robbery, Count II – Class B felony armed robbery, Count III – Class C

       felony intimidation, and Count IV – Class D felony auto theft. The trial court

       conducted a jury trial on November 19 and November 20, 2014. During trial,

       Kimberly Marshall, a forensic biologist with the Indiana State Police


       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015    Page 5 of 20
       Laboratory testified that she conducted DNA analysis on the plastic bottle

       recovered from the crime scene and on a sample provided by Curtis. Marshall

       testified that her analysis demonstrated that Curtis’s DNA profile matched the

       DNA recovered from the plastic bottle recovered from the crime scene within a

       statistical probability of one to three hundred and thirty billion

       (330,000,000,000). Marshall further testified that she was able to reach the

       conclusion that, in the absence of an identical twin, Curtis was the source of the

       DNA recovered from the plastic bottle “to a reasonable degree of scientific

       certainty.” Tr. p. 206.


[12]   Following the conclusion of trial, the jury found Curtis guilty as charged. The

       trial court subsequently entered a judgment of conviction against Curtis on all

       four counts. On January 8, 2015, the trial court sentenced Curtis as follows:

       Count I – twenty years, Count II – twenty years, Count III – seven years, and

       Count IV – two and one-half years. The trial court ordered that the sentences

       imposed on Counts I and II be served concurrently to each other, but

       consecutively to the sentences imposed on Counts III and IV. The trial court

       also ordered that the sentence imposed in the instant matter be served

       consecutively to Curtis’s sentences in three unrelated criminal matters. This

       appeal follows.



                                  Discussion and Decision
[13]   On appeal, Curtis raises two contentions: (1) that the evidence is insufficient to

       sustain his convictions and (2) that the imposition of a judgment of conviction

       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 6 of 20
       against him and a sentence for both Counts I and II and both Counts II and IV

       violate the single larceny rule. We will discuss each claim in turn.


                                I. Sufficiency of the Evidence
[14]   Curtis contends that the evidence is insufficient to sustain his convictions for

       two counts of Class B felony armed robbery, Class C felony intimidation, and

       Class D felony auto theft.


                When reviewing the sufficiency of the evidence to support a
                conviction, appellate courts must consider only the probative
                evidence and reasonable inferences supporting the verdict. It is
                the fact-finder’s role, not that of appellate courts, to assess
                witness credibility and weigh the evidence to determine whether
                it is sufficient to support a conviction. To preserve this structure,
                when appellate courts are confronted with conflicting evidence,
                they must consider it most favorably to the trial court’s ruling.
                Appellate courts affirm the conviction unless no reasonable fact-
                finder could find the elements of the crime proven beyond a
                reasonable doubt. It is therefore not necessary that the evidence
                overcome every reasonable hypothesis of innocence. The
                evidence is sufficient if an inference may reasonably be drawn
                from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).
       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015      Page 7 of 20
[15]   The version of Indiana Code section 35-42-5-1 which was in effect on July 8,

       2011, provides that “[a] person who knowingly or intentionally takes property

       from another person or from the presence of another person: (1) by using or

       threatening the use of force on any person … commits robbery, a Class C

       felony. However, the offense is a Class B felony if it is committed while armed

       with a deadly weapon or results in bodily injury to any person other than a

       defendant.” The version of Indiana Code section 35-45-2-1 that was in effect on

       July 8, 2011, provides that “(a) A person who communicates a threat to another

       person, with the intent … that the other person engage in conduct against the

       other person’s will … commits intimidation, a Class A misdemeanor. (b)

       However, the offense is a: … (2) Class C felony if, while committing it, the

       person draws or uses a deadly weapon.” The version of Indiana Code section

       35-43-4-2.5(b) that was in effect on July 8, 2011, provides that “[a] person who

       knowingly or intentionally exerts unauthorized control over the motor vehicle

       of another person, with intent to deprive the owner of: (1) the vehicle’s value or

       use … commits auto theft, a Class D felony.”


