ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Dennis Driggers Jeffrey A. Modisett
Mary Davidsen Attorney General of Indiana
Deputy Attorney General
INDIANA SUPREME COURT
ALFRED NAVARETTA, )
v. ) 29S02-0004-CR-230
STATE OF INDIANA, )
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
The defendant, Alfred Navaretta, was convicted of possession of a narcotic drug, a
class D felony,
See footnote possession of drug paraphernalia, a class A misdemeanor,See footnote and operating
while intoxicated, a class A misdemeanor.See footnote 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 States 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 States evidence, the defendant moved for judgment
on the evidence on grounds that the State failed to prove proper venue.
The defendants 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 defendants 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 defendants 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 defendants trial to occur
in Hamilton County or Marion County. The trial court did not error
in denying the defendants 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.
Ind. Code § 35-48-4-6.
Ind. Code § 35-48-4-8.3 (c).
Ind. Code § 9-30-5-2.