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.

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).

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.

Gellenbeck v. State, 79A02-0903-CR-253

2nd Dist., 12-30-09, Ind.App.

Attorney: Bruce W. Graham

Holding: State presented sufficient evidence for a reasonable jury to conclude that Defendant was complaining witness’s (CW’s) custodian for purposes of child seduction statute. As used in I.C. 35-42-4-7, “custodian” means any person who resides with a child and is responsible for the child’s welfare. Here, although CW’s father still retained some authority over her, record contains ample evidence to allow jury to conclude that Defendant, CW’s uncle, was a “custodian” under Indiana’s child seduction statute. Evidence showed that Defendant and his wife had responsibility for parental tasks; they provided CW with food, shelter, and transportation; helped with school and were authorized to discipline CW if she failed to follow their rules. Moreover, CW regarded Defendant as a father figure.

Court also found no abuse of discretion in considering Defendant’s relationship with CW, the disparity in their ages, and her mental condition to be aggravating circumstances. Defendant was not merely a custodian but an uncle with whom CW was close and a person she considered to be a father figure. Nature of Defendant’s offenses seemed more heinous than “typical” cases of child seduction, thus seven-and-one-half year sentence with three and one-half years suspended to probation was not inappropriately harsh. Held, judgment affirmed.

Herron v. State, 55A05-0906-CV-341

5th Dist., 12-29-09, Ind.App.

Attorney: Steven C. Litz

Holding: Defendant, who was required by Arizona to register as a sex offender for life when he committed his offense in 1983, is a “sex offender” who is required to register for life under Indiana’s Sex Offender Registration Act. I.C. 11-8-8-19(f) provides that a person required to register as a sex offender in any jurisdiction shall register in Indiana for the period required by the other jurisdiction. Defendant waived his ex post facto argument based on Wallace v. State, 905 N.E.2d 371 (Ind. 2009) because he did not present the issue to the trial court. Waiver notwithstanding, the Act is not an ex post facto law as applied to Defendant. In Jenkins v. State, 905 N.E.2d 384 (Ind. 2009), plurality of Court held that portions of Indiana’s Sex Offender Registration Act requiring lifetime registration may be applied retroactively if the offender was already required to register at time of his offense. This was the case with Defendant, who was required to register as a sex offender when he committed his offense. Wallace, unlike Defendant, was not required to register when he committed his offense and therefore could not be subjected to the entirety of the Act. Held, trial court’s order affirming Defendant’s lifetime obligation to register in Indiana as sex offender affirmed.