# Brown v. State

> Indiana Court of Appeals · October 16, 2008 · 894 N.E.2d 598

URL: https://www.frixlaw.com/law-library/cases/9518729

## Case

- **Full name:** Jesus BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** October 16, 2008
- **Citations:** 894 N.E.2d 598; 2008 Ind. App. LEXIS 2263; 2008 WL 4593644
- **Precedential status:** Published
- **Opinion:** Concurrence by Baker
- **Judges:** Brown, Mathias, Baker
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9518729

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9518729. Public record. Not legal advice.