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Rule of lenity doesn’t apply on man’s escape conviction

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The rule of lenity doesn’t apply to the case of a Marion County man who tried to break into a home while serving home detention as a condition of probation, the Indiana Court of Appeals concluded. The judges upheld Diano Gordon’s convictions of Class D felonies escape and attempted residential entry.

Around noon on Dec. 28, 2011, Jodi Pearce heard loud noises coming from her next-door neighbor’s home. She saw two men try to kick in the back door. She called 911, watched the men leave and ran outside to see what direction they headed. An hour later, Pearce rode with a police officer to Gordon’s home, where she identified the man standing outside as the shorter of the two men trying to break into the home.

Gordon had an electronic monitoring bracelet on his ankle as a condition of home detention at the time of the attempted break-in.

At the bench trial, Pearce testified that Gordon was one of the men she saw; Gordon didn’t object to Pearce’s identification testimony.

Because he failed to object at trial, Gordon argued on appeal that the fundamental error doctrine should prevent admittance of evidence regarding the show-up identification by Pearce on the day of the attempted break-in.

“Pearce observed Gordon for several minutes in the middle of the day at a fairly close distance. Furthermore, her attention was focused solely on Gordon and his companion for that length of time. And Pearce was absolutely certain that Gordon was the man kicking her neighbor’s door. Under these facts and circumstances, we cannot conclude that the show-up identification was unduly suggestive,” Judge Paul Mathias wrote in Diano L. Gordon v. State of Indiana, 49A05-1205-CR-242.

Even if the judges concluded the trial court erred by admitting evidence of the show-up identification, Gordon’s fundamental error argument would fail because Pearce watched him try to break into the neighbor’s home and saw him leave the scene, Mathias continued. Therefore, there was an independent basis for the in-court identification.

The COA rejected Gordon’s claim that the rule of lenity should apply to his escape conviction and be reduced to Class A misdemeanor unauthorized absence from home detention. But both statutes at issue here put the offender on notice that the conduct would result either in Class D felony escape or Class A misdemeanor unauthorized absence from home detention.

“It was within the prosecutor’s discretion to determine which charge was warranted by Gordon’s conduct,” Mathias wrote.

 

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  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

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