ILNews

COA orders new trial in utility theft case

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has reversed a theft conviction and ordered a new trial for a man who was prohibited from discussing a lesser offense during closing argument.

In the case of Edward J. Dixey v. State of Indiana, No. 82A05-1104-CR-172, Edward Dixey was convicted of Class D felony theft after an investigation revealed that utility equipment had been tampered with, allowing Dixey to use electricity without paying for it. On appeal, Dixey argued that the trial court erred when it prohibited him from discussing in closing argument that while the state failed to prove he had committed theft, it may have proven he committed a lesser offense instead.  

In August 2010, Dixey was renting a house in Evansville with roommate Steven Keller, who had also signed the lease. Dixey agreed to pay the rent, while Keller agreed to pay the cable and the electricity, which included gas. Although Dixey had placed the utilities in his name, he did not follow up with Vectren, the electric company, or any other utility company to ensure that the bills were being paid by Keller.

In August 2010, Dixey’s ex-wife, Carolyn, along with their two daughters and Carolyn’s son from a subsequent marriage moved in with Dixey. Around the same time, Dixey’s son, James, moved into the residence as well.

On Aug.16, 2010, Dixey arrived home to find that Vectren had disconnected his electricity for failure to pay an outstanding balance. Dixey testified that up until that day, he believed Keller had been paying the electric bill.

Dixey told Keller that he needed to have the electricity turned on by Aug. 18. Keller hired a friend to fix the electrical service box located on the outside of the house that had been damaged by high winds before the electricity had been disconnected. Dixey was not at home when the man performed the work, but the electricity was on when he arrived home that day. Dixey testified that James said he had the Vectren bill placed in his own name to “stop the friction going on” between Keller and Dixey, but Dixey did not call Vectren to confirm what James had told him.

On Aug. 31, 2010, a primary meter specialist for Vectren visited Dixey’s residence to investigate a report of a possible electrical service diversion and upon inspecting the weather head, which is the location where the Vectren wires connect with the customer’s wires, noticed that someone had tampered with them, thereby diverting electricity.

At trial, after all the evidence was presented, Dixey submitted four proposed jury instructions. Three of these instructions set forth the elements of what Dixey alleged were lesser-included offenses, including Class A misdemeanor criminal conversion, Class A misdemeanor criminal deception and Class B infraction utility fraud. The fourth instruction stated that “[i]t is a general rule of statutory construction that when general and specific statutes conflict in their application to a particular subject matter, the specific statute will prevail over the general statute.” The trial court instructed the jury on criminal conversion as an inherently lesser-included offense of theft but refused Dixey’s remaining tendered instructions.

The COA held it could not say that the trial court erred by refusing to allow Dixey to argue that under Indiana law, a specific statute prevails over a more general one, although he was free to argue that the evidence presented was more consistent with one of the lesser offenses, inasmuch as that was his defense. Accordingly, the appeals court reversed and remanded for a new trial.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

ADVERTISEMENT