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COA affirms trial court in felony neglect case

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The Indiana Court of Appeals has affirmed a conviction of Class A felony neglect, holding the appellant was unable to prove that he should have been charged with a lesser offense.

In David L. Johnson, Jr. v. State of Indiana, No. 82A01-1103-CR-130, David Johnson claimed the trial court abused its discretion when it denied his request for jury instructions on lesser-included offenses. He also claimed that the court erred in admitting statements he made to a social worker and that he was a victim of prosecutorial vindictiveness.

A.J. was born to Johnson and Lori Record in September 2008. In January 2009, Johnson attended a voluntary counseling session with a social worker, whom he told he was concerned that he might become angry and hurt A.J. Personnel noticed a bruise on A.J.’s cheek and called child protective services to investigate, and a case manager subsequently ordered A.J. to be seen by a doctor and to have X-rays taken. An initial review of the X-rays showed no injuries.

On Feb. 9, 2009, A.J. died. A coroner found evidence of multiple injuries, and upon reexamining A.J.’s initial X-rays, a radiologist saw a fracture in A.J.’s clavicle. On April 7, the state charged Johnson with Class A felony neglect of a dependent. In 2010, Johnson agreed to plead guilty to a Class B felony neglect charge, but the trial court rejected that plea.  

The COA held that in order for Johnson to prove that he should have been charged with a lesser offense, he would need to prove a serious evidentiary dispute on the element of serious bodily injury. The appeals court affirmed the trial court’s decision to refuse Johnson’s proffered instructions on the lesser-included Class C and Class D felony offenses.

The appeals court also held that the court did not err in admitting a statement from the social worker whom Johnson met with prior to A.J.’s death, citing Indiana Evidence Rules 401 and 402.

Finally, the COA rejected Johnson’s assertion that he was a victim of prosecutorial vindictiveness, stating that precedent dictates actual vindictiveness occurs when a prosecutor’s charging decision was motivated by a desire to punish the defendant for something the law plainly allowed him to do.

 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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