Indiana Court Decisions – March 19 to April 1, 2014

7th Circuit Court of Appeals

March 19

Criminal – Currency Transactions

United States of America v. Yulia Yurevna Abair

13-2498

In a split decision from the 7th Circuit Court of Appeals, the majority reversed a Russian woman’s conviction for violating a federal statute that prohibits structuring currency transactions in order to evade federal reporting requirements for transactions involving more than $10,000 in currency. The majority cited the prosecution’s questioning of the woman about past financial records as the reason for reversal.

Yulia Abair, who moved to the United States in 2005, married, and later got divorced, learned two weeks before the close on her new house that her bank in Russia would not deposit the money she needed from her account there to her U.S. account because her last name on the accounts did not match. She scrambled around Indiana, withdrawing the maximum daily amount of cash from her Russian account from Citibank ATMs, and deposited the money into her local bank account. The government became aware of her activity when she made two deposits around Memorial Day, which pushed her daily deposit over the $10,000 reporting threshold set by regulation.

She was indicted by a grand jury on eight charges and convicted, with the judge merging the counts into one. At trial, the District judge allowed the prosecutor to ask Abair about a 2008 joint income tax return and the Free Application for Federal Student Aid forms she filled out while attending nursing school. The government wanted to attack Abair’s truthfulness by using these forms, claiming she lied on the forms.

The judges did not hide their beliefs that the government may have better directed its prosecutorial resources elsewhere instead of bringing charges against Abair, a nurse and mother of an 11-year-old son. Due to her conviction, she forfeited the entire value of her house after selling it, which was $67,000.

“In this case we conclude that the district court abused its discretion by allowing the cross-examination on Abair’s financial filings because the government did not provide a sufficient basis to believe the filings were probative of Abair’s character for truthfulness. Rule 608(b) requires that the crossexaminer have reason to believe the witness actually engaged in conduct that is relevant to her character for truthfulness,” Judge David Hamilton wrote for the majority.

While the 7th Circuit didn’t need to hold that the scope of the questioning itself was error under Rule 403 or under Rule 611’s bar on harassing or wasteful questioning, the cross-examination in this case went on so long and in such detail as to dispel any suggestion that the error was harmless, Hamilton continued.

“We recognize that the government believes that Abair may have been involved in a range of other wrongdoing, but there is simply no evidence of other wrongdoing. For all that appears in this record, Abair is at most a one-time offender who committed an unusually minor violation of the structuring statute not tied to other wrongdoing. We therefore have serious doubts that the forfeiture of her home’s entire $67,000 value comports with the ‘principle of proportionality’ that is the ‘touchstone of the constitutional inquiry under the Excessive Fines Clause,’ but further exploration of the issue can await a new trial.”

Judge Diane Sykes dissented from her colleagues because despite the prosecutorial overreaching, she found no legal error. To cross-examine a witness under Rule 608(b)(1), the cross-examiner needs to only have a good-faith factual basis to support the proposed line of questioning, and that stand was met in this case, she wrote.

Sykes also noted in a footnote, “Despite our disagreement about the legal issue under Rule 608(b)(1), my colleagues’ decision to reverse and remand for a new trial has the salutary effect of permitting a fresh exercise of prosecutorial discretion. The executive branch may choose to moderate its strict enforcement stance against Abair and resolve not to sink further resources into prosecuting her. Under the circumstances, that might be the most prudent and just thing to do.”
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March 20

Civil – Elections/Slating

Zachary Mulholland v. Marion County Election Board

13-3027

The 7th Circuit Court of Appeals has reversed the dismissal of an unslated Marion County Democratic candidate’s lawsuit challenging the county election board’s reliance on the state’s “anti-slating” law to confiscate political flyers during the May 2012 primary election.

Zachary Mulholland ran against slated Democratic candidate Dan Forestal for the Indiana House of Representatives. He and campaign volunteers handed out flyers the day of the primary with pictures of five Democratic candidates for various national and state offices, which included Mulholland.

