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Location, location, location determines who has burden of proof

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Looking at the distance in the state statute between the description of the offense and a statutory exception, the Indiana Court of Appeals ruled the defendant had the burden of proof regarding a victim’s age.

Audie Wilson was convicted of sexual misconduct with a minor as a Class B felony; attempted sexual misconduct with a minor as a Class B felony; and sexual misconduct with a minor as a Class C felony.

During the trial, he did not object when the judge instructed the jury that the defendant had to prove by a preponderance of evidence that he reasonably believed the juvenile victim, C.C., was at least 16 years old.

On appeal, Wilson argued the trial court made a fundamental error by improperly giving him the burden of proving why he thought the victim was 16 years old.

Previously, in Moon v. State, 823 N.E.2d 715 (Ind. Ct. App. 2005), the Court of Appeals held the lower court made no error in assigning the defendant the responsibility of what he reasonably believed the victim’s age to be.

Wilson contended the Moon court erred. He asserted the “reasonable belief” defense negates a material element of the crime – the defendant’s knowledge of the victim’s age. Therefore, the defendant’s knowledge of the victim’s age must be proven beyond a reasonable doubt by the state.

The COA disagreed in Audie Wilson v. State of Indiana, 49A02-1210-CR-846.
 
The Court of Appeals pointed to the sexual misconduct statute and location of the exception in relation to the location of the definition of the principal offense. There, the exception was contained in a subsequent clause so, according to the COA, the defendant must raise an affirmative defense and must bear the burden of proof.

In a footnote, the court pointed out that no one challenged the language used in this particular jury instruction.

“We believe the instruction as given was erroneous,” Judge L. Mark Bailey wrote. “However, any error in this instance inured to Wilson’s benefit.”
 

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  1. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  3. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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