Eugene D. Vandergriff v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
Eugene C. Vandergriff appeals his convictions for Neglect of a Dependent, as a Class C felony, and Battery, as a Class D felony. Vandergriff’s sole contention on appeal is that his convictions violate the Indiana Double Jeopardy Clause. We affirm. * * *Dejuan Emerson v. State of Indiana (8/6/04 IndCtApp) [Criminal Law & Procedure]Although we do not condone the prosecutor’s method of bringing the charges in this case, the two convictions do not violate the common law rule prohibiting dual convictions for the same act. As Justice Boehm noted in Guyton [Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) ], we cannot say that there is no reasonable possibility that the jury used the same evidence to support the neglect and battery charges. However, we can say that the facts supporting these two crimes are separate and distinct and, thus, no common law double jeopardy violation occurred. Overwhelming evidence of two distinct crimes was presented to the jury. In addition, the jury was not directed, through closing argument or in final instructions, to base the charges on the same act. Further, at one point during closing argument the prosecutor referred to the grabbing incident as the one establishing the battery, and defense counsel referred to the tossing incident as the one establishing the battery. Therefore, we conclude, as a matter of law, that the facts supporting the neglect do not embrace all of the facts supporting the battery. We hold that Vandergriff’s convictions for Class C felony neglect and Class D felony battery may stand. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.
Dejuan Emerson appeals from the denial of his petition for post-conviction relief and presents the following issues for review: 1. Whether Emerson’s appellate counsel was ineffective when she failed to argue on direct appeal that the State presented insufficient evidence to prove that Emerson had acted in concert or by agreement with another. 2. Whether stare decisis requires reversal of Emerson’s murder conviction. We affirm. * * *Marvin Taylor v. State of Indiana (7/20/04 IndCtApp) [Criminal Law & Procedure][Issue 1- Appellate Counsel] We agree with our supreme court’s statement in its Order on Rehearing that “the evidence in Emerson’s trial better supports affirming the convictions on the basis of accomplice liability because it tends to establish that Porter and Emerson actually arrived at the basketball court together.” Appellant’s App. at 100-01. Accordingly, Emerson has not shown that the unraised issue is significant and obvious from the record, and he has not demonstrated that the post-conviction court clearly erred when it concluded that his appellate counsel was not ineffective. * * *
[Issue 2 - Stare decisis] Emerson also asserts that his murder conviction warrants reversal under the doctrine of stare decisis. As the State points out, Emerson failed to raise that argument in either his original petition for post-conviction relief or his amended petition. And during the post-conviction hearing, Emerson’s counsel argued only that the doctrine of inconsistent verdicts should apply to Emerson’s case. Issues not raised in a petition for post-conviction relief may not be raised for the first time on appeal. See Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2002), trans. denied. The failure to raise an alleged error in the petition waives the right to raise that issue on appeal. Id. Because Emerson failed to raise his stare decisis argument to the post-conviction court, the argument is waived.
Waiver notwithstanding, stare decisis does not apply here. The doctrine of stare decisis states that, when a court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. See State v. Mileff, 520 N.E.2d 123, 126 (Ind. Ct. App. 1988) (citing Black’s Law Dictionary 1577 (4th Rev. Ed. 1968)). In Porter, the court determined that, based on the evidence presented at Porter’s trial, the State failed to present sufficient evidence that Porter and Emerson had acted in concert or by agreement. Here, Emerson argues that his appellate counsel was ineffective. Further, as the court noted in its Order on Rehearing, the State tried Emerson and Porter separately, and the evidence in Emerson’s case was different from the evidence in Porter’s. In the end, contrary to Emerson’s contentions, the holding in Porter regarding the sufficiency of the evidence in that case does not dictate the outcome of his ineffective assistance of appellate counsel claim. Affirmed.
KIRSCH, C.J., and RILEY, J., concur.
Appellant, Marvin Taylor, brings this interlocutory appeal from the trial court’s denial of his motion to suppress evidence discovered during an inventory search of his automobile. We affirm. * * *Posted by Marcia Oddi at August 6, 2004 02:51 PMIn short, Officer McPherson was faced with a driver who was not lawfully permitted to drive. Whether he was arrested or merely cited, Taylor could have quickly returned to drive his vehicle and again been in violation of the law. Even though Taylor could have been given the chance to make arrangements to properly take care of the vehicle, given the circumstances we are unable to say that the decision to impound the car was unreasonable. See United States v. Stephens, 350 F.3d 778 (8th Cir. 2003) (search of automobile was reasonable under Fourth Amendment as inventory search where defendant was arrested for driving without valid license so that he could not continue to operate vehicle, making it appropriate for police to take immediate possession of and secure vehicle).
Because we have determined that one of the reasons given by Officer McPherson did warrant impoundment, we need not address the other reasons given by McPherson. The judgment of the trial court is affirmed.
VAIDIK, J., and MAY, J., concur. [Note: This decision may have originally been unpublished.]