The flyers are illegal under I.C. 3-14-1-2(a), which makes it a crime to distribute a list endorsing multiple political candidates during a primary election unless all such candidates have given their written consent. This law benefits each political party’s slated candidates, who can easily coordinate the paperwork needed to promote a unified slate, the 7th Circuit opinion states. Slated candidates have the financial and organizational backing of party leadership.

The Marion County Election Board took Mulholland’s flyers; he subsequently lost the election.

In 2003, the federal court granted a preliminary injunction regarding enforcement of the anti-slating law in Ogden v. Marendt, 264 f. Supp. 2d 785 (S.D. Ind. 2003), ruling it suppressed political speech. In a settlement, all parties stipulated the statute is “declared facially unconstitutional” and the court enjoined the Marion County Election Board from enforcing it against the plaintiffs.  

Judge Sarah Evans Barker dismissed the instant case under the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), citing a still-ongoing election board investigation. The board issued an order to schedule a meeting on the matter, but that has been postponed indefinitely. A state court suit filed by Mulholland has also been stayed.

The 7th Circuit focused on the proceedings before the board in its decision to reverse the dismissal of the federal suit. The election board argued the case should be dismissed under Younger because the federal court should defer to the ongoing proceedings in state court and the election board.

“The planned Election Board meeting in this case is not the type of quasi-criminal proceeding that would warrant Younger abstention, at least after Sprint, which involved an agency adjudication of state law that was initiated by one private party against another and that presented no possibility of criminal penalty,” Judge David Hamilton wrote, citing Sprint Communications Inc. v. Jacobs, 134 S. Ct. 584 (2013).

The judges also noted the importance of the 2003 decision declaring the law facially unconstitutional.

“The district court correctly pointed out that the Ogden injunction was limited to enforcement of the anti-slating law against the plaintiffs in that case. That analysis overlooks, however, the significance of the declaratory portion of the Ogden judgment that declared the anti-slating statute facially unconstitutional,” Hamilton wrote.

“We reject the Election Board’s oxymoronic argument that the judgment in Ogden should be read to mean that the statute is facially unconstitutional only as to the Ogden plaintiffs. We have not encountered before the idea of facial unconstitutionality as applied only to a particular plaintiff. Facial unconstitutionality as to one means facial unconstitutionality as to all, regardless of the fact that the injunctive portion of the judgment directly adjudicated the dispute of only the parties before it.”

The case is remanded with the instruction that court promptly consider whether to issue a preliminary injunction against the board in light of the May 6 primary election.

Indiana Supreme Court

March 25

Criminal – Traffic Stop/Officer’s Testimony/Reasonable Suspicion

Joanna S. Robinson v. State of Indiana

20S04-1307-CR-471

State of Indiana v. Darrell L. Keck

67S01-1403-CR-179

A pair of opinions from the Indiana Supreme Court examines two Terry stops made by police officers and through opposite rulings emphasizes law enforcement must have reasonable suspicion to pull over a driver.

In both cases, drivers were stopped after county deputies observed them on the roadway and concluded they were impaired. Both defendants filed motions to suppress the evidence, but only one was successful.

The Supreme Court affirmed the denial of the motion to suppress. It agreed with the trial court’s decision to give deference to what Elkhart County Sheriff Deputy Casey Claeys said he saw even when that testimony conflicted with the video he made of the incident.

Claeys said he watched Robinson drive off the road twice then turned on his vehicle camera and initiated the traffic stop. The video showed Robinson weaving onto the fog line but not off the road.

Robinson was subsequently convicted of possession of marijuana and operating while intoxicated, both Class A misdemeanors, and operating with the breath-alcohol level over 0.08, a Class C misdemeanor. She appealed, arguing the trial court wrongly denied her motion to suppress.