[16]   On appeal, Curtis does not challenge the sufficiency of the evidence to prove

       the individual elements of each of the above-stated offenses. He merely

       challenges the sufficiency of the evidence to prove that he was in fact the

       perpetrator who committed the acts in question. Specifically, Curtis challenges

       the sufficiency of the evidence to prove that the bottle containing blue liquid

       that contained his DNA and was found in the trash outside the CVS

       immediately after the robberies took place was the bottle containing blue liquid


       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 8 of 20
       that was in the perpetrator’s hands immediately before the perpetrator entered

       the CVS.


[17]   Again, surveillance video from the CVS store shows the perpetrator, who was

       carrying a plastic bottle containing blue liquid, walk in front of the entrance

       toward a trash can that is located just to the left of the entrance. The

       perpetrator momentarily moves out of the area covered by the surveillance

       video before immediately re-entering the area covered by the surveillance video.

       The perpetrator then enters the CVS. The perpetrator does not have the plastic

       bottle containing blue liquid in his hands when he enters the store. Once in the

       store, the perpetrator makes his way to the pharmacy area where he completes

       the robberies. After completing the robberies, the perpetrator exits the store.


[18]   Upon responding to the scene shortly after the robberies, investigating officers

       recovered a plastic Powerade bottle containing blue liquid from the trash can

       that is located just to the left of the entrance to the CVS. Although the

       robberies occurred on a warm day in July, the plastic bottle was cool to the

       touch and had condensation on it. The plastic bottle recovered from the trash

       can looked like the one carried by the perpetrator immediately before he entered

       the store and carried out the robberies. Nothing else found in the trash can

       resembled a plastic bottle containing blue liquid. Shweiki and Williams

       testified that to their knowledge, the trash can in question was usually emptied

       daily. Williams further testified that she believed that the trash can must have

       been emptied the night before as it was not full at the time of the robberies. The

       above-stated evidence supports the inference that the perpetrator threw the

       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015     Page 9 of 20
       plastic bottle into the trash can just before he entered the store and committed

       the robberies.


[19]   Further, the evidence demonstrates that Curtis’s DNA was subsequently

       recovered from the plastic bottle in question. Again, Marshall testified that

       Curtis’s DNA profile matched the DNA recovered from the plastic bottle

       within a statistical probability of one to three hundred and thirty billion

       (330,000,000,000). As such, Marshall testified that she was able to reach the

       conclusion that, in the absence of an identical twin, Curtis was the source of the

       DNA recovered from the plastic bottle “to a reasonable degree of scientific

       certainty.” Tr. p. 206. In light of the evidence supporting the inference that the

       perpetrator threw the plastic bottle into the trash can just prior to committing

       the robberies and the DNA evidence linking Curtis to the plastic bottle, we

       conclude that Curtis’s claim that the State failed to connect the bottle to the

       perpetrator or to prove that he was the perpetrator is without merit. Curtis’s

       claim to the contrary effectively amounts to an invitation for this court to

       reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.


                                      II. Single Larceny Rule
[20]   Curtis also contends that the imposition of a judgment against him and a

       sentence for both Counts I and II and both Counts II and IV violate the single

       larceny rule. The single larceny rule has historically provided 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’,


       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 10 of 20
       i.e. a single offense.” Raines v. State, 514 N.E.2d 298, 300 (Ind. 1987) (emphasis

       added). “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. “If only one offense is committed, there may be but one judgment and one

       sentence.” Id. However, it is important to note that, although the single

       larceny rule has long been entrenched in Indiana law, overtime, the Indiana

       Supreme Court has severely limited its application.


                                            A. Counts I and II
[21]   Curtis argues that the imposition of judgment against him and a sentence for

       both Count I – Class B felony armed robbery and Count II – Class B felony

       armed robbery violate the single larceny rule. In making this argument, Curtis

       claims that the taking of the Opana pills from Shweiki, in her capacity as an

       employee of CVS, and the taking of the car keys from Williams, in her personal

       capacity, were part of a “single larceny” because the taking of both occurred

       within seconds of each other at the same place, i.e., in the pharmacy area of the

       CVS store. For its part, the State argues that the taking of the Opana pills was

       wholly distinct from the taking of Williams’s car keys, and, as such, the takings

       constituted separate and distinct criminal acts which do not amount to a single

       larceny.


