MEMORANDUM DECISION

ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
                                                                                              FILED
this Memorandum Decision shall not be                                                    Aug 21 2020, 8:42 am

regarded as precedent or cited before any                                                     CLERK
                                                                                          Indiana Supreme Court
court except for the purpose of                                                              Court of Appeals
                                                                                               and Tax Court
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Leeman                                          Curtis T. Hill, Jr.
Leeman Law Office and                                   Attorney General of Indiana
Cass County Public Defender                             Courtney L. Staton
Logansport, Indiana                                     Caryn Nieman-Szyper
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyrone Burns,                                           August 21, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2943
        v.                                              Appeal from the
                                                        Cass Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     James K. Muehlhausen, Judge
                                                        Trial Court Cause No.
                                                        09D01-1712-F6-496



Kirsch, Judge.



Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CR-2943 | August 21, 2020   Page 1 of 5
[1]   Tyrone Burns (“Burns”) appealed his conviction after a jury trial of receiving

      stolen auto parts as a Level 6 felony, raising the issue of whether the State

      presented sufficient evidence to support his conviction. In a memorandum

      decision, we affirmed his conviction. Burns v. State, No. 19A-CR-2943, 2020

      WL 3526008 (Ind. Ct. App. June 30, 2020). Burns has petitioned for rehearing

      requesting that this court reconsider its decision because we inadvertently erred

      in reciting the applicable statute when affirming his conviction. We grant

      rehearing for the limited purpose of correcting this mistake and reaffirm our

      previous decision in all other respects.


[2]   Burns was convicted of receiving stolen auto parts pursuant to Indiana Code

      section 35-43-4-2.5. Appellant’s App. Vol. II at 12. That statute set out that a

      “person who knowingly or intentionally receives, retains, or disposes of a motor

      vehicle or any part of a motor vehicle of another person that has been the

      subject of theft commits receiving stolen auto parts, a Level 6 felony.” Ind.

      Code § 35-43-4-2.5(c) (2017). On appeal, Burns argued that the State had failed

      to present “substantial evidence of probative value” that he knew he was

      driving a stolen car. Appellant’s Br. at 4. In affirming his conviction in our

      memorandum decision, we found that the evidence presented at trial was

      sufficient to prove his knowledge that the car was stolen and to support his

      conviction. Burns, 2020 WL 3526008 at *3. However, in making this

      determination, we inadvertently set out the incorrect statutory language for the

      charged crime and mistakenly stated that the crime with which Burns was

      charged required proof of a prior conviction:


      Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CR-2943 | August 21, 2020   Page 2 of 5
              In order to convict Burns of Level 6 felony receiving stolen auto
              parts as charged, the State was required to prove that Burns
              knowingly or intentionally received the vehicle with the intent to
              permanently deprive the owner of any part of its value or use,
              that the vehicle was worth at least $750 and less than $50,000,
              and that Burns had prior unrelated convictions of theft,
              conversion, or receiving stolen property. Ind. Code § 35-43-4-
              2.5(c).


      Burns, 2020 WL 3526008 at *2. Although the citation to the quoted language is

      the correct citation to the Indiana Code for Burns’s charged crime, the statutory

      language came from Indiana Code section 35-43-4-2(a)(1) rather than from

      Indiana Code section 35-43-4-2.5(c). See Ind. Code § 35-43-4-2(a)(1) (setting

      out the elements necessary to support a conviction for Level 6 felony theft).


[3]   Indiana Code section 35-43-4-2.5(c) was repealed and replaced with Indiana

      Code section 35-43-4-2(a)(1) on July 1, 2018. Pub. L. No. 176-2018 § 7 (2018)

      (repealing I.C. § 35-43-4-2.5). Because Burns committed his offense on

      December 17, 2017, he was properly charged, and convicted, of receiving stolen

      auto parts under Indiana Code section 35-43-4-2.5(c), which does not require

      the State to provide proof of a prior conviction to support a Level 6 felony.

      Therefore, it is clear from a review of the record that this court mistakenly set

      out the statutory elements for Indiana Code section 35-43-4-2(a)(1) rather than

      the statute at issue. We, therefore, correct our opinion to reflect that the correct

      statutory language for the crime of which Burns was charged and convicted

      provides that a “person who knowingly or intentionally receives, retains, or

      disposes of a motor vehicle or any part of a motor vehicle of another person


      Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CR-2943 | August 21, 2020   Page 3 of 5
      that has been the subject of theft commits receiving stolen auto parts, a Level 6

      felony.” Ind. Code § 35-43-4-2.5(c) (2017).


[4]   This mistake did not change our analysis of whether the State presented

      sufficient evidence to prove that Burns knew he was driving a stolen car and to

      sustain his conviction for receiving stolen auto parts as a Level 6 felony.

      Contrary to Burns’s assertion, this error did not change the “law of the case,”

      and he is not entitled to a reversal of his conviction on this basis. Appellant’s Pet.

      For Reh’g at 6-7. The law-of-the-case doctrine provides that an appellate court’s

      determination of a legal issue binds both the trial court and the court on appeal

      in any subsequent appeal involving the same case and substantially the same

      facts. Dutchmen Mfg., Inc. v. Reynolds, 891 N.E.2d 1074, 1082 (Ind. Ct. App.

      2008) (citing Pinnacle Media, L.L.C. v. Metro. Dev. Comm’n of Marion Cty., 868

      N.E.2d 894, 901 (Ind. Ct. App. 2007), trans. denied), trans. denied. The purpose

      of the doctrine is to minimize unnecessary relitigation of legal issues once they

      have been resolved by an appellate court. Id. Accordingly, all issues decided

      directly or by implication in a prior decision are binding in all further portions

      of the same case. Id. To invoke the law-of-the-case doctrine, the matters

      decided in the earlier appeal must clearly appear to be the only possible

      construction of an opinion. Id. at 1082-83. Therefore, questions not

      conclusively decided in the earlier appeal do not become the law of the case. Id.

      (citing Hanson v. Valma M. Hanson Revocable Trust, 855 N.E.2d 655, 662 (Ind. Ct.

      App. 2006)). Moreover, statements that are not necessary in the determination




      Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CR-2943 | August 21, 2020   Page 4 of 5
      of the issues presented are dicta, are not binding, and do not become the law of

      the case. Id.


[5]   Here, although the incorrect statutory language was set out, there was no

      “determination of a legal issue” regarding whether Burns had a prior conviction

      for theft, conversion, or receiving stolen property because he was not charged as

      such. Appellant’s App. Vol. II at 12. That issue was not presented to the jury and

      was not presented on appeal. The only issue before this court on appeal was

      whether the State had presented sufficient evidence to prove that Burns knew

      the vehicle was stolen, and we concluded that the evidence presented a trial

      established that he knew the vehicle was stolen and that the State had met its

      burden. Burns, 2020 WL 3526008 at *2-*3. The fact that we inadvertently set

      out the incorrect statutory elements did not constitute the determination of a

      legal issue and did not change the “law of the case.” We, therefore, reject

      Burns’s argument that his conviction should be reversed and reaffirm his

      conviction.


[6]   Affirmed on rehearing.


      Najam, J., and Brown, J., concur.




      Court of Appeals of Indiana |Memorandum Decision on Rehearing 19A-CR-2943 | August 21, 2020   Page 5 of 5