Like the trial court, the Supreme Court gave more weight to Claeys’ testimony than to the video.

 “…when Deputy Claeys testified at the suppression hearing, the trial judge heard his testimony – along with the other witness testimony and evidence, including the video – through the lens of his experience and expertise,” Judge Mark Massa wrote for the majority. “Ultimately, that experience and expertise led the trial judge to weigh Deputy Claeys’s testimony more heavily than the video evidence, and we decline Robinson’s invitation to substitute our own judgment for that of the trial court and rebalance the scales in her favor.”

Justice Robert Rucker dissented, arguing the Indiana Court of Appeals was correct in finding the evidence from the traffic stop should not have been admitted in court.

He argued that rather than crediting Claeys’ testimony, the trial court concluded that Robinson’s weaving provided reasonable suspicion for pulling her over. However, Rucker contended that reasonable suspicion for a traffic stop required more than weaving onto the fog line.  

The Supreme Court affirmed the trial court, granting the defendant’s motion to suppress the evidence.

Putnam County Sheriff’s Deputy Terry Smith pulled Keck over after he observed Keck driving 12 miles per hour slower than the speed limit, come to a complete stop before turning left, and then driving down the middle of that county road.  

Keck was charged with operating a vehicle while intoxicated and operating a vehicle with an alcohol concentration equivalent of 0.08 or more, both Class C misdemeanors. He filed a motion for suppression, noting he did not come to a full stop before turning and he drove left of center to avoid hitting the potholes in the road.

The trial court took notice of the poor road conditions in the county and agreed that evasive action, including driving left of center, was necessary. It granted the motion to suppress.

The Indiana Supreme Court agreed that Smith lacked reasonable suspicion to stop Keck.

“We emphasize that our opinion today should not be taken to mean that driving left of center would never give rise to reasonable suspicion sufficient to support a traffic stop,” Massa wrote for the court. “All we hold today is that here, in this case, the trial court did not clearly err in concluding under these circumstances, that Keck’s driving left-of-center did not provide reasonable suspicion to stop him.”
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March 26

Juvenile – Termination of Parental Rights/Due Process

In the Matter of the Involuntary Termination of the Parent-Child Relationship of I.P., T.P. v. Indiana Department of Child Services, and Child Advocates, Inc.

49S02-1402-JT-81

In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.B., Ay.B., A.B. and K.G., K.G. v. Marion County Department of Child Services, and Child Advocates, Inc.

49S02-1402-JT-77

In two short, per curiam decisions, the Indiana Supreme Court found the parental rights of two Marion County parents should not have been terminated because of due process violations after the magistrate who heard their cases resigned before reporting recommended findings and conclusions.

Marion Superior Magistrate Judge Julianne Cartmel presided over the termination hearings involving father T.P. and mother K.G. and their respective children. After the hearing, she took the matter under advisement, but resigned her position before reporting recommended factual findings and conclusions to Marion Superior Judge Marilyn Moores. Both cases were transferred to Magistrate Judge Larry Bradley, who, without holding a new evidentiary hearing, reviewed the hearing records and reported recommended findings and conclusions.

Moores approved the findings and ordered both parents’ rights terminated. The Court of Appeals affirmed in both cases, finding no due process violations. The appeals court cited Trial Rule 63(A) as authorizing Bradley to report recommended findings and conclusions without holding a new evidentiary hearing in T.P.’s case, but that rule is inapplicable, the justices held.

“A party is entitled to a determination of the issues by the judge who heard the evidence, and, where a case is tried to a judge who resigns before determining the issues, a successor judge cannot decide the issues or enter findings without a trial de novo,” the In re I.P. opinion states. “It is precisely because the judge or magistrate presiding at a termination hearing has a superior vantage point for assessing witness credibility and weighing evidence that we give great deference to a trial court’s decision to terminate a parent’s rights.”

But in both cases, Bradley did not hear the evidence or observe the witnesses first hand and both parents did not agree to have him recommend findings and conclusions based on a review of the record.

