holding that an arrest record was inadmissible where there was no evidence that the officer who prepared the arrest report had personal knowledge of the information contained therein
How later courts described this case
- holding that an arrest record was inadmissible where there was no evidence that the officer who prepared the arrest report had personal knowledge of the information contained therein
Written by the judges who cited it.
Later courts went against this
Disapproved on other grounds by Jaramillo v. State, 823 N.E.2d 1187 (2005)
808 N.E.2d 724, 727 (Ind. Ct.App.2004) (holding that an arrest record was inadmissible where there was no evidence that the officer who prepared the arrest report had personal knowledge of the information contained therein), disapproved of on other grounds by Jaramillo v. State, 823 N.E.2d 1187 (Ind.2005),
The opinion
BAILEY, Judge,
concurring and dissenting. .
I concur in the majority's reversal of Serrano's conviction for sexual misconduct with a minor, a Class C felony, on the basis that the trial court's admission of the arrest warrant constituted reversible error. However, I respectfully dissent from the majority's conclusion that Serrano may not be retried upon remand. The United States Supreme Court has held that where the "trial court erred in admitting a particular piece of evidence {without which] there was insufficient evidence to support a judgment of conviction [and where] clearly with that evidence, there was enough to support the sentence[,] ... a reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause." See Lockhart v. Nelson, 488 U.S. 33, 40 , 109 S.Ct. 285 , 102 L.Ed.2d 265 (1988). In addition, our supreme court has repeatedly held that "where the appellate court reverses the conviction for 'trial error' and the evidence offered by the State and admitted by the trial court-whether erroneously or not-would have been sufficient to sustain a guilty verdiet, no double jeopardy question is presented on a retrial." Seq, *729 e.g., Carpenter v. State, 786 N.E.2d 696, 705 (Ind.2008) ("[I)f all the evidence, even that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial on the same charge."); see also Williams v. State, 544 N.E.2d 161, 163 (Ind.1989), reh'g denied; Perkins v. State, 542 N.E.2d 549, 551 (Ind.1989).
Here, the admissible evidence, which demonstrates that Serrano engaged in sexual intercourse with fourteen-year-old D.A., coupled with the inadmissible evidence, which reveals that Serrano was eighteen years old at the time of the offense, is sufficient to support the trial court's judgment. Thus, this cause can be remanded for retrial without offending the protections afforded by the Double Jeopardy Clause. 3 Seg, eg., Browning v. State, 775 N.E.2d 1222, 1226 (Ind.Ct.App.2002).
For these reasons, I concur in part and dissent in part with the majority opinion.
. The Pre-Sentence Investigation Report, which was a part of the sentencing record but not a part of the trial record, indicates that Serrano was not eighteen years old at the time of the offense. If that representation is accurate, Serrano clearly has a basis for a motion to dismiss the information if the State chooses to refile the charges.