Indiana Court of Appeals

Bowling v. State, 68A05-0906-CR-306

5th Dist., 12-30-09, Ind.App.

Attorney: Dale W. Arnett

Holding: Under the IAD, a defendant must be brought to trial within 180 days after he has “caused to be delivered” to the prosecutor and the appropriate court written notice of where he is incarcerated and of his request for final disposition of charges. I.C. 35-33-10-4, Art. 3(a)). These procedures are not mere technicalities. State v. Greenwood, 665 N.E.2d 579 (Ind. 1996). A prisoner’s delivery of IAD materials to prison officials does not constitute proper notice under the IAD. Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L. Ed. 2d 406 (1993). “Even if delivery of the notice is delayed due to negligence or malice on the part of prison authorities, the IAD’s clock does not start running until the notice is actually received by both the prosecutor and the court.” U.S. v. Brewington, 512 F.3d 995 (7th Cir. 2008).

Here, trial court did not err in denying Defendant’s motion to dismiss pursuant to IAD, because there was no evidence that he delivered speedy trial request to trial court and prosecutor. Because the 180-day period would not commence until trial court and prosecutor received Bowling’s IAD request, and because neither received such a request, there could not be an IAD violation because the 180-day period never commenced. Court noted there was no evidence Defendant attempted to confirm that his request had been forwarded to the clerk, trial court, and prosecutor. Held, judgment affirmed.

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Kribs v. State, 49A05-0904-CR-225

5th Dist., 12-14-09, Ind.App.

Attorney: Joel M. Schumm

Holding: State failed to prove beyond a reasonable doubt that Defendant knowingly or intentionally entered a controlled area of an airport with a weapon or explosive, in violation of I.C. 35-47-6-1.3. Following bench trial that resulted in Defendant’s conviction, trial court stated that it believed Defendant “didn’t remember” that he had the handgun in his possession when he entered the security checkpoint of the airport and that there was no “malicious intent” involved. Mere forgetfulness does not satisfy knowledge or intent requirement set out by I.C. 35-47-6-1.3. Held, conviction reversed.

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Annis v. State, 76A03-0908-CR-369

3rd Dist., 12-09-09, Ind.App.

Attorney: John Pinnow

Holding: For purposes of I.C. 9-30-10, a motor vehicle is a vehicle that is self-propelled but the definition does not include a motorized bicycle. I.C. 9-13-2-105(d). A motorized bicycle is defined as a vehicle with two or three wheels that is propelled by an internal combustion engine or a battery powered motor, and if powered by an internal combustion engine, has the following: 1) an engine rating of not more than two horsepower and a cylinder capacity not exceeding fifty cubit centimeters; 2) an automatic transmission; 3) a maximum design speed of not more than twenty-five miles per hour on a flat surface.

Here, on appeal of his conviction for operating a vehicle with a suspended license, Defendant argued that his scooter qualified as a motorized bicycle rather than a motorized vehicle. Officer observed Defendant traveling on his scooter at forty-one miles per hour uphill. Upon inspection, officer observed a displacement number of 149 CC stamped into the vehicle frame of the scooter near the model number and VIN. Based on this evidence, the scooter was a self-propelled vehicle that was capable of exceeding twenty-five miles per hour on an uphill surface, let alone a flat surface, and had a cylinder capacity greater than fifty cubic centimeters. Held, judgment affirmed.

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Outlaw v. State, 49A02-0904-CR-340

2nd Dist., 12-18-09, Ind.App.

Attorney: Barbara J. Simmons

Holding: State is required to submit proof of “endangerment” that goes beyond mere intoxication to obtain a conviction for Class A misdemeanor OWI. I.C. 9-30-5-2(b) requires State to prove beyond a reasonable doubt that Defendant “operate[d] a vehicle while intoxicated…in a manner that endangere[d] a person.” Here, State failed to present any evidence on the element of endangerment, which is necessary to elevate the conviction from a Class C to a Class A misdemeanor. The element of endangerment can be established by showing that Defendant’s condition or operating manner could have endangered any person, including the public, the police, or Defendant. Staley v. State, 895 N.E.2d 1245 (Ind.Ct.App. 2008). Evidence Defendant was intoxicated cannot prove additional element of endangerment. Held, conviction reversed.

See also: Vanderlinden v. State, No. 49A02-0905-CR-417 (Ind.Ct.App. Dec. 18, 2009) (by definition, the current version of Class A misdemeanor OWI statute requires more than intoxication to prove endangerment; here, Defendant’s excessive speed, regardless of driving conditions or her proximity of others, was sufficient to prove endangerment).

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Howell v. State, 49A04-0903-CR-172

4th Dist., 12-09-09, Ind.App.

Attorney: Robert D. King, Jr.

Holding: Evidence was sufficient to support Defendant’s conviction for obstruction of justice even though the email messages that constituted “false records” for the basis of the charge did not contain false or inaccurate information. I.C. 35-44-3-4(a)(4) defines obstruction of justice as “mak[ing], present[ing], or us[ing] a false record, document, or thing with the intent that the record, document, or thing, material to the point in question, appear in evidence in an official proceeding or investigation to mislead a public servant.”

Here, detective posed as a female minor in a Yahoo! chat room using the name “indydiamondgirl08.” Defendant, using the screen name “john_doe8238” contacted detective’s undercover account and was eventually charged with child solicitation. A few days after Defendant was released on bond, detective received more emails at indydiamondgirl08 from johndoe_8238 from an account registered to a woman in Great Falls, Montana. Defendant had given the woman’s daughter, C.C., his screen name and password, asked her to send messages to indydiamondgirl08 and to change his password. C.C. also said she logged on as john_doe8238 only when Defendant specified. Defendant explained to C. C. that if she did this, it would help his pending criminal case by showing that someone else was using his screen name.

Although the emails contained no false information in that they were mere inquiries into indydiamondgirl08’s well being or requests to engage in further conversation, Court found the emails false because C.C., not Defendant, sent the messages. This made the emails “false records.”

Court also rejected Defendant’s argument that the evidence was insufficient because: 1) the most recent emails were not introduced as evidence at Defendant’s child solicitation trial and 2) emails were sent not to mislead detective, but to create a defense to the child solicitation charge by showing someone else could have sent the messages. I.C. 35-44-3-4(a)(4) says obstruction of justice also occurs when a false record appears in an investigation. Because detective was required to investigate the emails sent after Defendant was arrested for child solicitation, the fact that the emails were not introduced as evidence at the child solicitation trial was inconsequential. Defendant’s argument regarding insufficient intent to mislead was an impermissible request to reweigh the evidence. Held, judgment affirmed.

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