The terminations are reversed and the cases are remanded for further proceedings.
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March 27

Criminal – Child Abuse/Reporting Requirement

Christopher Smith v. State of Indiana

18S02-1304-CR-297

A split Indiana Supreme Court upheld a misdemeanor failure to report child abuse conviction against former Muncie Central High School principal Christopher Smith. The dissent believed the state failed to show he had reason to believe an alleged rape was child abuse.

 A fellow student brought 16-year-old G.G. to the assistant principal’s office, where G.G. told Kathy McCord she had been raped by student S.M. in a bathroom at the school. McCord went to Smith and told him of the allegation. At the time, G.G. had been found a child in need of services and was a ward of the Madison County office of the Indiana Department of Child Services. She resided, by court order, at the Youth Opportunity Center in Muncie.

Smith and other school leaders decided to investigate the claim before alerting police or the Department of Child Services because G.G. had allegedly previously faked a seizure and they did not want to ruin S.M.’s reputation. The school immediately called the YOC to get consent for medical treatment; Smith believed by calling YOC, DCS would be notified. Smith called DCS approximately four hours after learning about the incident and told the agency he wasn’t sure if he was reporting abuse.

Smith was charged with failure to immediately report child abuse or neglect. A divided Court of Appeals upheld his conviction.

At the heart of Smith’s appeal is whether he knew the alleged rape constituted child abuse, which would require him to immediately contact DCS or law enforcement. Justices Steven David, Mark Massa and Loretta Rush affirmed, holding if Smith’s mistaken interpretation of the law were a defense to his criminal liability, it would remove all incentives from professionals to understand the scope of the statutory duty.

“It would tacitly encourage administrators and other professionals to simply not read the statutes in full because, to sum up Smith’s defense: if you just don’t learn what child abuse is, you’ll never get in trouble for not reporting it. It would reward systemic ignorance in entire school districts and corporations, to the obvious detriment of the very children the statutes are supposed to be protecting. And it would turn the high school principal’s decision-making process, when faced with a traumatized child, into a Bar exam question,” David wrote.

Justice Robert Rucker dissented, to which Chief Justice Brent Dickson joined, regarding this point. Rucker noted the charged offense requires reference to no fewer than five separate statutory provisions contained in two different titles and four different articles of Indiana Code. Rucker said the critical inquiry is whether Smith knew or should have known that rape of a minor student by another minor student constituted “child abuse.” The evidence is clear, Rucker wrote, that Smith did not.

The four-hour delay in reporting the incident was not considered “immediately” as the statute requires. The term “immediately” is not unconstitutionally vague as applied to his reporting duty under I.C. 31-33-5-1, David wrote. In addition, Smith’s phone call to the YOC was not a report pursuant to the statute.  

Civil Plenary – Default Judgment/Lack of Jurisdiction

Front Row Motors, LLC and Jerramy Johnson v. Scott Jones

49S02-1311-PL-758

Because a car dealership and its registered agent did not receive notice of a hearing on default judgment, the judgment entered against it was void for want of jurisdiction, the Indiana Supreme Court ruled.

Scott Jones sued Front Row Motors LLC and Jerramy Johnson, alleging Johnson rolled back the odometer and fraudulently claimed otherwise. Jones knew Johnson was in custody at the Hamilton County Community Corrections facility when he filed his lawsuit. But Jones did not make an effort to serve Johnson at the facility regarding his motion for default judgment and damages after Johnson did not appear at his deposition.

Default judgment was entered against the defendants in the amount of $34,616.73, but Jones later did not object to setting aside the judgment personally against Johnson due to potentially not providing valid service of notice to him.

Front Row Motors and Johnson appealed, arguing the trial court abused its discretion in failing to set aside the judgment as to the dealership.

