Prosecutor Claims Official Forfeited Office by Going Nomad, Prosecutes Official for Theft, for Cashing Paychecks

No dice, says the Indiana Supreme Court, in an interesting case discussing mistakes of law.

From Teising v. State, decided Thursday by the Indiana Supreme Court, in an opinion by Justice Molter:

Article 6, Section 6 of the Indiana Constitution requires that all township officers "shall reside within their respective … townships," and they forfeit their position if they don't. Defendant Jennifer Teising resided within West Lafayette's Wabash Township when she was elected township trustee in November 2018. But after the COVID–19 pandemic spread to Indiana, she sold her home, bought a travel trailer, and left for a nomadic life while continuing to work remotely. Sometimes she stayed in Florida, sometimes she stayed with friends in Anderson, Indiana, and sometimes she traveled. But she hardly ever stayed in Wabash Township. And despite growing controversy over her residency, she refused to resign.

Usually, the State resolves residency disputes like this through a civil quo warranto action to remove the official from office. But here it chose stronger medicine. It convened a grand jury, which indicted Teising for twenty–one counts of theft on the theory that by spending most of her time outside the township, she forfeited her office. And once she forfeited her office, none of the twenty–one paychecks she kept collecting belonged to her even though she continued working as the trustee remotely. After the parties agreed to a bench trial, the trial court convicted her on all counts.

A unanimous Court of Appeals panel vacated the convictions in a published opinion. The panel concluded Teising never stopped complying with the constitutional residency requirement because she never established a legal domicile somewhere else, and she therefore didn't forfeit her office. We now grant transfer, and we too conclude Teising's convictions must be vacated, but for a different reason. We don't need to reach the constitutional residency question because, either way, the State didn't introduce evidence that Teising acted with the criminal intent required for theft—evidence that she believed she wasn't supposed to continue collecting her salary for the work she kept performing remotely. And without criminal intent, the only available remedies were civil, such as a quo warranto action to remove Teising from office or a conversion claim to recover allegedly misappropriated money….

The theft statute underlying Teising's convictions provided: "A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft …." It has long been settled that "[t]he taking of property of another under a good faith claim of title or right to possession, or under circumstances consistent with honest conduct, is not larceny [(i.e., theft)], although the party charged with the crime might have been mistaken in [their] belief." That is because "[t]he intent to steal property and a [bona fide] claim of right to take it are incompatible." And that is so whether the defendant's mistaken belief about ownership is based on a factual misunderstanding or a misunderstanding of the law as it relates to property ownership…. "Ignorance or mistake as to a matter of fact or law is a defense if … the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense …." See also generally 27 Ind. Law Encyc. Theft and Related Offenses § 2 (2023) ("A person who takes the property of another under a good faith but mistaken claim of ownership of the property does not commit theft by such action, since the required intent to exert unauthorized control over another's property is absent."); 3 Subst. Crim. L. § 19.5(a) (3d ed.) (explaining that "[o]ne may take the property of another honestly but mistakenly believing … that it is his own property" and in that event "he lacks the intent to steal required for larceny, even though his mistaken but honest belief was unreasonable" (footnote omitted)); 50 Am. Jur. 2d Larceny § 31 (2024) ("Because larceny is a specific intent crime, the State must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. The intent to steal or animus furandi, as an element of theft by larceny, is the intent, without a good faith claim of right, to permanently deprive the owner of possession of personal property." (footnotes omitted)); 52B C.J.S. Larceny § 184 (2023) ("It is also for the jury to determine whether the taking has been done with a felonious intent … or under a mistaken claim of right made in good faith ….").

So, for example, a car dealer cannot be convicted of theft if they do not realize the car they are selling was stolen, or someone else has a superior title for whatever reason. To be sure, the State may rely on circumstantial evidence to prove the dealer did in fact know the car belonged to someone else. But one way or another, the State must prove the defendant knew the property wasn't theirs to secure a theft conviction.

Here, there is no evidence Teising believed she was no longer entitled to continue collecting her salary for the work she kept performing remotely. The trial court's findings of fact and conclusions of law do not conclude she believed the money she collected wasn't hers. The State did not point to any such evidence in its briefing or in response to our questions at oral argument. And our own review of the trial transcript didn't reveal any such evidence either. In fact, the only evidence in the record on this point suggests Teising believed she did have the right to continue collecting her salary. In both her November 2020 email to Wietbrock, and her December 2020 comments to the Journal & Courier, Teising claimed she never stopped fulfilling the requirements of her office.

Instead, the State rests its case entirely on the fact that Teising was aware of both the requirement to reside within the township and her own nomadic lifestyle. And, the State argues, that lifestyle produced a chain of legal consequences: by leaving the township indefinitely, she stopped residing in the township as a matter of law; then by not complying with the constitutional requirement to reside within the township, she forfeited her office; and then by forfeiting her office, her paychecks became ill–gotten gains.

