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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. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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