24 March 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In doing research I often come across a tid-bit of information that is not what I was seeking but is serendipitous. Such is the case with the appeal of a criminal conviction and the guidance provided by the Indiana Court of Appeals when it comes to effective representation. The case I review today clearly demonstrates that it is imperative that when seeking legal counsel to represent you that you understand the dynamics of the representation.
In child custody cases I feel that attorney and counsel selection is more significant than parental actions. This is why I have repeatedly written about this matter, why I have developed an initial questionnaire for prospective attorneys and why I implore parents to have me conduct attorney interviews.
This point is so important that I want to stress it again. The counsel you get and the subsequent progression of your case is more important than the actions that either you or the other parent have undertaken. Once you enter the realm of the courts you are subject to a litany of rules and procedures. If allowed, almost as by design, the cases progress unbearably slow. It has not been unusual for me to be involved in cases than proceed for three years on one motion including appeals. Which brings me back to the crux of today's issue - an appeal.
In Jason Frye vs State of Indiana, Frye appealed his conviction in Clinton Circuit Court of six counts of Class D felony possession of child pornography. Frye raised the following issues as error:
I. Whether the trial court abused its discretion in admitting four-inch by six inch prints of photographs recovered from Frye’s cell phone with a 3.2-inch screen;
II. Whether the trial court abused its discretion in admitting evidence of Frye’s battery of his girlfriend;
III. Whether the trial court abused its discretion in admitting evidence of Frye’s failure to pay child support;
IV. Whether the State presented sufficient evidence to support Frye’s conviction; and
V. Whether the trial court properly instructed the jury on its duty to reconcile evidence based on a presumption of innocence.
I have provided a link to the decision so you can read just how illogical Jason Frye actually is and the numerous opportunities to avoid conviction which he simply threw away by committing additional moronic acts. More to the point of attorney selection though is the ability of an attorney to do what the lay person lacks the propensity to navigate with ease – the court rules. Frye's first point of contention – the size of the photos – was addressed in his brief by stating:
By the State adding size to the pictures, they distorted the original product and presented a fabricated version of the evidence to the jury. Larger pictures of any type of pornography have the ability to invoke more stimulus, sexual arousal and desires from any one person. These larger photos were improperly given to the jury for them to decide if they meet the statutory definition of child pornography and sexual conduct.
I agree with Frye on this contention although I don't think it affects the underlying nature of the offense as the images were not distorted. The appellate panel wouldn't typically get an opportunity to opine because of Frye's rule violation. However, as the court stated it chose to decide on the merits anyway:
First, we note that Frye fails to provide any statement of the applicable standard of review. Therefore, Frye has waived this argument on appeal. See Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001) (noting that failure to comply with Indiana Code Appellate Rule 46(A)(8)(b), which requires that an appellant’s brief include a statement of the applicable standard of review for each issue, results in waiver of that issue for appellate review). In his reply brief, Frye incorrectly characterizes the standard of review for rulings on the admission of evidence as de novo. Waiver notwithstanding, we disagree with Frye’s assertion that the trial court erred in admitting the enlarged prints of the photographs.
Frye next challenges the trial court's admission of evidence of his battery on the girlfriend. The panel wrote:
A claim that the trial court abused its discretion in admitting evidence may be presented on appeal only where there is a timely trial objection stating the specific ground of objection. Ind. Evidence Rule 103(a)(1). By failing to object to the evidence now challenged, Frye denied the trial court the opportunity to make a final ruling on the matter in the context in which the evidence was introduced. Consequently, Frye has failed to preserve the right to claim evidentiary error on appeal. See Raess v. Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008).
We further note that Frye has again failed to provide a statement of the standard of review, thus waiving this argument on appeal. In his reply brief, Frye incorrectly designates the standard of review as “plain error.”
