ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David Becsey Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Barbara A. Nardi
Cynthia L. Ploughe
Deputy Attorneys General
Indianapolis, Indiana
In the
Indiana Supreme Court FILED
Jan 09 2008, 12:18 pm
No. 49S02-0801-CR-12 CLERK
of the supreme court,
court of appeals and
tax court
ELMER BENNETT,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Appeal from the Marion Superior Court, Criminal Division, No. 49F15-0510-FD-185054
The Honorable Scott Devries, Commissioner
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0609-CR-739
January 9, 2008
Shepard, Chief Justice.
The contention in this appeal is that to obtain a conviction for theft, the State must prove
the defendant intended to deprive the owner of its use – permanently. The Court of Appeals
correctly rejected this contention.
The State charged appellant Elmer Bennett with theft and auto theft, both class D
felonies. The trial court found Bennett guilty and sentenced him to two years in the Department
of Correction for each count, served concurrently.
Bennett appealed, challenging the sufficiency of the evidence and arguing that Indiana’s
theft statute requires proof that the offender intended to deprive the owner permanently of the
value or use of his property. The Court of Appeals affirmed, Bennett v. State, 871 N.E.2d 316
(Ind. Ct. App. 2007), and got it absolutely right.
Relying on our decision in Coff v. State, 483 N.E.2d 39 (Ind. 1985), the Court of Appeals
held that Ind. Code §§ 35-43-4-2 (theft) and -2.5 (auto theft) do not require the State to prove
that the defendant intended to deprive the owner of his property permanently. In Coff, the
defendant was convicted of theft and raised the same argument on appeal that Bennett raises
here. We rejected the notion that Indiana’s theft statute contains the common law larceny
element requiring intent to permanently deprive.
This aspect of Coff is still good law. We grant transfer and adopt the opinion of the
Court of Appeals under Ind. Appellate Rule 58(A)(1).
We affirm the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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