[22]   In arguing that the taking of the Opana pills from Shweiki and the car keys

       from Williams constituted a single larceny, Curtis relies on our prior opinion in

       Jenkins v. State, 695 N.E.2d 158 (Ind. Ct. App. 1998). However, we find Jenkins


       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 11 of 20
       to be inapposite. Jenkins involved the resolution of a double jeopardy question

       under the same evidence test rather than the single larceny rule. In Jenkins, the

       defendant took the victim’s car, and after driving around in it with the victim,

       refused to give the victim her purse before letting the victim out of the car. Id.

       at 160. Following trial, the defendant was convicted of both carjacking and

       robbery. Id. The robbery charge was based both upon the defendant’s taking of

       the victim’s car and purse. Id. at 161. On appeal, we concluded that because

       both crimes, as charged, involved the defendant taking a motor vehicle from

       another person by using or threatening the use of force or by placing the other

       person in fear, the defendant’s convictions for both carjacking and robbery

       violated the prohibitions against double jeopardy.1 Id. at 161-62. Unlike in

       Jenkins, here, the charging information for the two counts of armed robbery

       contained separate and distinct facts and allegations and did not contain the

       factual overlap that was present in Jenkins.


[23]   In Ferguson v. State, 273 Ind. 468, 470, 405 N.E.2d 902, 904 (1980), the

       defendant entered a rental facility and proceeded to rob two different employees

       of their wallets. Following trial, the defendant was convicted of two separate

       counts of armed robbery. Id. at 469, 405 N.E.2d at 903. Upon review, the

       Indiana Supreme Court noted that while the single larceny rule would apply to




       1
         To the extent that Jenkins discussed the single larceny rule, we noted that the fact that the State
       charged the defendant with the robbery of both the car and the purse under a single count
       indicated that the State believed the taking of both the car and the purse to be a single larceny.

       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015                 Page 12 of 20
       a situation where the property of a single business is taken from numerous

       employees, e.g., a bank robbery where the perpetrator takes cash from multiple

       bank tellers, the single larceny rule “does not apply to the situation here where a

       robber has taken the individual property of separate individuals.” Id. at 475,

       405 N.E.2d at 906.


[24]   In McKinney v. State, 272 Ind. 689, 400 N.E.2d 1378 (1980), the Indiana

       Supreme Court considered whether the robbery of the victim’s personal

       belongings and the robbery of money belonging to the pharmacy, which was a

       sole proprietorship owned by the victim, constituted only one armed robbery

       under the single larceny rule. In finding that the two robberies did not

       constitute only one armed robbery under the single larceny rule, the Indiana

       Supreme Court stated as follows:

               The [pharmacy] is a business establishment. The robbery of that
               business in the case at bar constituted one count of armed
               robbery. This is not a case in which a defendant robbed an
               individual of various belongings in a personal setting. Rather,
               petitioner robbed a business, an impersonal setting to anyone
               other than a regular customer. When petitioner relieved the store
               owner of his personal wristwatch and wallet, his actions took on
               a different character. He wronged an individual by robbing both
               that individual and that individual’s business.


       Id. at 691, 400 N.E.2d at 1379. The Indiana Supreme Court held that it did

       “not find that ‘stripped down to the basic reality’ the robbery of the pharmacy

       and the robbery [of the victim] constituted a unitary transaction.” Id. at 691,

       400 N.E.2d at 1379. As such, the Indiana Supreme court held that the takings

       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015    Page 13 of 20
       did not constitute only one armed robbery under the single larceny rule. Id. at

       691, 400 N.E.2d at 1379.


[25]   In the instant matter, the record demonstrates that after approaching the

       pharmacy and climbing over the pharmacy counter, Curtis pointed his gun at

       Shweiki’s head an ordered her to give him Opana pills. Shweiki responded to

       Curtis’s demand by opening the safe and placing the bottles of Opana in a bag

       for Curtis to take. Shweiki was the only person who could give the bottles of

       Opana pills to Curtis because the pills are a controlled substance which is stored

       in a safe to which only the pharmacist knows the code. The robbery of property

       belonging to CVS was completed once Shweiki handed Curtis the bag

       containing the Opana pills.


