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Case shows challenge of ending res gestae

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The Indiana Court of Appeals affirmed a man's convictions and sentence for the 2007 murder and rape of a 14-year-old girl in Columbus, noting that the evidence the man objected to being admitted showed the challenges presented by eliminating the doctrine of res gestae.

In Demetrick D. Shepherd v. State of Indiana, No. 03A05-0712-CR-720, Demetrick Shepherd challenged his felony murder, felony rape, and felony burglary convictions and 90-year consecutive sentence for the murder of C.P. He raised two issues on appeal: whether the trial court committed reversible error by admitting evidence that he made advances toward C.P. and had taken a car without permission a week before the murder in violation of Ind. Evid. Rule 404(b); and that his sentence is inappropriate in light of his character and the nature of the offenses.

Shepherd believed the trial court erroneously admitted improper evidence of prior conduct and filed a motion in limine to prevent the state from introducing evidence that he had hit on C.P. the week before she was murdered and that same night he took without permission a car that belonged to Michelle Olvey, a family friend of C.P. and whose home C.P. was in when she was murdered. The trial court denied the motion.

"Assuming, without deciding, that the challenged evidence was erroneously admitted under Evidence Rule 404(b), the admission of the evidence of Shepherd's prior flirtations with the victim, no matter how vulgar, along with the evidence that Shepherd previously used Olvey's car without her permission, was clearly harmless beyond a reasonable doubt," wrote Judge James Kirsch.

In light of the conduct Shepherd admitted to, the evidence of his prior flirtation, and evidence he took Olvey's car had limited prejudicial effect.

In a footnote, the judge wrote that prior to the Indiana Supreme Court decision Swanson v. State, 666 N.E.2d 397 (1996), this evidence would have come in under the doctrine of res gestae. Now, it would only come in under the exception to Evid. R. 404(b).

"We believe that evidence such as this illustrates the challenges presented by the elimination of the doctrine of res gestae. In the present case, the story of these crimes could not be properly told without this evidence," he wrote.

The Court of Appeals affirmed Shepherd's sentence, finding the aggravating factors outweighed the mitigating factors and that consecutive sentences weren't inappropriate. In a separate footnote, the appellate court wrote it didn't consider whether to increase Shepherd's sentence and that briefs in the matter were filed prior to the Feb. 10, 2009, Supreme Court decision McCullough v. State. The state didn't present an argument that Shepherd's sentence should be increased.

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  1. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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