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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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