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COA finds no error in Class A felony attempted robbery conviction

July 18, 2013

After determining it had jurisdiction over a defendant’s appeal, the Indiana Court of Appeals affirmed his conviction of Class A felony attempted robbery instead of a lesser-included offense.

In James Denning v. State of Indiana, 49A05-1208-CR-394, the appellate court was first tasked with deciding whether it had jurisdiction to consider James Denning’s appeal because he filed his notice of appeal before the trial court decided the issue of restitution. Denning was charged with and convicted of Class A felony attempted robbery for shooting Derek Schaffer while the two went to look at a place Schaffer wanted to rent. The state sought restitution, but was awaiting medical bills from Schaffer. The trial court said it would leave restitution open, but the final written sentencing order did not mention restitution.

“We have jurisdiction, as the trial court found Denning guilty and entered a judgment of conviction. The trial court, despite its oral statement it would ‘leave restitution open,’ entered a final sentencing order that did not impose restitution. Under those circumstances, we will not deprive Denning of his day in court based solely on a statement made during a hearing,” Judge Melissa May wrote.

The judges rejected Denning’s claim that there was insufficient evidence to convict him because Shaffer’s testimony was incredibly dubious.

“We decline to hold a witness’ statements are necessarily ‘incredibly dubious’ just because the witness is ‘evasive,’ ‘not forthcoming,’ or ‘reluctant’ to reveal information, especially where, as here, the challenged information has no apparent relevance to the elements of the offense with which the defendant was charged. Nor will we hold a statement is, regardless of its content, ‘incredibly dubious’ just because it is ‘squirrely,’” May said, referring to the trial court’s characterization of Schaffer’s version of the events as “squirrely and evasive.”

The COA also upheld the Class A felony conviction instead of a lesser Class C felony offense. Denning had a bench trial and “we presume that a trial court knows the law in Indiana,” May said. The state chose to charge him with Class A felony attempted robbery, and the state provided ample evidence to support that conviction.

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