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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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