After finding that the appellate courts had jurisdiction to entertain this appeal based on it being deemed final by operation of Trial Rule 60(C), the justices reversed the denial of Front Row Motor’s motion to set aside default judgment.

Indiana Code 23-1-24-4 provides: “A corporation’s registered agent is the corporation’s agent for service of process, notice, or demand required or permitted by law to be served on the corporation.”

“The record shows that at all relevant times during the pendency of this action Jerramy Johnson was the registered agent for Front Row Motors, LLC. Indeed Jones served Johnson in that capacity at the address listed with the Secretary (of) State, namely Johnson’s home address. But Jones knew that Johnson was not present at that address and instead was a resident of a Community Corrections facility. Despite this knowledge Jones made no effort to serve Johnson – the registered agent of Front Row Motors – at the facility,” Justice Robert Rucker wrote.

“On the record before us Front Row Motors has made a prima facie showing that Jones’ service of process was a mere gesture not calculated to inform it of the default damages hearing. Because Front Row Motors did not receive notice of the hearing, the default judgment entered against it was void for want of jurisdiction. The trial court thus abused its discretion in denying Front Row Motor’s motion to set aside the judgment.”
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April 1

Criminal – Sentencing

Bryant E. Wilson v. State of Indiana

27S02-1309-CR-584

Indiana trial court judges do not have discretion to impose partial consecutive sentences, the Indiana Supreme Court ruled.

Bryant E. Wilson was convicted of Class A felony counts of rape and criminal deviate conduct and Class B felony armed robbery. Grant Circuit Judge Mark E. Spitzer sentenced Wilson to 45 years in prison on the A felony counts and 20 years on the B felony. He ordered five years of the 20-year sentence be served consecutively to the 45-year term, with the remaining 15 years served concurrently, for an aggregate 50-year sentence.

“Is this form of sentence permissible?” Justice Steven David wrote for the court. “Because trial courts are limited to sentences authorized by statute, and because the relevant provisions of the Indiana Code here do not authorize such a hybrid sentence, the answer must be ‘no.’”

The Court of Appeals affirmed Wilson’s sentence in a split opinion. The majority of the COA panel held that such partial-consecutive sentences were permissible because statute did not prohibit them. Justices, however, sided with then-Chief Judge Margret Robb’s dissent in which she wrote courts may only impose sentences authorized by statute.

“Chief Judge Robb was correct when she said that “sentencing is a creature of the legislature and … we are limited to sentences that have been expressly permitted by the legislature,” David wrote. The panel wrote that allowing hybrid sentences would potentially create absurd and complicated results.

Justices remanded the matter for resentencing not to exceed the current aggregate 50-year term.

“There are a number of ways that Wilson’s aggregate sentence of fifty years can be effectuated by the trial court on remand, if it is merited. Imposing a partially consecutive sentence for one of the individual convictions is not one of them,” David wrote.

Indiana Court of Appeals

March 19

Criminal – Sentence/Single Episode of Conduct

Shawn Lawrence Corbally v. State of Indiana

41A04-1304-CR-175

The Indiana Court of Appeals slashed 105 years from a convicted rapist’s sentence, concluding the original 270-year sentence was far outside the norm for a single episode of conduct against a single victim.

Shawn Corbally broke into a Greenwood woman’s apartment in July 2012 and forced M.R. to engage in numerous sexual acts for two hours while making threats to harm her or her children, who were in the apartment. Her 1-year-old child was asleep in the bed with her when Corbally began assaulting the woman. She was able to identify Corbally because she saw his tattoo on his left arm depicting bricks. She also saw he was wearing cargo shorts and was able to see his face when he led her outside.

Police recovered his and M.R.’s DNA on the camouflage shorts they found in Corbally’s duffle bag. He was convicted of Class A felony burglary, Class A felony rape, four counts of Class A felony criminal deviate conduct, and two counts of Class B felony criminal confinement. He was sentenced to 270 years.

