CRONE, J.
On December 31, 2008, J.C. Penney loss prevention supervisor Kimberly Blair was monitoring activity in various areas of the store by watching several surveillance video screens. On one screen, she saw a black man stuffing numerous clothing items into a large black plastic trash bag. She immediately went to the area to investigate and recognized the man as Morris. Blair had apprehended Morris about fourteen months earlier, when he had stuffed jeans into a trash bag and exited the same J.C. Penney store. [Footnote omitted.] In fact, Morris had been a frequent customer at this store since that prior incident, making him familiar to most of the employees.
As Blair watched Morris, she saw him drop the trash bag in the middle of a children’s department aisle. The two made eye contact, and Morris turned and walked toward the store exit. Blair and another security officer followed closely and asked Morris to stop. Morris continued walking and exited the store. Outside, Blair and the other officer attempted to persuade Morris to go back into the store. He turned his back on them, and one of them grabbed him. Morris struggled, but they were able to subdue him. They searched his person and found only a toothbrush and small pocket knife.
On January 6, 2009, the State charged Morris with class D felony theft. On February 12, 2009, the State filed an information alleging that Morris was a habitual offender. On March 12, 2009, a jury trial was held. Morris requested a jury instruction describing criminal conversion as a lesser included offense of theft. The trial court denied the request. The jury found Morris guilty of theft and found him to be a habitual offender. He now appeals.
. . . .
Indiana appellate courts have consistently held that criminal conversion is an inherently lesser included offense of theft because conversion may be established by proof of less than all the material elements of theft. . . . .
In the past, this Court has discussed the practical difference, if any, between conversion and theft:
We are unable to envision a situation in which an individual could knowingly exert unauthorized control over property of another without intending, at least implicitly, to deprive the other person of the property’s value or use. Thus, while from a strictly legalistic or semantic standpoint there is a difference in the mens rea required for the offenses, from a practical standpoint the offenses appear to be one and the same.
Irvin v. State, 501 N.E.1139, 1142 n.3 (Ind. Ct. App. 1986).
. . . .
In our view, Morris’s case is one which illustrates the elusive difference between the crimes of theft and conversion as laid out by our legislature. Here, Morris entered the J.C. Penney store and stuffed clothes into a black plastic garbage bag, thus exerting control over the merchandise. Department and clothing stores generally allow customers to carry merchandise which has not yet been purchased throughout the store as they shop. In fact, customers are expected to move about the store while selecting items to try on in a fitting room or while simply making a decision about whether to make a purchase. Moreover, a customer might place the unpurchased items in a cart or shopping bag provided by the store. These are all examples of exerting authorized control over store property. On the other hand, if someone moves or hides unpurchased items within the confines of a store with no intent or ability to purchase them, then the person exerts unauthorized control over that property. In this case, Morris had no cash, checks, or credit cards on his person and thus no way to purchase any of the clothing in the garbage bag. Clearly, he exerted unauthorized control over those items and does not dispute that fact.
There is, however, an evidentiary dispute as to whether Morris intended to deprive J.C. Penney of the use and value of the clothing for any period of time. The State argued that when Morris realized that he had been spotted by security, he abandoned his plan to take the items out of the store, dropped the bag, and walked out in an attempt to avoid arrest. Defense counsel argued that Morris never intended to take the merchandise; rather, he pointed to evidence that Morris was homeless and destitute and claimed that Morris wanted to be taken to jail, if only for a short time, where he might receive food and shelter on that cold winter night. He noted Morris’s seemingly reckless actions, including entering a store where he was recognized by many employees as a frequent visitor and former shoplifter, stuffing merchandise into a large black shopping bag (the same method he had used when stealing clothing from this store one year before), and standing in front of a conspicuous security camera while doing so. Also, at the time of his arrest, Morris had in his possession only a toothbrush and a small pocket knife. In light of this unique set of circumstances, a reasonable jury might find Morris guilty of conversion rather than theft, if given the option. Therefore, the trial court abused its discretion by denying Morris’s request for an instruction on conversion as a class A misdemeanor.
Even if we were to view theft and conversion as one and the same crime in every circumstance, the law supports the giving of the lesser included offense instruction. First, there is the rule of lenity, which requires that criminal statutes must be strictly construed against the State. Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005). Despite some courts’ suggestions that there is no articulable difference between the elements of conversion and theft, the fact remains that our legislature identified them as two separate crimes with two different penalty ranges. If it is true that there is no practical difference between the elements of conversion and theft, then defendants who commit very similar crimes may receive very different penalties. In our view, the lack of clarity in the statutes calls for application of the lenity rule. Where there is ambiguity, it must be resolved in favor of the accused. Meredith v. State, 906 N.E.2d 867 872 (Ind. Ct. App. 2009). Thus, the lenity rule would tip this case in Morris’s favor on the issue of instructing on the lesser included offense.
Also, we think that if the criminal conversion and theft statutes are indeed one and the same, then they violate the Proportionality Clause, which is contained in Article 1, Section 16 of the Indiana Constitution. . . . .
RILEY, J., concurs.
VAIDIK, J., concurs in result.