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Erroneous jury instruction leads to DWI conviction reversal
Jennifer Nelson for www.theindianalawyer.com
A jury instruction given at a man’s drunken-driving trial resulted in fundamental error because it contained a constitutionally impermissible evidentiary presumption, the Indiana Court of Appeals concluded. As such, the court reversed the man’s conviction.
At Dannie Carl Pattison’s jury trial for Class C misdemeanor operating a vehicle with an alcohol concentration equivalent of 0.08 percent or more, the jury was given an instruction regarding rebuttable presumption. The instruction said if the evidence establishes that a chemical test was performed within three hours and the person charged had at least 0.08 percent of alcohol in 210 liters of the person’s breath, the jury shall presume that Pattison had an ACE of at least 0.08 percent at the time he operated the vehicle. The last sentence of the instruction said the presumption is rebuttable; Pattison argued the presumption created in the instruction unconstitutionally shifted the burden of proof to him.
In Dannie Carl Pattison v. State of Indiana, 27A05-1411-CR-517, the judges agreed, noting the instruction was essentially the same one given in Hall v. State, 560 N.E.2d 561, 563 (Ind. Ct. App. 1990). In Hall, the court held that a jury instruction that tracked the language of the statute was erroneous because it ran the risk of misleading a jury into thinking the presumption was mandatory, rather than permissive.
Because Pattison didn’t object to the instruction at trial, the COA evaluated it for fundamental error. The judges reversed Pattison’s conviction because the defect of the jury instruction wasn’t corrected by any other jury instruction and the error was not harmless based on the other evidence presented.
Justices to Decide Dealership Relocation Dispute
The Indiana Supreme Court is going to decide whether a Toyota dealership can relocate from Anderson to Fishers over the objections of three existing greater Indianapolis Toyota dealers.
Andy Mohr Toyota, Butler Toyota and Tom Wood Toyota asked the Auto Dealer Services Division of the Indiana Secretary of State’s Office to find the proposed relocation was without good cause, which would have blocked the move. But the division denied their requests, ruling that because the dealerships were outside the 6-mile market area where the dealership would relocate, they lacked standing for a challenge under state law.
Anderson-based Ed Martin Toyota sought to relocate to Fishers.
The dealerships appealed to a Marion Superior Court that affirmed the division’s ruling, but in a 2-1 ruling in August, a majority of the Indiana Court of Appeals reversed and sent the matter back to the division for a do-over. The judges wrangled with interpreting the Indiana Dealer Services statutes as a matter of first impression on whether the proposed entry into the market constituted a proposed dealership or a relocation, each of which is addressed in Indiana Code.
The case is Andy Mohr West, Inc. d/b/a Andy Mohr Toyota, Butler Motors, Inc. d/b/a Butler Toyota, and TW Toy, Inc. d/b/a Tom Wood Toyota v. Office of the Ind. Sec. of State, Auto Dealer Services Div. et al, 49S02-1511-PL-668.
ANOTHER DAY IN AMERICA by Jim Redwine
Gavel Gamut
By Jim Redwine
(Week of 07 December 2015)
ANOTHER DAY IN AMERICA
A television reporter with the British Broadcasting Company announced the December 02, 2015 incident in San Bernardino, California as:
“Just another day in the United States of America. Another day of gunfire, panic and fear.â€
This description sounded like normal British haughtiness toward their one-time colony until Cable News Network anchor Chris Cuomo reported on December 03, 2015 that this latest situation was the 355th such event in America this year. Cuomo did not define what qualified as a “mass shootingâ€. Regardless, there is no doubt America has suffered greatly.
Jim Sciutto, CNN’s Chief National Security Correspondent, said it used to take years or, at least months, for a person to be “radicalizedâ€, but now it is a quick and easy process requiring a few days.
The twenty-four/seven news coverage of each new event almost always follows this pattern:
- Report with shock and awe; then
- Seek to assign blame.
This process is flawed. There is no need to assign blame. The shooters are to blame. We know who they were in San Bernardino: twenty-seven year old Syed Rizwan Farook and his twenty-eight year old wife, Tashfeen Malik. They murdered fourteen people and wounded twenty-one others. Two police officers were hurt in the gun battle which resulted in the mass murderers’ deaths.
We also know America, Farook’s native country, and Pakistan, Malik’s native country, are not to blame. We know Saudi Arabia, which Farook visited, is not to blame. And we know neither Arabs nor Muslims are to blame. However, our media and many politicians have, once again, responded with venom toward all of these.
When Indiana’s Reverend Jim Jones murdered 918 of his Christian followers and Congressman Leo Ryan, who tried to free them, no one sought to blame Christianity.
No one blamed Catholicism for the child abuse by priests.
It is Israel, not Judaism, we hold accountable for the slaughter at the refugee camps of Sabra and Shatila in Palestine.
America prides itself on equal protection and due process. When the troubling phenomenon of quick and easy radicalization becomes reality, we need not seek to assess blame but to change the outcomes.
If Italian immigrants are painted with the broad brush of the Mafia, some few Italian-Americans may decide to commit crimes in response.
If “No Irish Need Apply†signs appear at work places, some few Irish-Americans may turn from seeking work to committing crimes.
If Native Americans are called savages, some few Indians may act savagely.
If Jews are blacklisted from country clubs and society, some few Jewish-Americans may turn to crime.
And, much as many Americans tend to blame all Arabs and Muslims for the actions of a tiny minority, America also tends to blame all African Americans for the criminal acts of some. Of course, this has led to a feeling among a few otherwise peaceful Blacks that violence is necessary.
