Jury’s failure to appear verdict affirmed after man claimed intent was unproven

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A southern Indiana man whose counsel admitted to a jury that the defendant failed to appear in court on a felony charge, but didn’t do so intentionally, lost his appeal of the jury’s guilty verdict Wednesday.

The Indiana Court of Appeals affirmed the Washington Circuit Court’s verdict in Derek J. Tanksley v. State of Indiana, 19A-CR-2411. The juryconvicted Derek Tanksley of a Level 6 felony charge of failure to appear for a court date in a separate criminal felony case, adjudicated him a habitual offender and sentenced him to an aggregate of six years in prison.

When Tanksley was released on the initial criminal charge, he signed a release promising to appear in court to answer the charges at a specific time and date, acknowledging that failing to do so would result in a warrant being issued for his arrest.

At his trial, Tanksley’s counsel argued the state had not met the fourth element under the failure to appear statute, I.C. § 35-44.1-2-9. The statute says the state must prove beyond a reasonable doubt that Tanksley: (1) had been released from lawful detention; (2) on condition that he appear at a specified time and place; (3) in connection with a felony charge; but (4) intentionally (5) failed to appear at the specified time and place.

But the state asserted that Tanksely’s argument was one of identity, and that his counsel’s admission during opening and closing that Tanksley had failed to appear was dispositive, regardless of whether he intended to miss his court date. The COA agreed.

“We conclude from Tanksley’s opening statement and closing argument that he, as a matter of strategy, made a judicial admission on the question of identity. Counsel’s statements were more than casual or mistaken remarks,” Senior Judge John Sharpnack wrote for the panel. “Instead, Tanksley unequivocally and repeatedly conceded to the jury and the trial court that he was the person who the State alleged had been released from incarceration and ordered to appear at a specific time and place in connection with a felony case, but he did not appear. Tanksley disputed only whether his failure to appear was intentional.

“Under these circumstances,” Sharpnack wrote, “Tanksley is bound by his judicial admission and may not raise on appeal the issue of identity.”

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