Carol J. Blakney v. State of Indiana (12/23/04 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
Carol J. Blakney appeals her conviction for criminal trespass. Because the evidence shows that Blakney did not enter the real property of another beyond a posted “No Trespassing” sign and that she did not knowingly or intentionally aid, induce, or cause another person to do so, we find that the evidence is insufficient to support her conviction. Accordingly, we reverse. * * *In Re the Paternity of D.E.W.(K.) & S.M.W. (12/23/04 IndCtApp) [Family Law][Note: This sounds familiar because on 10/12/04 a different panel decided the case of the husband changed with trespassing. This is the wife. In Oct. the Muncie Star-Press coverage was headlined "Hog-farm trespass conviction upheld."]
To convict Blakney of trespass as charged in this case, the State must have proved that Blakney, who did not have a contractual interest in the property, knowingly or intentionally entered the Whiteheads’ real property located on County Road 650 South after having been denied entry by the Whiteheads or the Whiteheads’ agent. Ind. Code § 35-43-2-2(a)(1). A person has been “denied entry” under subsection (a)(1) when the person has been denied entry by means of “posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public.” I.C. § 35-43-2-2(b)(2). * * *
Here, the evidence shows that Blakney was seated behind the wheel of the Honda, which was parked in the grass between County Road 650 South and the “No Trespassing” sign on the gate. Although the “No Trespassing” sign was visible from the road, we nevertheless find that a person is not denied entry to another’s real property within the meaning of Indiana Code § 35-43-2-2(b)(2) until he or she actually enters the property beyond the notice. Although a person may be able to see the notice from afar, that person is still left without information to discern where the property protected by the notice actually begins. To eliminate such confusion, we hold that the denial of entry becomes effective at the point where the notice is actually posted and not at some indeterminate point in front of the notice. If the Whiteheads did not want people to enter their real property between County Road 650 South and the “No Trespassing” sign on the gate, then they should have posted the sign closer to County Road 650 South. Because the evidence shows that the Honda, in which Blakney was seated, was parked in front of the “No Trespassing” sign and that Blakney did not proceed past the sign, Blakney was not denied entry to the Whiteheads’ real property. Therefore, she did not commit the offense of criminal trespass.
However, this does not end our inquiry into the sufficiency of the evidence because the State also argues that Blakney’s conviction can be sustained under an accomplice liability theory. * * *
Here, the evidence simply shows that when Adams arrived on the scene, Blakney was seated behind the wheel of the Honda and Alves was standing on the gate. This Court affirmed Alves’ conviction for criminal trespass on appeal because “[w]hile there was no evidence Alves had opened or climbed over the gate and walked past the ‘No Trespassing’ sign, the jury could have reasonably inferred that at least part of his body entered the airspace above the Whiteheads’ property.” Alves, 816 N.E.2d at 66. Because the evidence shows that Alves did not open or climb over the gate, the evidence is insufficient to prove that Blakney knew Alves would enter the airspace above the Whiteheads’ property with part of his body. Accordingly, the evidence is insufficient to prove that Blakney knowingly or intentionally aided, induced, or caused Alves to commit the offense of criminal trespass. Because the evidence is insufficient to support Blakney’s conviction for criminal trespass under either a principal or accomplice liability theory, we must reverse her conviction. Reversed.
RILEY, J., and CRONE, J., concur.
[Issue] Whether the trial court committed reversible error when it did not make specific findings and conclusions pursuant to Indiana Trial Rule 52. We affirm. * * *Jason Patrick v. State of Indiana (12/23/04 IndCtApp) [Criminal Law & Procedure]The trial court has a duty to determine whether a modification of existing support and custody arrangements is in the best interests of the children, and its decision to grant Mother’s motion to correct error and to hold a new hearing comports with that duty. Accordingly, we hold that the trial court did not abuse its discretion when it granted Mother’s motion to correct error. In addition, the trial court’s failure to issue findings in accordance with Trial Rule 59(J) is not reversible error because its rationale is readily apparent from its ruling. Affirmed.