And if one opines these are not mass murder type situations, I submit the Christian Timothy McVeigh who murdered 168 people and injured 680 more. His convoluted logic called for him to attack a government building in Oklahoma City to avenge the media’s and the government’s treatment of his fellow Christians led by David Koresh of the Branch Davidians in Texas.
So, if radicalization is the problem, how should we solve it? Perhaps we can address this question next week.
Evansville women ready for home opener
After a six-game road trip to open the season, the Evansville women are finally at the Ford Center to take on Murray State. The Aces and Racers will tangle at 1 p.m. in downtown Evansville.
UE is 1-5 on the season and dropped a 74-56 decision last time out at Bowling Green. Following Saturday’s contest, UE will take to the road to face Nebraska on Tuesday before coming home for three in a row against UT Martin, Ball State and IUPUI. Freshman Kerri Gasper was named to the All-Tournament Team in the Cal Poly/ShareSLO Holiday Tournament in San Luis Obispo, Calif. Gasper averaged 11.5 points per game in the two contests in California and also hit a team-best 10 free throws. She has gotten off to a good start to her inaugural college season, posting 10.7 points per game in the first six contests, she is also third on the squad with 4.0 rebounds per game.
Junior Sara Dickey is the top scorer on the squad as she has posted 14.7 points over the first six games of the year. After recording double figures in each of the first five games this year, Dickey has been held to single digits in the last two games. She enters Saturday’s tilt as the top rebounded on the team with 4.8 per game and also leads the squad in assists (16) and steals (14).
Camille Coleman has notched 9.7 PPG in her first six games and leads a youth movement on the Purple Aces with two of the top three scores being true freshmen. Coleman had the best game of her career at Bowling Green, scoring a career-high 19 points on a 6-of-10 shooting effort; she also converted on 4 of her 8 3-pointers and was 3-3 from the line.
Murray State comes to the Ford Center with a 2-5 record; after winning their first two games of the season, the Racers have lost five in a row, including a 70-57 decision on Wednesday versus Southern Illinois. Ke’Shunan James is the leading scorer for the Racers, checking in with 18.1 points per game, she is also the #2 rebounder on the squad with 6.4 per game. Also averaging double figures is LeAsia Wright, who has registered 15.3 points per game. Their top rebounded is Kyra Gulledge, who has hauled in 9.1 caroms per contest.
USI Men’s XC/T&F Inks Three In Early Signing Period
University of Southern Indiana Men’s Cross Country/Track & Field announced that incoming freshmen Nathan Hall (Springfield, Missouri), Tyler Lowhorn (Palatine, Indiana), and Javan Winders (Mansfield, Tennessee) have signed national letters of intent to compete for Head Coach Mike Hillyard’s Screaming Eagles in 2016-17 season.
Hall is currently a senior at Kickapoo High School in Springfield, Missouri, where he was the SWCCCA Runner of the Year in 2014 and 2015.
An All-State honoree, Hall finished ninth at the MHSAA Class 4A Cross Country Championships as a junior in 2014 before placing 26th as a senior this past fall. He also is a four-time All-District honoree as well as a two-time Ozark Conference and sectional champion.
On the track, Hall qualified for the MHSAA Class 5A Championships in the 1,600 meters in 2015, finishing 13th in the event.
“Nathan is one of the top five seniors in the state of Missouri,†Hillyard said. “He is a cross country specialist with a tremendous upside. He recently finished 32nd at the Foot Locker Midwest Regional, which features many of the best high school athletes in the Midwest.â€
Lowhorn is in his final year at Warren Central High School in Indianapolis, Indiana, where he helped his squad to sectional and regional titles in 2013.
A state-qualifier as a junior in both cross country as well as track & field, Lowhorn finished 98th at the 2014 IHSAA Cross Country Championships before helping his 4×800-meter relay team to a 12th-place showing at the 2015 IHSAA Track & Field Championships.
“Tyler is a great fit for our program,†Hillyard said. “He was the eighth-ranked junior in the state of Indiana in cross country a year ago, but was under the radar a bit after dealing with an early-season injury during his senior season. He’s a sleeper with big-time potential.â€
Winders is a senior at Henry County High School in Paris, Tennessee, where he was a two-time All-State and four-time All-Region honoree.
A Mid-State Cross Country Association first-team honoree in 2015, Winders won back-to-back regional titles during his junior and senior seasons. He finished eighth at the TSSAA Division I Class AAA State Cross Country Championships this past fall after placing third in the 3,200 meters at the TSSAA Division I Class AAA State Track & Field Championships last spring.
“Javan was the 36th-ranked junior in the country last spring for 3,200 meters,†Hillyard said. “He was recruited by multiple top-20 NCAA Division I programs, so needless to say, we are very excited that he chose our program. His impact will be immediate.â€
USI, which has won 11 straight Great Lakes Valley Conference cross country titles, begins the 2016 track & field schedule January 16 when it competes at the Little Giant Invitational in Crawfordsville, Indiana.
Evansville Forward Penny Recalled By Binghamton
The Evansville IceMen, proud ECHL affiliate of the NHL’s Ottawa Senators and AHL’s Binghamton Senators, and Head Coach Al Sims announced Friday that rookie forward Ryan Penny has been recalled by Binghamton.
The 21-year-old from Fall River, Nova Scotia was assigned to the IceMen October 13, four days before Evansville’s home opener. Penny played in all 17 IceMen games this season and was tied for the team lead with seven assists and ten points. He scored his first professional goal, the game-winner, in Evansville’s 3-2 victory in Greenville on Halloween.
Penny signed an AHL contract with Binghamton in July after totaling 70 points in 66 games for the Rouyn-Noranda Huskies of the QMJHL in his final season of juniors in 2014-15.
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