Opinion

Brown v. State

  • 894 N.E.2d 598
  • 2008 Ind. App. LEXIS 2263
  • 2008 WL 4593644
Court
Indiana Court of Appeals
Filed
Oct 16, 2008
Status
Published
Author
Baker
On the bench
Brown, Mathias, Baker
Cited by
4 cases
Authority
More cited than 0.3%

The opinion

BAKER, Chief Judge,

concurring in result.

Although I concur in the result reached by the majority, I must respectfully part ways with my colleagues’ analysis. Like the proverbial duck, if it looks like home detention, is treated as home detention, and is called home detention, it is home detention. I believe this to be true regardless of the way in which it is being served. Whether on probation or as part of an executed sentence, home detention is home detention. A defendant commits class D felony escape if he “knowingly or intentionally violates a home detention order,” I.C. § 35^14-3-5(b), and he commits class A misdemeanor unauthorized absence from home detention if he violates an order of home detention in any of three possible ways, I.C. § 35-38-2.5-13.

I believe the majority’s interpretation of these statutes to be overly technical, inasmuch as nothing in the former statute limits its application to an executed sentence and nothing in the latter limits its application to a defendant on probation. It is apparent to me that the General Assembly crafted this legislative scheme in an effort to provide flexibility to prosecutors in charging the crime and to juries in crafting a verdict. Thus, I disagree with my colleagues’ conclusion that a defendant who is serving home detention as part of an executed sentence and violates the terms of his detention order may only be charged with and convicted of a class D felony.

That said, in this case, Brown neglected to object to the trial court’s jury instructions, which did not include an instruction on the lesser-included class A misdemean- or, or to proffer his own instruction on the issue. He argues that, notwithstanding his failure to do so, the trial court committed fundamental error by failing to give such an instruction because this failure violated the rule of lenity. The rule of lenity, however, does not apply when the court is faced with “two specific statutes, which are not ambiguous.” Schnepp v. State, 768 N.E.2d 1002, 1007 (Ind.Ct.App.2002). The two statutes at issue herein are specific and unambiguous; consequently, the rule of lenity does not apply. Under these circumstances, I agree that the judgment of the trial court should be affirmed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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