Neff v. State, 29A01-0904-CR-332
2nd Dist.; 01-27-10, Ind.App.
Attorney: Steven Stoesz
Holding: Court’s original opinion vacated Defendant’s guilty verdict for child solicitation based on the State’s failure to establish venue in Hamilton County. On rehearing, Court clarified that Hamilton County Superior Court still has authority to transfer case to Madison County, even though the Hamilton County court failed to transfer the case to Madison County “before verdict or finding,” as required by I.C. 35-32-2-5(a). The reversal of Defendant’s conviction means there is now no “extant guilty ‘finding.’” Thus, the statute does not bar the Hamilton County court from transferring the case to Madison County.
Here, Defendant sent emails to a person he thought was a twelve-year-old girl living in Carmel. In fact, the person was an adult woman from Georgia who volunteered to pose as a child in an Internet chat room for the group “Perverted Justice.” Defendant eventually traveled to Carmel to meet the “girl.” However, he had already completed the conduct necessary to establish the crime of child solicitation by sending the emails to the “girl,” and he sent all emails from his computer in Madison County.
Retrial of Defendant does not violate double jeopardy prohibition. Cases that Defendant cites for proposition that failure to prove venue in criminal case is “fatal” contain no discussion of double jeopardy effect of reversal based on lack of venue. See Sowers v. State, 546 N.E.2d 1230, 1233 (Ind. Ct. App. 1989) and Strickland v. State, 217 Ind. 588, 594, 29 N.E.2d 950, 952 (1940). Sowers notes that venue is not an element of a crime. Therefore, reversal for lack of venue is based on trial error and is not an acquittal based on insufficient evidence. Reversal based on trial error implies nothing about a defendant’s innocence or guilt. In confirming original double jeopardy analysis, Court reaffirmed its disapproval of Williams v. State, 634 N.E.2d 849 (Ind. Ct. App. 1994) and Elkins v. State, 754 N.E.2d 643, 644-45 (Ind. Ct. App. 2001), trans. denied. Held, original opinion affirmed.
