September 2009 Posts

McClendon v. State, 49A02-0811-CR-999

2nd Dist., 08-10-09, Ind.App. 910 N.E.2d 826

Attorney: David Pardo

Holding: In murder prosecution, trial court did not abuse it discretion in admitting evidence of a prior confrontation between Defendant and victim’s father that occurred eleven months before shooting. During voir dire, opening statements and in his case-in-chief, Defendant raised the issue of self-defense. Though somewhat distant in time, evidence was admissible to show that Defendant harbored hostility toward victim’s father and was relevant to shooting at father’s house. Goldsberry v. State, 821 N.E.2d 447 (Ind.Ct.App. 2005). Trial court also explicitly considered prejudicial effect of reference to marijuana or “weed” and determined that it provided context for the conflict. Held, judgment affirmed.

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »

Brown v. State, 12A02-0901-CR-1

2nd Dist., 04-21-09, Ind.App.

Attorney: John Fierek

Holding: Trial court abused its discretion in admitting results of Defendant’s blood alcohol test because State failed to lay the proper foundation. Blood samples collected at the request of a law enforcement officer as part of a criminal investigation must be obtained by “[a] physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician.” I.C. 9-30-6-6(a). Also, the bodily substance must be obtained by a medical professional specified in I.C. 9-30-6-6(j). Here, Defendant consented to a blood draw after he was involved in an accident and exhibited signs of intoxication. A certified lab technician drew Defendant’s blood according to the method she was taught in school rather than the hospital’s protocol, which was established by a physician. Because the lab technician was not acting under the protocol prepared by a physician, the blood test results were inadmissible. Also, because a certified lab technician is not listed in the statute as a person who may draw blood at the request of a law enforcement officer, the blood tests were inadmissible. Although the certified lab technician was certified to practice phlebotomy, she was not a certified phlebotomist, which is listed in the statute. However, because the evidence of intoxication was overwhelming, the erroneous admission of the blood test results was harmless. Held, judgment affirmed.

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »

Street v. State, 49A02-0901-CR-91

2nd Dist., 08-18-09, Ind.App. 911 N.E.2d 654

Attorney: Ann M. Sutton

Holding: There is no mens rea requirement for the offense of public intoxication. See McCaffrey v. State, 523 N.E.2d 435 (Ind.Ct.App. 1988). Accordingly, the State is not required to show that Defendant had a knowing mens rea to commit public intoxication because mens rea is not an element of the offense as defined in I.C. 7.1-5-1-3. Thus, the State is only required to prove that Defendant was 1) in a public place and 2) intoxicated. Because Defendant does not dispute that he was in a public place and intoxicated, Court affirmed his conviction. Held, judgment affirmed.

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »

Price v. State, 49A04-0812-CR-698

4th Dist., 08-21-09, Ind.App.

Attorney: Ruth Johnson

Holding: I.C. 35-46-3-12(b)provides that “[a] person who knowingly or intentionally beats a vertebrate animal commits cruelty to an animal, a Class A misdemeanor.” In addition, subsection (e) states that “[i]t is a defense to a prosecution under this section that the accused person:…engaged in a reasonable and recognized act of training, handling, or disciplining the vertebrate animal.” Defendant argued that the statute’s exemption of “reasonable” training and discipline renders the statute unconstitutionally vague because the term can have various meanings depending on who interprets it. Here, Defendant admitted to grabbing his dog by the back of the neck to immobilize him. Defendant then repeatedly struck the dog with a belt several times with enough force to make the dog scream loudly every time he was struck. Court could not say a person of ordinary intelligence would not be aware that these actions violate I.C. 35-46-3-12(b). Furthermore, a person of ordinary intelligence would know that these actions are not “reasonable” acts of discipline or training, which are exempt from purview of statute. Thus, statute is not unconstitutionally vague as applied to Defendant. Held, judgment affirmed.

See also: Tooley v. State, No. 49A04-0902-CR-62 (rejecting argument that terms “unnecessarily” and “cruelly” in statute defining “beat” are highly subjective terms that invite “arbitrary arrests and prosecutions” and fail to provide notice as to what conduct is prohibited).

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »

Collins v. State, 35A02-0902-CR-162

2nd Dist., 08-21-09, Ind.App.

Attorney: Matthew Grantham

Holding: Trial court did not err by adding conditions to Defendant’s probation previously ordered in 2000. The court may hold a new probation hearing at any time during a probationer’s probationary period and modify the probationer’s conditions of probation. I.C. 35-38-2-1.8(b)(1), (c). The court may hold the new probation hearing even if: (1) the probationer has not violated the conditions of probation; or (2) the probation department has not filed a petition to revoke probation. I.C. 35-38-2-1.8(d).

Here, in 2000, Defendant pled guilty to Class B felony Rape and Burglary, and trial court sentenced him to thirty-six years with ten years suspended to probation. Soon after Defendant’s release from prison in 2009, trial court held a hearing, at State’s request, and added sex offender probation conditions, to which Defendant objected. These conditions included counseling, no contact with children, 1000-foot living restrictions, sex offender registration, etc. Although Court of Appeals in Jones v. States, 789 N.E.2d 1008 (Ind.Ct.App. 2003), held that a trial court cannot issue additional discretionary terms of probation in the absence of a probation violation, I.C. 35-38-2-1.8 supercedes Jones. Moreover, trial court’s additional conditions, without a revocation, did not violate due process because altering the terms of probation, like a probation extension, does not have the impact on liberty as does incarceration. Finally, the application of I.C. 35-38-2-1.8 to Defendant was not an ex post facto law because the statute defines when and how a trial court may alter the terms of probation after their original imposition and does not increase the punishment for a crime. Thus, trial court did not abuse its discretion by ordering the additional conditions. Held, judgment affirmed in part and remanded in part with instructions to clarify specified vague sex offender conditions.

NOTE: The Court declined to follow Ferrill v. State, 904 N.E.2d 323 (Ind.Ct.App. 2009) (holding that trial court is without authority to modify probation conditions without a probation violation).

Monday, September 21st, 2009 | Posted in Indiana Court of Appeals | No Comments »