[26]   After ordering Shweiki to give him the Opana pills, Curtis turned, pointed his

       gun at Williams, and demanded that Williams give him her car keys. Curtis

       repeated his demand three times before Williams complied. Before leaving the

       pharmacy, but while still pointing his gun at Williams, Curtis asked Williams

       what kind of vehicle she drove and Williams answered that she drove a gold

       Chrysler Pacifica. Curtis then left the CVS carrying the bag containing the

       Opana pills and Williams’s car keys.


[27]   Upon review we conclude that the facts of the instant matter are similar to the

       situations presented in Ferguson and McKinney in that Curtis robbed two

       separate and distinct persons. He first robbed Shweiki, in her capacity as an

       employee of CVS, of property belonging to the pharmacy, i.e., the Opana pills.


       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 14 of 20
       He then robbed Williams of her personal property, i.e., her car keys. Thus, in

       light of the Indiana Supreme Court’s holdings in Ferguson and McKinney, we

       conclude that Curtis’s actions did not constitute one single unitary robbery, but

       rather constituted two separate robberies. See Ferguson, 273 Ind. at 475, 405

       N.E.2d at 906-07; McKinney, 272 Ind. at 691, 400 N.E.2d at 1379; see also

       McDonald v. State, 542 N.E.2d 552, 555 (Ind. 1989) (providing that two separate

       robberies occurred and appellant was properly convicted of two counts of

       robbery when he took property from two separate individuals after threatening

       each individual with the use of force and causing one to be stabbed).

       Accordingly, we further conclude that the imposition of a judgment against him

       and a sentence for these two separate robberies did not violate the single larceny

       rule.


                                          B. Counts II and IV
[28]   Curtis also argues that the imposition of judgment against him and a sentence

       for both Count II – Class B felony armed robbery and Count IV – Class D

       felony auto theft violates the single larceny rule. In making this argument,

       Curtis claims that the taking of Williams’s car keys and, once outside the CVS,

       her vehicle were part of a “single larceny” because although the vehicle was

       taken from the CVS parking lot outside the store, it appears to have been taken

       “only seconds” after he took the car keys from Williams. Appellant’s Br. p. 15.

       For its part, the State argues that the taking of Williams’s car keys during the

       armed robbery of the CVS pharmacy was distinct from Curtis’s criminal act of



       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 15 of 20
       taking of Williams’s vehicle from the CVS parking lot. As such, the State

       argues that the takings did not amount to a single larceny.


[29]   In arguing that the taking of Williams’s car keys and the taking of her vehicle

       constituted a single larceny, Curtis relies on the Indiana Supreme Court’s

       opinion in Stout v. State, 479 N.E.2d 563 (Ind. 1985). In Stout, the defendant

       was charged with taking certain items out of the victim’s home as well as taking

       the victim’s vehicle out of the attached garage. Id. at 568. Finding that an

       attached garage was part of one’s home, see Gaunt v. State, 457 N.E.2d 211, 214

       (Ind. 1983), the Indiana Supreme Court held that the taking of the items from

       the home as well as the taking of the vehicle from the attached garage, all of

       which happened at the same time, constituted a single taking. Stout, 479

       N.E.2d at 568.


[30]   The Indiana Supreme Court, however, has differentiated between its holding in

       Stout and situations where a perpetrator takes property, including car keys, from

       inside a building and a vehicle from a parking lot outside the building. In Bivins

       v. State, 642 N.E.2d 928, 945 (Ind. 1994), the Indiana Supreme Court noted that

       the defendant was charged with the theft of the victim’s money and credit card

       from inside his motel room and the victim’s automobile from the motel parking

       lot. The Indiana Supreme Court declined “to deem the [motel] parking lot to

       be a part of the [victim’s] motel room” despite the defendant’s claim that when

       he took the victim’s personal property from within the motel room, he also took

       the victim’s car keys. Id.