But even if we assume Teising stopped residing in the township and therefore forfeited her office as a matter of law (questions we do not decide), the State didn't prove Teising knew she forfeited her office, nor, more importantly, that she knew her paychecks had become ill–gotten gains. And without knowing she wasn't supposed to be receiving the paychecks, Teising could not have had the necessary criminal intent….

Here is the court's further discussion of mistake of law:

The State … argues that vacating Teising's theft convictions because there is no evidence—direct or circumstantial—that she knew she wasn't supposed to continue receiving her salary would allow her to prevail on an improper "mistake of law" defense.

["]A longstanding legal principle presumes that citizens know the law and must obey it—on pain of losing their lives, liberty, or property for noncompliance. Because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. An ancient legal maxim, phrased in the obligatory Latin (ignorantia juris non excusat), admonishes that ignorance of the law is no excuse.["]

But the State maintains the burden to prove Teising's criminal intent, including that when she possessed the allegedly stolen property, she knew it wasn't hers. So this limitation just means Teising can't defend based on her ignorance of the criminal law—she can't defend on the basis that she didn't know it was a crime to take other people's things without their permission. But she can defend on the basis that she misunderstood the civil law to mean the allegedly stolen property was rightfully hers, because that misunderstanding negates her criminal intent. That a mistake of law can be a proper defense to the criminal intent element of theft is one reason why civil litigation usually doesn't end with anyone going to jail even when a defendant must return money or property that the judge or jury concludes belonged to the plaintiff all along…. "[A] party to a good faith contract dispute should not be convicted of theft simply because he eventually finds himself on the losing end of the dispute" since he "lack[s] the requisite intent necessary to commit theft[.]" …

Our decision in Baugh v. State, is a good illustration of how the maxim that "ignorance of the law is no excuse" does not relieve the State of its burden to prove criminal intent, even when the defendant bases their claimed lack of intent on a misunderstanding of the civil law. William Baugh transferred one acre of land to the Cumberland Presbyterian Church on the condition that the property would revert back to him if the land was no longer used for a church or burial ground. When more than a year passed without any church services on the property, the building had become dilapidated, and there were no remaining burial plots, he concluded the property had reverted back to him, and he transferred it to his son, John. To preclude any doubt, William filed a suit to quiet title, but he died before that case was resolved, and it was dismissed.

John concluded from all this that he owned not just the real estate, but also the personal property on it, so he removed the church pews, chairs, and pulpit, and he sold them. But before he did that, he checked with his lawyer, who said he couldn't "conceive of anybody making a big row about" John removing the property, and even "if it should turn out [that John] didn't have a right to sell it," he would "simply have to hand the money back."

The lawyer guessed wrong. The church trustee filed a civil replevin action, and then let that case languish after persuading the local prosecutor to charge John with burglary for entering the church with the intent to steal the personal property in it. John was convicted and sentenced to between one and ten years in the Indiana State Prison, but our Court vacated the conviction. We declined to decide who had the superior legal claim to own the property, explaining it didn't matter. "One who takes property under a fair color or claim of title and in the honest belief of ownership and of a right to its possession is not guilty of larceny, although his claim is based on a misconception of the law or his rights under it …." John's belief, even if it were based on a mistake of law, negated "any intent … in selling and removing the property in question[ ] to commit larceny." At bottom, "this controversy [was] properly one for determination by a civil action but not one for criminal prosecution."

The same is true here. Under the criminal law, it doesn't make a difference if Teising was mistaken in her belief that she had not forfeited her office. What matters is that she believed she continued to meet the constitutional requirements of her office while working remotely and that she was allowed to continue collecting her salary. Or, more precisely, the State failed to prove she didn't believe that.

So, like in Baugh, this is a controversy for the civil law, not the criminal law, no matter how outrageous the State and its constituents may find Teising's conduct. If the State's objective was to oust Teising from office because she no longer resided within the township, its relief was through a civil quo warranto action. Indeed, that is how the State routinely handles claims that an officeholder has forfeited their position by abandoning their residence. Or if the goal was to recover money the township thought Teising was not entitled to keep, then the relief was through a civil action for something like a conversion claim. But the State could not vindicate its interests through the criminal law unless Teising knew the money she was receiving wasn't hers.

That is not to say a civil action is a prerequisite to criminal theft charges based on an officeholder's improper retention of pay, nor that the State could never demonstrate criminal intent without prevailing on a civil claim first. Suppose an officeholder retained funds they knew were paid improperly after their term expired. Whatever other defenses they might have to a theft charge, it would not seem that a lack of criminal intent would be one of them even if there were no civil claim filed first.

Since the State had no evidence Teising believed the money she received wasn't rightfully hers, the only available remedies were civil….

Teising is represented by Karen Celestino–Horseman (Austin & Jones, P.C.).