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Admission of return of service did not violate Confrontation Clause

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In a matter of first impression, the Indiana Court of Appeals Friday concluded that a return of service on a protective order is not testimonial, so its admission at trial did not violate a defendant’s rights under the Confrontation Clause.

Ronald Gaines appealed his conviction of Class A misdemeanor invasion of privacy, arguing two exhibits – a page showing Gaines was served with a copy of a protective order and a certified printout indicated he received personal service of the order – violated his confrontation rights and contained hearsay.

The trial court granted an ex parte protective order against Gaines and he was served by the Marion County Sheriff’s Department. He was arrested after violating the order by showing up at S.G.’s home.

Gaines claimed that the certified copy of the ex parte order shouldn’t have been admitted because it violated his rights under the Sixth Amendment. He wanted to be able to cross-examine the sheriff’s deputy regarding the service.

Other courts have rejected Gaines’ argument, the Court of Appeals noted, pointing to cases from Arizona, Massachusetts, and Oregon.

“The primary purpose of the return of service is administrative — ensuring that the defendant received notice of the protective order. Although the return of service may be used later in a criminal prosecution, the return of service was not created solely for use in a pending or future criminal prosecution. As such, we conclude that the return of service was not testimonial, and its admission did not violate Gaines’s rights under the Confrontation Clause,” Judge Michael Barnes wrote in Ronald Gaines v. State of Indiana, 49A04-1303-CR-123.

The judges also rejected Gaines’ claim that the evidence is insufficient to sustain his conviction because of a variance between the charging information and the proof at trial.

“There is no indication that Gaines was misled by the alleged variance here. In fact, the difference between an ex parte protective order and a protective order was never mentioned during the trial. There was only one protective order issued, and there was no confusion as to what protective order was at issue. … Gaines has failed to show how he is vulnerable to double jeopardy in a future criminal proceeding,” Barnes wrote.

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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