Corbally appealed on two grounds: that the trial court improperly allowed Greenwood Police Department investigator Patti Cummings to relate the contents of her interview with the victim, and that his sentence is inappropriate.

Cummings testified as to what M.R. had told her about the attack during an interview conducted the day after it occurred. Corbally’s attorney objected, arguing the state was asking Cummings to relate hearsay, but withdrew the objection after she told the court she could not stipulate to M.R.’s credibility.

The trial court erred in telling Corbally’s attorney that any challenge to M.R.’s credibility allowed the state to introduce prior consistent statements by her, the Court of Appeals held. The judges were skeptical of the state’s argument that Cummings’ testimony should be allowed because it was in some way related to the course of investigation work that led to Corbally’s arrest.

“Cummings almost completely rehashed the grisly details of the crimes as already testified to by M.R. Such evidence was entirely irrelevant to the course of the investigation, and it was not admissible as ‘course-of-investigation’ evidence. The trial court abused its discretion in admitting this evidence,” Judge Michael Barnes wrote.

But, this admission was a harmless error, the judges ruled, as there is overwhelming independent evidence of Corbally’s guilt.

Barnes and Judge Elaine Brown chose to reduce Corbally’s sentence after looking at other cases involving similar circumstances. Barnes noted that the longest affirmed sentence imposed for a single episode of sexual violence against one victim was 151 years since the adoption of the “inappropriate” standard for reviewing sentences. The majority decided to reduce his sentence to an aggregate of 165 years after concluding his 270-year sentence is an “outlier” in need of revision.

Judge Margret Robb dissented without opinion regarding the sentencing issue.
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March 24

Civil Plenary – Attorney-Client Privilege/Work-Product Doctrine

Purdue University v. Michael A. Wartell

79A02-1304-PL-342

An appellate panel had harsh words for Purdue University’s conduct in shielding a report investigating a former chancellor’s complaint of gender discrimination and harassment against former university president France Cordova.

The Indiana Court of Appeals affirmed a Tippecanoe Circuit ruling that Purdue could not argue attorney-client privilege or site the work-product doctrine to block the release of an independent investigator’s report to former Indiana University-Purdue University-Fort Wayne chancellor Michael Wartell.

“Purdue frets that recognizing equitable estoppel as an exception to the attorney-client privilege and the work-product doctrine ‘would have a chilling effect on the very principles on which [they] were founded,’” Judge Terry Crone wrote for the panel in a footnote. “On the contrary, one would hope that it would have a chilling effect on the tactics used by Purdue in this case.”

Wartell filed a formal complaint in 2011 alleging harassment and discrimination against Cordova, claiming among other things that Cordova pointed to a picture of Wartell during a meeting and said, “I am going to replace this one with a woman.” After he reached mandatory retirement age of 65, Wartell was replaced by current chancellor Vicky Carwein.

When Wartell filed his complaint, a process was agreed to by all parties in which an independent investigator would be hired. Indianapolis attorney John Trimble accepted the matter, but Purdue refused to allow Wartell to inspect the report produced after the investigation.

Wartell then sued Purdue, prevailing at the trial court and prompting the instant case.

“Trimble conducted the investigation by interviewing individuals, drafting a report, and submitting it to the Panel (of Purdue Trustees) without disclosing an advocate role,” Crone wrote. “In other words, Trimble conducted the investigation as an independent investigator,” so no attorney-client privilege exists and the work-product doctrine may not prevent disclosure.

But the court ruled that even if Trimble was acting as Purdue’s legal counsel, “Purdue represented to Wartell that it would appoint Trimble as an independent investigator, but then concealed from Wartell that it intended to retain Trimble as its legal counsel; thus, Wartell never had an opportunity to object.

“Based on these facts and circumstances, we cannot say that the trial court abused its discretion in ruling that Purdue should be equitably estopped from invoking the attorney-client privilege and the work-product doctrine as to Wartell,” the court concluded.

