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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. 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!!!

  3. 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?

  4. 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?

  5. 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.

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