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COA orders new trial in utility theft case

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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.

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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