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Indiana Court Of Appeals: Cases Of Note (Nov. 2-6, 2009)
Posted in Litigation

In Garcia v. State, the Indiana Court of Appeals reversed Garcia’s conviction of an enhanced sentence and habitual substance offender determination because the trial court did not obtain from Garcia a personal waiver of his right to have a jury make these determinations.  In particular the Court of Appeals found that “it is apparent that Garcia did not acquiesce in his attorney’s representation of a waiver” because “Garcia expressed a desire to have the jury hear his explanation of why those prior convictions should be disregarded.”  “Garcia did not make a ‘personal communication’ to the court that he wished to relinquish his right to have a jury determine whether the offense should be elevated to a Class D felony and whether he was a habitual substance offender.”

In Neff v. State, the Indiana Court of Appeals addressed a venue challenge raised by a defendant charged with felony child solicitation in Hamilton County when the solicitation was in the form of IM chats sent from him in Madison County to a Georgian volunteer with Perverted Justice posing as a twelve-year-old girl living near Indianapolis.  Neff did not challenge Hamilton County’s venue until closing argument.

The Court observed that Neff did not send any IMs directed to any person actually existing in Hamilton County.  Though he believed the fictitious girl lived in Hamilton County and arranged a meeting with her in Hamilton County, the Court found that Hamilton County was not the proper venue for prosecuting Neff.  Rather, “Neff completed all the conduct that was required to establish the crime of child solicitation when he sat at his computer in Madison County and typed vulgar messages that were sent to and received by someone in Georgia.”  The fact that Neff was apprehended in Hamilton County was not sufficient to support venue there.  The Court observed that the State’s view of Neff’s travels to Hamilton County to fulfill his plan to meet the fictitious girl as sufficient to establish venue was improper because it could permit “forum shopping” whereby the State could direct out-of-state volunteers helping to identify potential child solicitors to “make their child ‘victim’ a resident of whatever county they wished.’”

However, the Court found that Neff could be retried in Madison County (his county of residence) without violating double jeopardy protections.  The Court observed that “[v]enue is not an ‘element’ of a crime” and failure to prove venue “‘implies nothing’ with respect to Neff’s guilt or innocence.”  The Court of Appeals further observed that “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 because the State referenced a specific date in the charging information it would not rely upon evidence related to an earlier chat.

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