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Redmon v. State9/8/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
Robert L. Redmon appeals his convictions and sentencing for burglary, theft, carrying a handgun without a license, and possession of marijuana. Redmon raises three issues on appeal, which we restate as:
I. Whether the trial court erred by excluding evidence regarding who had legal custody of Redmon at the time of the burglary;
II. Whether two comments by the prosecutor during closing argument infringed on Redmon's right not to testify;
III. Whether the trial court abused its discretion in sentencing Redmon.
We affirm the convictions, but remand with instructions to reduce Redmon's sentence.
Facts and Procedural History
On May 16, 1999, fifteen-year-old Redmon entered the locked home of his mother and step-father ("the Stephensons") while they were vacationing at a local campground. The Stephensons' neighbor observed Redmon and another boy walking across the Stephensons' yard. A short time later, the neighbor heard a loud noise from within the Stephensons' home. He went to his porch and observed Redmon and the other boy coming out of the home. The neighbor then observed Redmon gain entrance to the home a second time after placing a stick through the mail slot at the front door. Redmon and the other boy then left the property on foot.
The neighbor called the police and Redmon was apprehended at a nearby corner. When apprehended, Redmon had a handgun and marijuana on his person. The handgun belonged to Mr. Stephenson, who testified that it had been in a dresser drawer inside his locked bedroom when he left on vacation.
Redmon did not live with the Stephensons on May 16, 1999. Mr. Stephenson testified that Redmon moved out of the Stephensons' home and began living with his father and grandmother in mid-January, 1999. Mr. Stephenson further testified that Redmon was welcome in the house only when the Stephensons were present and that Redmon did not have permission to enter the locked bedroom and take the handgun.
A delinquency petition was filed against Redmon, but he was subsequently waived to adult court and charged with burglary, theft, carrying a handgun without a license, and possession of marijuana. After a jury trial, Redmon was convicted of all counts and sentenced to a total of twenty-one years at the Indiana Department of Correction.
This appeal ensued.
I. Evidence of Legal Custody
Redmon contends that the trial court erroneously prohibited him from presenting evidence that Mrs. Stephenson was his legal custodian at the time of the alleged burglary. Specifically, Redmon argues that Mrs. Stephenson's legal custody of him was relevant to show that Redmon had authority to enter the Stephensons' home.
The trial court has broad discretion in ruling on the admissibility of evidence and in determining its relevancy. Drake v. State, 655 N.E.2d 574, 575 (Ind. Ct. App. 1995) (citing Kremer v. State, 514 N.E.2d 1068, 1073 (Ind. 1987)). Evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ind. Evidence Rule 401; Jackson v. State, 712 N.E.2d 986, 987 (Ind. 1999). All relevant evidence is admissible. Ind. Evidence Rule 402. However, even if the trial court erroneously excludes admissible evidence, we will not reverse a defendant's conviction unless his substantial rights have been affected. Reed v. State, 693 N.E.2d 988, 992 (Ind. Ct. App. 1998).
To prove burglary, the State had to prove that Redmon: 1) knowing
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