Marchand v. State
| Decision Date | 24 May 1982 |
| Docket Number | No. 3-1081A274,3-1081A274 |
| Citation | 435 N.E.2d 284 |
| Parties | Raymond R. MARCHAND, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
E. Nelson Chipman, Jr., Chipman, Humphrey & Chipman, Plymouth, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Raymond and Christina Marchand were married in 1970 and finally established residency in Nebraska. Four children were born of their marriage. On September 22, 1977 Christina and Raymond were granted a divorce by a Nebraska court. In the decree, Christina was granted custody of the children. On October 22, 1977 Christina and the children, with the permission of the Nebraska court, moved to Argos, Indiana. Subsequently, Raymond moved to Indiana to enable him to visit with his children.
In September of 1978 Raymond went to Argos to visit the children but found that the family had moved. He searched for the children through various school systems. In January of 1979 Raymond returned to Nebraska and petitioned the court which had granted their divorce for modification of the original divorce decree seeking a change of custody. A hearing was held, at which Christina was represented by counsel, and the petition was granted naming Raymond as the custodial parent.
Raymond was notified by the Argos school system that his children's records had been sent to Kentland, Indiana. He went to Kentland and found his four children, another child, two adults, and a dog living in a single motel room. Raymond went to the local law enforcement authorities. Temporary custody was awarded to Raymond. The Newton County Welfare Department and the Marshall County Welfare Department became involved and the children were made wards of the Newton County Circuit Court.
On October 24, 1979 the wardship was terminated and custody of the children was awarded to Christina. Raymond was present at the hearing but did not mention his Nebraska custody order. The Newton County custody determination was made after home studies of both parents had been conducted. Christina and the children once again established their residency in Argos and Raymond regularly exercised his right to visitation.
On January 6, 1980 Raymond picked up the four children for his regular visitation. The next day a friend of Raymond's returned three of the children to Christina. Raymond had taken the other child and returned to Nebraska. Raymond retained custody of the child in Nebraska until October 26, 1980, when the child was returned to Christina.
Raymond was convicted by a jury of criminal confinement, a Class D felony, and received a two year sentence, all of which was suspended except 180 days. Additionally, he was placed on probation for two years from the date of his release and fined $100 plus costs. As a condition of the probation, he is not to remove the children from the State of Indiana.
At trial, the state made a motion in limine, which was granted, requesting that counsel for Raymond refrain from mentioning any custody orders made by any courts prior to the custody order of the Newton Circuit Court dated October 22, 1979 for the reason that any prior order is irrelevant, immaterial and is res judicata. During trial, counsel for Raymond made an offer to prove and requested that the trial court allow the evidence of the Nebraska custody order to be presented to the jury. The trial court denied Raymond's request.
On appeal Raymond alleges that the trial court erred in refusing to allow him to admit the Nebraska custody order to show a lack of criminal intent.
Criminal confinement is defined as occurring when a person knowingly or intentionally removes another person, who is under eighteen years of age, to a place outside Indiana when the removal violates a child custody order of a court. 1 Raymond argues that because he was awarded custody of the children by the Nebraska court, he did not "knowingly" or "intentionally" violate the Newton County custody order.
At the outset it should be noted that admissibility of marginally relevant evidence is within the sound discretion of the trial court. English Coal Co., Inc. v. Durcholz (1981), Ind.App., 422 N.E.2d 302. Raymond has the burden of showing that the trial court abused its discretion in this instance.
The evidence is clear that Raymond knew of the Newton County custody order. He was a party at the hearing and the order of that court clearly states that custody of the wards shall be with their mother. Furthermore, Raymond testified at his criminal trial that he knew the Newton County court awarded his ex-wife custody of the children.
The criminal confinement statute is designed to proscribe self-help by unhappy non-custodial parents, which is exactly what happened in this instance. Raymond testified that he took the child to Nebraska because the children had been telling him the family was going to move again. Raymond did not challenge the Newton County custody order. He could have appealed that order or at least given evidence of his...
To continue reading
Request your trial
-
Bieghler v. State
... ... Even if offered evidence or testimony is only marginally relevant, it is within the sound discretion of the trial court to determine its admissibility. Henderson v. State, (1983) Ind., 455 N.E.2d 1117; Marchand ... v. State, (1982) Ind.App., 435 N.E.2d 284, reh. denied. Evidence is relevant when it throws or tends to throw light on the guilt or innocence of an accused even though its tendency to do so is slight. Grimes, supra. Admission of physical evidence is governed by the same rules of ... ...
-
Wallace v. State
...sound discretion of the trial court to determine its admissibility. Chittenden v. State (1982), Ind., 436 N.E.2d 86; Marchand v. State (1982), Ind.App., 435 N.E.2d 284, reh. denied. Defendant fails to demonstrate the relevancy of his request of these questions to the determination of guilt ......
-
Newton v. State
...of a statute defining a crime must be made by written motion to dismiss filed prior to the arraignment and plea. Marchand v. State, (1982) Ind.App., 435 N.E.2d 284; Salrin v. State, (1981) Ind.App., 419 N.E.2d 1351. Newton first raised the issue of constitutionality in his appellate brief. ......
-
Brown v. State
...v. State, 727 N.E.2d 1, 5 (Ind.Ct. App.2000), trans. denied; Newton v. State, 456 N.E.2d 736, 739 (Ind.Ct.App.1983); Marchand v. State, 435 N.E.2d 284, 287 (Ind.Ct.App.1982); Salrin v. State, 419 N.E.2d 1351, 1354 (Ind.Ct.App.1981). In other cases, both this Court and our supreme court have......