In reading the opinion one learns that the battery was a result of the girlfriend purportedly planning to contact the police and provide the cell-phone as evidence to them from which Frye then allegedly committed battery upon her. Thus, it is without doubt that it is admissible evidence. Contrarily Frye next asserts that the court erred by admitting evidence of his failure to pay child support which has absolutely nothing to do with the underlying charge. This demonstrates not only the ethical shortcoming of the prosecutor but a poor decision which opens the case to attack on appeal and may evoke sympathy from the jurors. The appellate panel opined that it was an error for the court to admit that evidence but given the totality of the evidence presented that this amounted to harmless error.
Frye's fourth argument is that the jury reached a verdict that was not supported by the evidence. He claimed:
The jury improperly came to the conclusion that the pictures found on the Defendant’s phone met the criteria for child pornography through depiction of sexual conduct. Therefore, the Trial Court’s decision should be reversed as the photographs on the Defendant’s phone are not child pornography as prescribed by I.C. § 35-42-4-4.
Once again though Frye failed to provide any statement setting forth the appropriate standard of review and cited to no relevant legal authority. The panel therefore ruled that pursuant to Indiana Appellate Rule 46(A)(8), Frye had waived this argument on appeal. See Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999) (providing that failure to support each contention with citation to relevant legal authority results in waiver of that issue on appeal); see also Jackson v. State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001). Regardless, the argument was without merit. Ind. Code § 35-42-4-4(a)(4) provides that photography which depicts “exhibition of the uncovered genitals or female breast with less than a fully opaque covering of any part of the nipple”
The funniest part of this contention is the panel's reaction to Frye's legal theories. They first say “Frye inexplicably frames this argument as an admission of evidence issue and names the standard of review as de novo.” Next, the caselaw that he cited, Delagrange v. State, 981 N.E.2d 1227 (Ind. Ct. App. 2013), was transferred to the Indiana Supreme Court prior to the filing of his brief and thus it had been vacated and therefore was no longer legal authority. They close this argument with “We admonish counsel to correctly indicate the procedural status of all cited cases.”
Finally, in a 'where-were-you' crescendo to this ridiculous appeal was the jury instructions argument. Frye argued that the trial court erred by refusing to deliver the following jury instruction tendered by his counsel:
If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the Defendant, and the other to his innocence, it is your duty, under the law to adopt that interpretation which is consistent with the Defendant’s innocence, and reject that which points to his guilt.
This instruction is spot on. In fact, there is caselaw based on the rule of lenity that says if there are two varying interpretations and one points to not guilty then that is the position that must be applied to the defendant. Clearly the trial court should have tendered this instruction to the jury. But in a final humiliating blow to Frye's attorney Thomas F. Little of Power, Little, Little, & Little in Frankfort, Indiana the panel concluded:
A reading of the transcript of the trial court proceedings, however, indicates that the trial court did in fact deliver the instruction requested by Frye, with no material variation, and nearly word for word. Therefore, Frye’s argument concerning the instruction at issue is moot.
The primary role of the attorney is to deliver the case to the trial court, or as in this case the appellate court, consistent with the rules of the court. It is not a difficult task. I do it regularly and proficiently with no law school training and not having passed the bar exam. Secondary to presentation of the case is development of the case and formulation of the evidence consistent with sound legal theory. Finally, there is the realm in which I provide the greatest assistance which is finessing the client into focusing attention on the children, harmonizing all aspects of life with the custody litigation, maintaining composure and being best prepared for a court appearance. Additionally, I also work with attorneys on formulating the issues, developing strategy, writing pleadings, and coordinating presentation of evidence. As you can see from this case all of the preparations and finessing in the world are for naught with an attorney who doesn't make proper objections at trial, can't even identify the appropriate standard of review, and argues an issue that is moot.
If you want to have a successful resolution to your child custody case while using an attorney then you best make sure that you trust that attorney to have the care for, dedication to, and necessary skills to advocate for your child. As you see from the appellate panel's opinion they attribute everything to Frye, not Mr. Little. This is because when you retain an attorney to represent you then your voice is gone and your attorney now speaks for you.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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