Criminal – Public Intoxication/Endangerment

David Sesay v. State of Indiana

49A02-1305-CR-434

A man convicted of public intoxication after a police officer found him near where his car had come to a stop between the road and a drainage ditch was improperly convicted, the Indiana Court of Appeals held.

David Sesay was convicted of Class B misdemeanor public intoxication in Marion Superior Court, but an appeals panel reversed, concluding that the state “failed to prove Sesay engaged in any conduct beyond intoxication that endangered his life.”

A little more than a year ago, an Indianapolis Metropolitan Police Department officer arrested Sesay after being dispatched to the southwest side of the city. The officer found Sesay shortly after 3 a.m. standing near the vehicle a few feet out of the roadway, covered in mud with alcohol on his breath and red or glassy bloodshot eyes. Sesay said his girlfriend had been driving the car, and she arrived on the scene a few minutes later.

But Sesay said the state failed to meet its burden that he endangered himself as is required under I.C. 7.1-5-1-3(a). The P.I. statute requires that a person endanger his or another person’s life; breaches the peace or is in imminent danger of breaching the peace; or harasses, annoys or alarms another person.

Sesay was convicted after a bench trial before Judge Linda Brown in which the officer was the sole witness.  Brown noted Sesay was staggering near a road, had vomited on himself and needed the officer’s assistance to be seated. “And so I think it can be inferred that he was endangering his life,” Brown said.

“Although there is no question that Sesay was in a public place and that he was intoxicated, the State failed to prove that he engaged in any additional conduct that endangered his life,” Judge Margret Rob wrote for the majority  joined by Judge Patricia Riley. “Sesay’s conviction is, therefore, reversed.”

Judge Cale Bradford concurred with a separate opinion. He would reverse, but he wrote “to clarify that while I believe that the evidence presented at trial was sufficient to show that Sesay was endangered at the time of his arrest, I believe that Indiana Code section 7.1-5-1-3 requires a showing that the endangerment resulted from an affirmative act by Sesay and, in the instant matter, the evidence presented below was insufficient to make such a showing.”
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March 25

Civil Infraction – Speeding/Proof

Brian Byrd v. State of Indiana

10A01-1309-IF-383

A driver pulled over in Clark County for speeding was able to convince the Indiana Court of Appeals that the infraction should be reversed because the state couldn’t prove its case.

Brian Byrd was pulled over for speeding by Clark County Deputy Sheriff Donovan Harrod, issuing a citation alleging Byrd violated I.C. 9-21-5-2 by driving 54 mph on a road having a prima facie speed of 30 mph. At trial, Harrod testified that the speed limits on Brown Station Way where Byrd was driving varied from 30 mph to 45 mph and back to 40 mph.

Byrd’s defense produced a photograph purportedly taken near the boat marina where Byrd was pulled over that showed a 45 mph speed sign. Harrod conceded that he “may have made a mistake” as to where [the speed limit] “turns into 45.” He also suggested that the photograph “could be wrong” and clarified that he had “said approximately that area” in his preceding testimony.

The prosecutor then described the state’s allegation as Byrd having traveled nine miles over the speed limit by going 54 mph. Byrd countered that he had his cruise control set to 45 mph upon entering Brown Station Way.

The trial court found him guilty of “Speeding 50/45” and ordered him to pay $154.

According to Indiana Code section 9-21-8-53(a), Byrd was entitled to specific allegations of his speed and location and the applicable prima facie or fixed speed applicable within the district or at the location. He was entitled to have those elements established by a preponderance of the evidence,” Judge L. Mark Bailey wrote. “The State provided the requisite specificity, but alleged only that Byrd violated Indiana Code section 9-21-5-2 by driving 54 miles per hour in a 30 miles per hour zone. The evidence adduced did not establish the violation alleged. And the State’s concession to, but without proof of, an alternative fixed speed limit results in a failure of proof.”•