       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 16 of 20
[31]   Also, in J.R. v. State, 982 N.E.2d 1037 (Ind. Ct. App. 2013), trans. denied, we

       found Stout to be distinguishable from a situation where a juvenile was

       convicted of and sentenced for acts which would constitute Class B felony

       burglary and Class D felony auto theft if committed by an adult. In J.R., the

       juvenile burglarized a victim’s home and took the victim’s vehicle from the

       victim’s attached garage. Id. at 1038. Citing to Stout, the juvenile argued on

       appeal that the imposition of sentences for both offenses violated the single

       larceny rule. Id. at 1038-39.


[32]   In distinguishing the matter from Stout, we noted that in Stout, the defendant

       was charged with two counts of theft. Id. at 1039. “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.” Id. Upon review, we

       concluded that such similarity did not exist in the matter before the court

       because in J.R., the juvenile was charged with theft, a violation of Indiana Code

       section 35-43-4-2 and auto theft, a violation of Indiana Code section 35-43-4-

       2.5. Id. at 1039-40. In concluding that the crimes of theft and auto theft are

       distinct offenses and that the violation of both does not violate the single

       larceny rule, we stated as follows:


               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

       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 17 of 20
                 theft, which were identical offenses except for 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.


       Id. at 1040 (emphases in original).


[33]   Upon review, we conclude that the instant matter is more akin to the situations

       presented in Bivins and J.R. than the situation presented in Stout. Here, Curtis

       committed armed robbery by taking Williams’s car keys from her from inside

       the CVS while threatening the use of force and armed with a deadly weapon.

       After completing the armed robbery, he left the CVS. Curtis then found

       Williams’s vehicle in the public CVS parking lot and stole it. Similar to the

       Indiana Supreme Court’s determination in Bivins, we decline to deem the CVS

       parking lot to be part of the actual CVS pharmacy. In addition, similar to the

       situation presented in J.R., Curtis was charged with two separate and distinct

       crimes, i.e., the offenses of armed robbery under Indiana Code section 35-42-5-1

       and auto theft under Indiana Code section 35-43-4-2.5. In light of the Indiana

       Supreme Court’s opinion in Bivins and our opinion in J.R., we conclude that the

       taking of Williams’s vehicle from the CVS parking lot was a separate and

       distinct act from the taking of her car keys during the robbery of the pharmacy

       itself.


[34]   Furthermore, we must disagree with Curtis’s claim that a judgment of

       conviction should not have been imposed against him and that he should not

       have been sentenced for both armed robbery and auto theft because theft is an


       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015     Page 18 of 20
       included offense of robbery. In Potter v. State, 451 N.E.2d 1080 (1983), the

       defendant was convicted of both robbery and theft. The robbery count related

       to the taking of the victim’s personal items, including jewelry, money, car keys,

       and other items, from within the victim’s apartment. Id. at 1082. The theft

       count related to the taking of the victim’s automobile. Id. In finding that the

       trial court properly imposed judgment against and sentenced the defendant on

       both counts, the Indiana Supreme Court stated that:


               Even though one part of the general transaction involved the
               taking of property from the victim, it can certainly be said that
               the taking of the automobile was an additional theft, unrelated to
               those in the apartment. To that extent, the theft of the
               automobile does not merge into the robbery conviction.


       Id. In addition, we also clarified in J.R. that the offense of auto theft and the

       offense of robbery are two distinct offenses. See 982 N.E.2d at 1040. Thus,

       even though Curtis correctly states that, in some situations, theft is an included

       offense of robbery, we do not believe that auto theft is an included offense of

       robbery. Curtis’s claim that his convictions for both armed robbery and auto

       theft cannot stand is without merit.


[35]   Concluding that the evidence is sufficient to sustain Curtis’s convictions and

       that the imposition of a judgment of conviction and sentence for each of Counts

       I, II, and IV did not violate the single larceny rule, we affirm the judgment of

       the trial court.


[36]   The judgment of the trial court is affirmed.


       Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 19 of 20
May, J., and Crone, J., concur.




Court of Appeals of Indiana | Opinion 18A02-1501-CR-59 |August 26, 2015   Page 20 of 20