SULLIVAN, J., and BARNES, J., concur.
In February 2004, Jason Patrick pleaded guilty to Murder; Battery, as a Class B felony; and Criminal Confinement, as a Class C felony. Following a sentencing hearing, the trial court identified mitigating and aggravating circumstances and sentenced Patrick to the maximum term of ninety-three years. Patrick now appeals and raises a single dispositive issue for review: whether his sentence violates the Sixth Amendment under Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied. We reverse and remand. * * *James Alexander v. State of Indiana (12/23/04 IndCtApp) [Criminal Law & Procedure]As we have discussed, the trial court identified five aggravating factors: (1) Patrick’s criminal history; (2) his probationary status at the time he committed the instant offense; (3) the victim’s age (relevant to murder only); (4) the likelihood that he will re-offend; and (5) the nature and circumstances of the crimes. Of those aggravators, the court explained that Patrick’s criminal history was “insignificant.” Indeed, Patrick has only one misdemeanor conviction. The court also stated that the two “overriding” aggravating factors were the likelihood that Patrick will commit more crimes and the nature and circumstances of his offenses. Those two aggravators are improper, and the sentencing statement shows that this is not a case in which the invalid aggravating circumstances played a relatively unimportant role in the trial court’s decision. * * *
Reversed and remanded.
VAIDIK, J., concurs in part with separate opinion.
KIRSCH, C.J., concurs in part and dissents in part with separate opinion.VAIDIK, Judge, concurring in part.
I concur in result. I part ways with the majority’s conclusion that Blakely is not implicated as to the aggravator that Patrick was on probation at the time he committed the instant offense. The majority reaches this conclusion, pursuant to Bledsoe, by finding that this aggravator is derivative of Patrick’s criminal history. * * * Therefore, I think that the aggravator at issue here—that Patrick was on probation at the time of the offense—is a “fact” that must be admitted by Patrick or that a jury must find beyond a reasonable doubt.KIRSCH, Chief Judge, concurring in part and dissenting in part .
I fully agree with the holding of the majority that the decision of the United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied, implicates Indiana’s sentencing scheme, but I believe that the Patrick failed to preserve the issue for appellate review by failing to object at the time of sentencing. I, therefore, respectfully dissent and would affirm the decision of the trial court in all respects.
Appellant-Defendant James S. Alexander (“Alexander”) appeals his conviction for the murder of his wife, Mary Bland (“Wife”). We reverse and remand for possible retrial. * * *Posted by Marcia Oddi at December 23, 2004 04:50 PM[Issues] Whether the trial court abused its discretion by excluding the testimony of an expert witness; and Whether the trial court abused its discretion by instructing the jury. * * *
[H]ere, Doctor Coons was the sole witness prepared to testify that Alexander was legally insane at the time that he committed the offense. He was also the only expert witness with an opinion contrary to the three court-appointed experts on the issue of Alexander’s sanity at the time of Wife’s murder and, therefore, the only viable witness to support Alexander’s insanity defense. As such, the erroneous exclusion of Doctor Coons as a witness was not harmless. Accordingly, the trial court committed reversible error when it excluded his testimony. * * *
Alexander further argues that the trial court abused its discretion by instructing the jury. Our resolution of the exclusion of a witness issue obviates the need to address the appropriateness of the trial court’s jury instructions. However, because this issue may reappear, we will address it here. * * *
In the present case, Alexander asserts that the trial court improperly instructed the jury regarding the intent element of murder by giving State’s Instruction Two. Alexander also asserts that the trial court abused its discretion by refusing to give an instruction on the penal consequences of a “not guilty by reason of insanity” verdict, i.e., Instruction Nine, because the State misled the jury that such a verdict was tantamount to a finding of “not guilty.” We separately address each of these arguments. * * *
For the foregoing reasons, we reverse Alexander’s murder conviction and remand for possible retrial. Reversed and remanded.
SHARPNACK, J., and MAY, J., concur.