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Tuesday, November 03, 2009
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
In Larry D. Smith v. State of Indiana , a 6-page, 2-1 opinion, Judge Barnes writes:
Larry Smith appeals his conviction for Class C felony sexual misconduct with a minor. We affirm.In Dustin Neff v. State of Indiana , an 18-page opinion, Judge Barnes writes:Smith raises one issue, which we restate as whether there is sufficient evidence to support his conviction for sexual misconduct with a minor. * * *
The repeated touching and the location of the touches combined with the viewing of pornographic images is sufficient evidence from which the jury could infer Smith’s intent. We affirm.
NAJAM, J., concurs.
KIRSCH, J., dissents with opinion. [which concludes] In the absence of legitimate inference, we can only speculate as to what Smith’s intention was. I do not believe that speculation can constitute proof beyond a reasonable doubt. Accordingly, I respectfully dissent.
I. General suifficiency of the evidence. * * * The State in this case clearly could have more precisely alleged that the child solicitation occurred on April 29, 2006, as well as or even instead of May 2, 2006. Nevertheless, the precise date of the alleged solicitation is not of “the essence of the offense” of child solicitation, nor was Neff misled into believing that the State would not present or rely upon evidence related to the April 29, 2006 chat. As such, there was no fatal variance between the charging information and proof at trial with respect to the precise dates upon which Neff solicited “Lizzy.”NFP civil opinions today (2):II. Venue. Neff also contends the State failed to prove that proper venue existed in Hamilton County, since all of the IM chats occurred between him at his computer in Madison County and Bedard, who was in Georgia. The State contends that Neff's traveling to Hamilton County, in accordance with his and “Lizzy's” plans, establishes venue there. A defendant has a constitutional and statutory right to be tried in the county in which an offense allegedly was committed. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). * * *
For all these reasons, we conclude the State failed to present sufficient evidence that proper venue for Neff's prosecution lay in Hamilton County. Madison County is the only county in Indiana where venue would be proper. Having reached that conclusion, we turn to the question of whether Neff can be retried in Madison County for this offense if the prosecutor in that county so chooses. Neither party addressed this question in their briefs, but we did explore the issue at oral argument and we must address it. * * *
We also conclude that permitting retrial of a defendant in the proper county after the State failed to prove venue in another county is consistent with double jeopardy jurisprudence. * * *
The question here, then, is whether our reversal of Neff's conviction due to improper venue is an acquittal based upon insufficient evidence or a reversal based on legal error for double jeopardy purposes. We conclude it is the latter. * * * The State's failure here to prove venue in Hamilton County was not a failure to prove an element of the offense and “implies nothing” with respect to Neff's guilt or innocence. See Burks, 437 U.S. at 15, 98 S. Ct. at 2149. As such, we conclude Neff may be retried in Madison County. * * *
Conclusion. There is sufficient evidence that Neff committed Class C felony child solicitation. However, there is insufficient evidence that he committed that crime in Hamilton County. We reverse his conviction because of improper venue and remand with directions that this case be transferred to Madison County for further proceedings consistent with this opinion.
Calvin Lawson v. State of Indiana (NFP)
NFP criminal opinions today (2):
Daniel Reed v. State of Indiana (NFP)
Shiloh Macon v. State of Indiana (NFP)
Posted by Marcia Oddi on November 3, 2009 11:33 AM
Posted to Ind. App.Ct. Decisions