TheIndianaLawyer.com on 01-09-18 by Olivia Covington
The Indiana Court of Appeals has upheld a man’s battery conviction and probationary prohibition on possession of a firearm, finding the trial court did not err in the process of hearing testimony and imposing a sentence.
In Robert Wilder v. State of Indiana, 49A02-1706-CR-1420, Robert Wilder operated a food truck next to an Indianapolis restaurant known as The Tailgate, owned by Dennis Turpen. One day, Turpen was parked behind his restaurant to unload supplies, creating what Wilder believed to be an obstruction that would prevent his son from driving through a nearby alley.
When Turpen refused Wilder’s command to move his vehicle, Wilder became angry and began a physical altercation that ended with Wilder tackling Turpen and banging his face onto the ground. Wilder fled the scene, but both Turpen and William Camp, a witness, called 911.
Indianapolis Metropolitan Police Department Detective Kevin Duley interviewed Wilder and Camp and eventually submitted the case for prosecution. Wilder was charged with Class A misdemeanor battery resulting in bodily injury, but argued the police had botched the investigation by failing to interview him or his son.
Duley, however, testified for the state that he believed there was sufficient evidence the battery had occurred as Turpen and Camp described it, considering Camp “did not have a dog in the fight.” Wilder was then found guilty as charged and was sentenced to probation. The court also imposed, over Wilder’s objection, a probation condition that prohibited him from possessing a firearm during his one-year probationary period.
Wilder then appealed, arguing first that the Marion Superior Court committed fundamental error by failing to sua sponte exclude Duley’s testimony under Rule of Evidence 704(b). But the Indiana Court of Appeals rejected that argument Tuesday, with Judge Mark Bailey writing that even if Duley’s testimony was an improper legal conclusion, it was admissible because Wilder “opened the door” to that testimony when he challenged the sufficiency of the police investigation.
The appellate court also rejected Wilder’s challenge of the probationary condition prohibiting him from using a firearm, finding the condition did not violate his rights under the Second Amendment or Article 1, Section 32 of the Indiana Constitution. That’s because Wilder’s actions showed a propensity toward violence, the court said, so the state’s goal of preventing him from committing more violence while on probation was furthered by the probation condition.
“Furthermore, the probation officer/probationer relationship is one that can become fraught with tension, as the probation officer has the power to regular the probationer’s behavior in ways that may be unwelcome and the power to seek a revocation of probation that could result in incarceration,” Bailey wrote. “…Decreasing the risk that officers will encounter violent, armed probationers is a significant and legitimate law enforcement need.”