Wednesday, March 26, 2014
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Brian Byrd v. State of Indiana , a 6-page opinion, Judge Bailey writes:
Brian Byrd (“Byrd”) appeals a judgment against him for the civil infraction of Speeding for driving 54 miles per hour in a 30 miles per hour zone. He alleges he was denied due process because of a variance between the allegations and the proof. Because we find there was a failure of proof, we reverse. * * *In Adam Bigger v. State of Indiana , a 6-page opinion, Sr. Judge Sharpnack writes:
Byrd produced evidence that contradicted the prima facie speed allegation. Specifically, he produced photographs of the speed limit sign in the location where he had been pulled over. The photographs depicted a speed limit of 45 miles per hour; the State did not contest the fact that this was an altered speed limit district. * * *
The State provided the requisite specificity, but alleged only that Byrd violated Indiana Code section 9-21-5-2 by driving 54 miles per hour in a 30 miles per hour zone. The evidence adduced did not establish the violation alleged. And the State’s concession to, but without proof of, an alternative fixed speed limit results in a failure of proof. Although in some circumstances, Byrd’s conduct may have amounted to a violation of a lawfully enacted ordinance, here the State did not prove or otherwise seek judicial notice of a lawfully established altered speed zone. This left the fact-finder to speculate that Byrd violated some unspecified speeding prohibition. Our Legislature has chosen to require more than a bald assertion of speeding. Rather, the prima facie or fixed speed must be alleged and proven by the State. Too, due process requires the State to prove these specific allegations by a preponderance of the evidence. We conclude in this case that the State did not meet its burden.
Adam Bigger appeals his conviction and sentence for attempted robbery, a Class C felony. * * *NFP civil opinions today (1):
Bigger presents two issues for our review, which we restate as: I. Whether the State presented sufficient evidence to disprove Bigger’s defense of abandonment. II. Whether Bigger’s sentence is inappropriate. * * *
For the reasons stated, we conclude that Bigger waived the defense of abandonment by failing to raise it in the trial court. In addition, we conclude that Bigger’s sentence is not inappropriate in light of the nature of the offense and his character.
NFP criminal opinions today (5):
Posted by Marcia Oddi on March 26, 2014 02:13 PM
Posted to Ind. App.Ct. Decisions