Dixey v. State
2011 Ind. App. LEXIS 1887
Ind. Ct. App.2011Background
- Dixey was convicted of theft (class D felony) for tampering with utility equipment to divert electricity and avoid payment.
- Charging information alleged unauthorized control over Vectren’s electricity to deprive it of value, but did not allege the specific device- or scheme-based means required by utility fraud or deception statutes.
- Dixey tendered four jury instructions: three on purported lesser offenses (utility fraud, criminal deception, and criminal conversion as a lesser-included offense) and one on statutory construction; the court instructed only on criminal conversion.
- The trial court barred Dixey from mentioning the other proposed offenses in closing argument; Dixey sought to argue the State failed to prove theft but that a lesser offense might apply.
- A two-day jury trial occurred in February 2011; after verdict Dixey was sentenced to one year, to be served consecutively to another sentence; appellate reversal was sought for a new trial.
- On appeal, the Indiana Court of Appeals reversed and remanded for a new trial, finding error in the closing-argument restriction and in the inability to argue relevant lesser offenses or statutory interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are utility fraud and criminal deception factually included lesser offenses of theft? | State: charging info does not allege device/scheme means; these offenses are not factually included. | Dixey: the facts fit the lesser offenses under the statutes and the information. | No; not factually included; trial court did not err in not giving those instructions. |
| Was Dixey entitled to a statutory-construction instruction? | State: no error; instruction not correct law to include general-vs-specific rule. | Dixey: proper rule supports his argument that specific statute prevails. | No; Skinner controls; instruction not a correct statement of law. |
| Did the trial court's closing-argument restriction prejudice Dixey? | State: closing argument discretion; no prejudice shown. | Dixey: exclusion of discussing lesser offenses limited defense theory; prejudicial. | Yes; reversal and new trial required due to prejudice from closing-argument restriction. |
Key Cases Cited
- Aguilar v. State, 811 N.E.2d 476 (Ind.Ct.App. 2004) (standard for abuse-of-discretion review in jury instructions)
- Wright v. State, 658 N.E.2d 563 (Ind.1995) (factually included lesser offenses via charging information)
- Skinner v. State, 732 N.E.2d 235 (Ind.Ct.App.2000) (specific-vs-general statute rule not mandated; check fraud not required to be charged as check fraud)
- Taylor v. State, 457 N.E.2d 594 (Ind.Ct.App.1983) (closing-argument restrictions may be permissible if not prejudicial; examples of aiding jury understanding of law)
- Sylvester v. State, 698 N.E.2d 1126 (Ind.1998) (standards for evaluating tendered instructions and supporting evidence)