Charles P. White v. State of Indiana
2014 Ind. App. LEXIS 637
| Ind. Ct. App. | 2014Background
- Charles P. White, a Fishers Town Council member and 2010 successful Republican candidate for Indiana Secretary of State, was indicted on seven felonies arising from competing claims about his residence (Broad Leaf Lane vs. Overview Drive), voter registration, voting in the May 2010 primary, mortgage/loan documents, a marriage-license application, and receipt of town-council pay while allegedly living outside his district.
- Evidence included lease/purchase and mortgage documents for Overview Drive, utility records, voter-registration change form listing Broad Leaf, voting records showing he voted using Broad Leaf, a marriage-license application listing Broad Leaf as residence, cell‑tower call-detail records, media statements, and that White quitclaimed Broad Leaf to his ex-wife after divorce.
- Trial counsel Carl Brizzi rested the defense after the State’s case without calling White or other proffered witnesses because of perceived credibility risks; the jury convicted White on six counts (acquitted on one) and the trial court imposed one year of electronic home monitoring (stayed pending appeal).
- White used the Davis‑Hatton procedure to pause his direct appeal to pursue post‑conviction relief alleging ineffective assistance; the trial court denied relief and the appeals were consolidated.
- The appellate court vacated three convictions (Counts 1, 5, and 6), affirmed the remainder (Counts 2, 4, and 7), and held that trial counsel was not ineffective.
Issues
| Issue | Plaintiff's Argument (White) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Count 6 (perjury re: street address on marriage-license) should have been dismissed for lack of materiality | Street-level address on marriage-license was not material; only county matters for marriage-license eligibility | Statute requires residence information on application; trial court found residence material | Court held street address immaterial (only county matters) → vacated Count 6 conviction; remanded to vacate |
| Whether Count 7 (theft for receiving council pay after ceasing residency) should be dismissed | White argued he retained office under "hold-over" principles and thus was entitled to pay | State relied on statutes forfeiting office when member ceases residence and noted town procedures to declare vacancy would be frustrated by White’s concealment | Court held White forfeited office when he moved and concealment prevented town from invoking vacancy process → denial of motion to dismiss affirmed; theft conviction upheld |
| Sufficiency of evidence for Count 2 (perjury on voter‑registration change form) | (Argued insufficiency) | State presented mortgage/closing, occupancy statements, homestead request, utilities, cell records, media statements, voting and candidate filings showing Overview as residence | Court found substantial evidence supports jury inference that Broad Leaf was not White’s residence when he changed registration → conviction affirmed |
| Whether jury instruction on residence was inadequate (failure to include temporary/nontraditional/immediate-family examples) | Instruction should have included statutory examples (temporary, nontraditional, immediate-family) to aid jury | Instruction tracked statutory definition of residence; no evidence supported giving the extra examples | No fundamental error; instruction proper; counsel not ineffective for failing to object or supplement |
| Prosecutorial misconduct (various arguments in opening/closing and use of evidence) | Multiple misconduct instances deprived White of fair trial; argued as fundamental error | State maintained closing and arguments were based on trial evidence; disputed mischaracterizations were supported by record | Court found no prosecutorial misconduct rising to fundamental error; claims waived or lacked prejudice |
| Double jeopardy as to paired counts (1 & 2; 4 & 5) charging same acts twice | Multiple counts punished same conduct (submission of same voter form; voting vs procuring/casting ballot) | State largely conceded overlap at oral argument | Court raised issue sua sponte and found double‑jeopardy violations: vacated Count 1 (duplicate of Count 2) and vacated Count 5 (duplicate of Count 4) |
| Ineffective assistance of counsel (failure to call witnesses, rest without defense, voir dire nullification comments) | Brizzi unreasonably rested, failed to present witnesses and evidence, and injected nullification theme; prejudiced outcome | Brizzi spent extensive time preparing, reasonably changed strategy midtrial because witnesses (e.g., Michelle) showed damaging testimony potential, and the decision to rest was tactical to force State burden | Post‑conviction court’s factual findings supported strategy; White failed Strickland prejudice and performance prongs → counsel not ineffective; PCR denial affirmed |
Key Cases Cited
- Kindred v. State, 973 N.E.2d 1245 (Ind. Ct. App. 2012) (Davis‑Hatton stay/remand procedure described)
- Slusher v. State, 823 N.E.2d 1219 (Ind. Ct. App. 2005) (reinstatement after post‑conviction proceedings explained)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (double‑jeopardy test and related principles)
- Vandivier v. State, 822 N.E.2d 1047 (Ind. Ct. App. 2005) (materiality is element of perjury; court must determine admissibility)
- Walden v. State, 895 N.E.2d 1182 (Ind. 2008) (limits on jury nullification in criminal cases)
- Guyton v. State, 771 N.E.2d 1141 (Ind. 2002) (statutory/common‑law double‑jeopardy doctrine)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective assistance standard)
Summary of disposition: Affirmed in part, reversed in part; convictions on Counts 1, 5, and 6 vacated; remaining convictions (Counts 2, 4, 7) affirmed; post‑conviction claim of ineffective assistance denied.