dissenting.
In this case, Joyce Beyers, who could not swim, fell from a boat into ice cold water and drowned. At the time, she and appellant were alone in the boat and it was dusk. Bonnie and Kenneth Meeks, who live near the water's edge, were gardening at the time, and they heard a woman's shrill voice scream three times, followed by a man's voice in despair. They then noticed a boat with a spotlight apparently searching for something in the water and called the sheriff. The body of Beyers was recovered later. Her clothing was neat and not in disarray. An autopsy revealed two deep bruises on the back of head, ten to twelve hours old, which extended down to the cranial linings, multiple fresh bruising on her right arm and leg, very little fluid in the lungs, and a BAC of .06. Pathologist Pless opined that the bruises were caused by a blunt force, which could have caused unconsciousness or death and which could have been inflicted in or out of the water or before or after unconsciousness. The State correctly concedes that reasonable persons will differ with respect to whether this proves appellant's guilt or not. In light of the close nature of this case, I would remand for a new trial on the basis of error in admitting the ex parte temporary protective order and on the claim of newly discovered evidence.
The ex parte temporary protective order stated:
You are hereby notified that Plaintiff herein, Joyce Beyers has filed with this Court her Petition for Temporary Protective Order and that said Petition was granted on an emergency basis....
1 believe the jury would receive this exhibit as the belief and opinion of a judge that appellant had in fact engaged in threats and violence against Joyce Beyers and that such misconduct on the part of appellant was so severe as to create an emergency situation. Because the order was not issued upon satisfactory proof of such misconduct, it should be inadmissible as hollow and essentially irrelevant and prejudicial. United States v. Byrd 7th Cir., 771 F.2d 215 (1985).
In support of the motion to correct errors, the son of appellant and Joyce Beyers has made an affidavit that on the morning before the drowning, he heard a loud noise coming from the garage. He ran out and found his mother holding the back of her head. She stated that she had fallen while attempting to put the doors on a jeep and struck the back of her head and that she needed to sit a little. He further stated in the affidavit that he had not learned about the entire nature of the injuries sustained by his mother including the fact that there were large unexplained bruises about the back of her head until after the trial. An affidavit of one Ray Davis, who was a boater on the water at the time of the drowning and who did not learn of the criminal investigation until the day after the jury returned its verdict, provides his statement that he "observed a person exit from the back of the boat. I thought they were playing around or just having fun." When these sworn statements are considered in conjunction with appellant's own statement that he was in the front of the boat when he heard her call, and in light of the testimony of the Meekses that they heard her seream three times, the defense position that she fell out of the boat by accident is substantially enhanced, and in light of the closeness of the case on the facts, a matter conceded by the State, the legal criteria, including the probability of acquittal upon retrial with this newly discovered evidence, are satisfied. Emerson v. State (1972), 259 Ind. 399, 287 N.E.2d 867.
DICKSON, J., concurs.