ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  3. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

ADVERTISEMENT