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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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