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COA orders new trial in utility theft case

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The Indiana Court of Appeals has reversed a theft conviction and ordered a new trial for a man who was prohibited from discussing a lesser offense during closing argument.

In the case of Edward J. Dixey v. State of Indiana, No. 82A05-1104-CR-172, Edward Dixey was convicted of Class D felony theft after an investigation revealed that utility equipment had been tampered with, allowing Dixey to use electricity without paying for it. On appeal, Dixey argued that the trial court erred when it prohibited him from discussing in closing argument that while the state failed to prove he had committed theft, it may have proven he committed a lesser offense instead.  

In August 2010, Dixey was renting a house in Evansville with roommate Steven Keller, who had also signed the lease. Dixey agreed to pay the rent, while Keller agreed to pay the cable and the electricity, which included gas. Although Dixey had placed the utilities in his name, he did not follow up with Vectren, the electric company, or any other utility company to ensure that the bills were being paid by Keller.

In August 2010, Dixey’s ex-wife, Carolyn, along with their two daughters and Carolyn’s son from a subsequent marriage moved in with Dixey. Around the same time, Dixey’s son, James, moved into the residence as well.

On Aug.16, 2010, Dixey arrived home to find that Vectren had disconnected his electricity for failure to pay an outstanding balance. Dixey testified that up until that day, he believed Keller had been paying the electric bill.

Dixey told Keller that he needed to have the electricity turned on by Aug. 18. Keller hired a friend to fix the electrical service box located on the outside of the house that had been damaged by high winds before the electricity had been disconnected. Dixey was not at home when the man performed the work, but the electricity was on when he arrived home that day. Dixey testified that James said he had the Vectren bill placed in his own name to “stop the friction going on” between Keller and Dixey, but Dixey did not call Vectren to confirm what James had told him.

On Aug. 31, 2010, a primary meter specialist for Vectren visited Dixey’s residence to investigate a report of a possible electrical service diversion and upon inspecting the weather head, which is the location where the Vectren wires connect with the customer’s wires, noticed that someone had tampered with them, thereby diverting electricity.

At trial, after all the evidence was presented, Dixey submitted four proposed jury instructions. Three of these instructions set forth the elements of what Dixey alleged were lesser-included offenses, including Class A misdemeanor criminal conversion, Class A misdemeanor criminal deception and Class B infraction utility fraud. The fourth instruction stated that “[i]t is a general rule of statutory construction that when general and specific statutes conflict in their application to a particular subject matter, the specific statute will prevail over the general statute.” The trial court instructed the jury on criminal conversion as an inherently lesser-included offense of theft but refused Dixey’s remaining tendered instructions.

The COA held it could not say that the trial court erred by refusing to allow Dixey to argue that under Indiana law, a specific statute prevails over a more general one, although he was free to argue that the evidence presented was more consistent with one of the lesser offenses, inasmuch as that was his defense. Accordingly, the appeals court reversed and remanded for a new trial.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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