                                                                      FILED
                                                                 May 30 2019, 9:11 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
James D. Crum                                             Curtis T. Hill, Jr.
Coots Henke & Wheeler, PC                                 Attorney General of Indiana
Carmel, Indiana                                           Josiah Swinney
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Alec N. Clark,                                            May 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-54
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable Gail Z. Bardach,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          29D06-1710-F6-7630



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-54 | May 30, 2019                            Page 1 of 5
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Alec N. Clark (Clark), appeals his conviction for theft, a

      Level 6 felony, Ind. Code § 35-43-4-2(a).


[2]   We affirm.


                                                     ISSUE
[3]   Clark raises one issue on appeal, which we restate as: Whether the State

      established by a preponderance of the evidence that proper venue is located in

      Hamilton County.


                       FACTS AND PROCEDURAL HISTORY
[4]   On July 30, 2017, Clark and Kassie Werner (Werner), his fiancée, went to

      Runyon Equipment Rental, located in Carmel, Indiana, where Werner rented a

      commercial riding lawnmower. Werner signed the rental contract, paid for one

      day of rent, and drove off with the mower on a Runyon trailer. When Clark

      and Werner returned to their residence, they created an online advertisement to

      sell the mower. After securing a buyer, they executed the sale in Marion

      County, on a Meijer parking lot on the West side of Indianapolis.


[5]   About a month later, Runyon Equipment Rental reported the theft to the

      Carmel Police Department. After an investigation, police arrested Clark. On

      October 19, 2017, the State filed an Information, charging Clark with theft, a

      Level 6 felony. On August 30, 2018, the State amended the Information by

      filing an habitual offender enhancement. On November 27, 2018, during a

      Court of Appeals of Indiana | Opinion 19A-CR-54 | May 30, 2019           Page 2 of 5
      bifurcated trial in Hamilton County, the jury found Clark guilty as charged and

      the trial court dismissed the habitual offender Count on the State’s motion. On

      December 31, 2018, the trial court sentenced Clark to 545 days executed, with

      365 days of work release.


[6]   Clark now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION 1
[7]   Not contesting the elements of the theft charge, Clark contends that his

      conviction should be overturned because the venue was improper. The right to

      be tried in the county in which an offense was committed is a constitutional and

      a statutory right. Ind. Const. Art. I, § 13; I.C. § 35-32-2-1. Except as otherwise

      provided by law, criminal actions are to be tried in the county where the offense

      was committed. I.C. § 35-32-2-1. “If a person committing an offense upon the

      person of another is located in one (1) county and the person’s victim is located

      in another county at the time of the commission of the offense, the trial may be

      in either of the counties.” I.C. § 35-32-2-1(b). Similarly, if the commission of

      an offense is commenced in one county and is consummated in another

      country, trial may be had in either of the counties. Andrews v. State, 529 N.E.2d

      360, 363 (Ind. Ct. App. 1988), reh’g denied, trans. denied.




      1
        Although we agree with the State that Clark waived the issue on appeal for failing to make an objection to
      the venue before the trial court, we elect to address the issue on its merits. See Floyd v. State, 503 N.E.2d 390,
      393 (Ind. 1987) (“Many times this [c]ourt has held that a defendant waives error relating to venue when he
      fails to make an objection at the appropriate time in the trial court.”)

      Court of Appeals of Indiana | Opinion 19A-CR-54 | May 30, 2019                                         Page 3 of 5
[8]    Venue is not an element of the offense. Alkhalidi v. State, 753 N.E.2d 625, 628

       (Ind. 2001). However, it is the State’s burden to prove that the offenses charged

       occurred in the county identified in the charging information. Bryant v. State, 41

       N.E.3d 1031, 1037 (Ind. Ct. App. 2015). Venue may be established by a

       preponderance of the evidence and need not be proven beyond a reasonable

       doubt. Id.


[9]    Clark does not dispute that the lawnmower was rented in Hamilton County and

       later sold in Marion County, nor does he argue that venue for the crime cannot

       lie in multiples counties. Instead, Clark argues that because Werner had signed

       a rental agreement which authorized the use of the lawnmower for one day, the

       theft did not occur until one day later—when the authorized use had morphed

       into unauthorized—while the lawnmower was located in Marion County.


[10]   In Bryant, the owner of a pawnshop located in Allen County purchased goods

       stolen from victims in Wells County. Bryant, 41 N.E.3d at 1034. Applying I.C.

       § 35-32-2-1(b), this court reasoned that “there is no requirement that Bryant

       knew that the victims were in Wells County, only that they were, in fact,

       located there.” Finding no mens rea requirement in the statute, the court

       concluded that proper venue could be established in Wells County.


[11]   Likewise, here, we find it immaterial whether Clark intended to exert

       unauthorized use over the lawnmower when the rental agreement was

       executed, only that the victim—Runyon Equipment Rental—was in fact




       Court of Appeals of Indiana | Opinion 19A-CR-54 | May 30, 2019           Page 4 of 5
       located in Hamilton County. Accordingly, as venue may be had in Hamilton

       County, we conclude that the State properly prosecuted Clark.


                                              CONCLUSION
[12]   Based on the foregoing, we hold that the State established by a preponderance

       of the evidence that proper venue is located in Hamilton County.


[13]   Affirmed.


[14]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 19A-CR-54 | May 30, 2019         Page 5 of 5
