FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                            STEPHEN GERALD GRAY
Attorney General of Indiana                   Indianapolis, Indiana



                                                                        FILED
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
                                                                      Jul 30 2012, 9:16 am


                                                                               CLERK
                              IN THE                                         of the supreme court,
                                                                             court of appeals and
                                                                                    tax court


                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                             )
                                              )
       Appellant-Plaintiff,                   )
                                              )
              vs.                             )      No. 29A05-1108-CR-435
                                              )
RAYMOND P. COLEMAN,                           )
                                              )
       Appellee-Defendant.                    )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                          The Honorable Daniel J. Pfleging, Judge
                              Cause No. 29D02-0810-FB-106



                                     July 30, 2012


                              OPINION - FOR PUBLICATION


GARRARD, Senior Judge
       The State moved to dismiss its case against Raymond Coleman after the trial court

declined to find the alleged victim unavailable so as to permit the State to enter her

deposition testimony into evidence. The trial court granted the motion to dismiss, and the

State now appeals the adverse evidentiary ruling. Concluding that the State has no

statutory authorization to bring this appeal, we dismiss.

       In October 2008, the State charged Coleman with two counts of Class B felony

criminal confinement, two counts of Class C felony battery, and one count of Class D

felony pointing a firearm for an alleged incident involving Tanya Pender.

       Coleman served a subpoena on Pender through the State to take a deposition on

November 4, 2010. The State served the subpoena on Pender’s mother’s house. Pender

did not appear for the deposition. The parties agreed that the State would attempt to

locate Pender and that the deposition would be rescheduled.

       About a week before the May 17, 2011 trial date, the State issued a subpoena to

Pender ordering her presence at trial. In addition, the State met with Pender a few days

before the trial date. No deposition was scheduled. When the parties appeared in court

on May 17, 2011, Coleman moved for a continuance so that he could depose Pender and

follow up on any new information she might provide. The trial court granted the motion

over the State’s objection and reset the trial date for August 9, 2011. The same day, the

State gave Pender a subpoena for the new trial date but failed to file a return with the

court. Coleman deposed Pender later that day.

       On August 9, 2011, Pender did not appear for trial. The jury was selected and

sworn, and the parties made opening statements. The State tried to locate Pender for the

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second day of trial but was unsuccessful. On August 10, 2011, when Pender again failed

to appear, the State asked the court to declare Pender unavailable so that it could enter her

deposition testimony into evidence. Coleman objected. After a hearing on the matter,

the court declined to find Pender unavailable and therefore would not allow the State to

submit Pender’s deposition testimony into evidence. After the trial court denied the

State’s motion to reconsider, the State moved to dismiss, which the court granted.

       The State now appeals and asks us to hold that the issuance of a subpoena is not a

necessary prerequisite for a finding of unavailability. Coleman responds that the State

lacks statutory authorization to appeal. In its reply brief, the State says that it may appeal

pursuant to Indiana Code section 35-38-4-2(5) (1983).

       Section 35-38-4-2 governs the authority of the State to appeal in criminal matters:

       Appeals to the supreme court or to the court of appeals, if the court rules so
       provide, may be taken by the state in the following cases:
             (1) From an order granting a motion to dismiss an indictment or
             information.
             (2) From an order or judgment for the defendant, upon his motion
             for discharge because of delay of his trial not caused by his act, or
             upon his plea of former jeopardy, presented and ruled upon prior to
             trial.
             (3) From an order granting a motion to correct errors.
             (4) Upon a question reserved by the state, if the defendant is
             acquitted.
             (5) From an order granting a motion to suppress evidence, if the
             ultimate effect of the order is to preclude further prosecution.
             (6) From any interlocutory order if the trial court certifies and the
             court on appeal or a judge thereof finds on petition that:
                    (A) the appellant will suffer substantial expense, damage, or
                    injury if the order is erroneous and the determination thereof
                    is withheld until after judgment;
                    (B) the order involves a substantial question of law, the early
                    determination of which will promote a more orderly
                    disposition of the case; or

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                      (C) the remedy by appeal after judgment is otherwise
                      inadequate.

The State’s right to appeal in a criminal matter is statutory, and the State cannot appeal

unless given that statutory authorization by the legislature. State v. Brunner, 947 N.E.2d

411, 415 (Ind. 2011). The State’s statutory right of appeal is in contravention of common

law principles and is therefore strictly construed. State v. Pease, 531 N.E.2d 1207, 1208

(Ind. Ct. App. 1988).

       The State contends that the provision governing this appeal is the statutory

authorization to appeal “[f]rom an order granting a motion to suppress evidence, if the

ultimate effect of the order is to preclude further prosecution.” Ind. Code § 35-38-4-2(5).

However, Coleman did not file a motion to suppress evidence. Instead, he objected to

Pender’s deposition testimony in part on the basis that she was not an unavailable

witness. The State nonetheless argues that the ultimate effect of the trial court’s rejection

of its request to declare Pender unavailable was to preclude further prosecution. This

may be so. However, in light of the clear language of the statute, we are not at liberty to

conclude that the legislature has authorized the State to appeal any adverse evidentiary

ruling that deals a fatal blow to the State’s case.

       The State also points to State v. Hobbs, 933 N.E.2d 1281 (Ind. 2010), in support of

its appeal. In that case, the trial court, at an initial hearing, found probable cause for the

defendant’s arrest. The next day, the court sua sponte ruled that there was no probable

cause because the evidence from the defendant’s car had been illegally seized.              It




                                               4
therefore ordered the evidence excluded and the defendant released. The State appealed,

and this Court and then our Supreme Court reviewed the case on its merits.

        We note several distinctions between this case and Hobbs. Initially, we observe

that apparently no question of legal error1 regarding the requisite statutory authorization

was raised in the case, since neither this Court’s decision, State v. Hobbs, 915 N.E.2d 197

(Ind. Ct. App. 2009), trans. granted, nor our Supreme Court’s opinion mention the

State’s right to appeal. Accordingly, any error would be waived.

        Moreover, the Supreme Court apparently treated the issue in Hobbs as a

suppression of the evidence since it began by “review[ing] issues of law incident to

rulings on suppression of evidence.” 933 N.E.2d at 1284. Indeed, the trial court’s action

in excluding the evidence in Hobbs was a suppression of that evidence prior to

commencement of trial.

        Thus, Hobbs is quite unlike the present case where trial commenced, the State

offered the deposition, the defendant objected, and the court simply sustained the

objection. We find that the Supreme Court’s decision in Hobbs is inapposite.

        For the reasons stated, we dismiss the attempted appeal.

        Dismissed.

NAJAM, J., and BRADFORD, J., concur.




1
 See K.S. v. State, 849 N.E.2d 538, 541-42 (Ind. 2006) (discarding the prior concept of jurisdiction of the
particular case).
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