ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Dennis Driggers Jeffrey A. Modisett
Mary Davidsen Attorney General of Indiana
Noblesville, Indiana
Rosemary Borek
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
ALFRED NAVARETTA, )
Defendant-Appellant, )
)
v. ) 29S02-0004-CR-230
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
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APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Wayne A. Sturtevant, Judge
Cause No. 29D05-9709-DF-3515
_________________________________________________
On Petition To Transfer
April 3, 2000
DICKSON, Justice
The defendant, Alfred Navaretta, was convicted of possession of a
narcotic drug, a class D felony,[1] possession of drug paraphernalia, a
class A misdemeanor,[2] and operating while intoxicated, a class A
misdemeanor.[3] In this appeal, the defendant asserts that the State
failed to prove venue and that the trial court thus erred in denying his
motion for judgment on the evidence and his request to transfer to the
county where the offenses occurred. The Court of Appeals reversed the
convictions. Navaretta v. State, 699 N.E.2d 1207 (Ind. Ct. App. 1998). We
grant the State’s petition for transfer.
The defendant was tried in Hamilton County for criminal conduct
committed on 96th Street, the dividing line between Marion County and
Hamilton County. Just before the presentation of evidence, the defendant
orally moved for dismissal alleging improper venue. At the close of the
State’s evidence, the defendant moved for judgment on the evidence on
grounds that the State failed to prove proper venue. The defendant’s sole
witness was the Hamilton County Surveyor. At the close of the evidence,
the defendant asked the trial court to transfer the case to the county
where the crimes occurred. The trial court denied the defendant’s motions.
Evidence regarding venue was presented, and the jury received final
instructions on the issue of venue. The issue was thus fully presented to
the court and jury.
When a denial of a motion for judgment on the evidence is reviewed on
appeal, the standard is the same as that governing the trial court: a
judgment on the evidence is proper only when all or some of the issues are
not supported by sufficient evidence. Kirchoff v. Selby, 703 N.E.2d 644,
648 (Ind. 1998). A court should consider only the evidence and reasonable
inferences most favorable to the non-moving party and grant the motion only
if there is no substantial evidence supporting an essential issue in the
case. Id.
The evidence is that the defendant was driving his automobile
eastbound along West 96th Street when a Hamilton County Deputy Sheriff,
driving westbound on 96th Street, observed that the headlights of the
oncoming car were abnormally dim. The Deputy made a U-turn and followed
the vehicle, which sped up, then made a right turn into a residential area,
and soon crashed into a fence. The Deputy, finding drugs and
paraphernalia, arrested the defendant, who was driving the car. The
parties agree that the defendant, when first observed by the Deputy
Sheriff, was traveling eastbound on the south side of the 96th Street
centerline, east of Shelbourne Road, that he did not cross the centerline,
but that, shortly thereafter, he turned right into Sandpiper Road, crashed
his vehicle, and was arrested in Marion County. The Hamilton County
Surveyor testified that the line dividing Hamilton and Marion counties at
this point lies along the centerline of 96th Street, with a margin of error
of two feet. At the time of the offense, 96th Street was a two lane
street, with one lane eastbound and one westbound. The Surveyor
acknowledged that it could not be determined whether a car traveling
entirely in the eastbound lane on 96th Street might nevertheless extend two
feet into Hamilton County. Record at 671. The Deputy Sheriff did not
recall noticing the distance between the defendant’s vehicle and the center
line.
Criminal actions must be tried in the county where the offense was
committed, unless otherwise provided by law. Ind. Code § 35-32-2-1;
Kindred v. State, 540 N.E.2d 1161, 1167 (Ind. 1989). “If an offense is
committed at a place which is on or near a common boundary which is shared
by two or more counties and it cannot be readily determined where the
offense was committed, then the trial may be had in any county sharing the
common boundary.” Ind. Code § 35-32-2-1(h).
Because the record contains evidence that the southern border of
Hamilton County may extend up to two feet south of the centerline of 96th
Street, which had one eastbound and one westbound lane at the time, we find
that substantial evidence was presented to establish that it cannot be
readily determined in which county the offense was committed, thus
permitting the defendant’s trial to occur in Hamilton County or Marion
County. The trial court did not error in denying the defendant’s motion
for judgment on the evidence or his request to transfer to Marion County.
Transfer is granted. The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind. Code § 35-48-4-6.
[2] Ind. Code § 35-48-4-8.3 (c).
[3] Ind. Code § 9-30-5-2.