James Merket v. State of Indiana (NFP)

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FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Oct 21 2010, 9:02 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JANE H. CONLEY GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana JAMES E. PORTER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA JAMES MERKET, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-1003-CR-331 APPEAL FROM THE MARION SUPERIOR COURT The Honorable James B. Osborn, Judge Cause No. 49F15-0812-FD-289169 October 21, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge James Merket was convicted of Impersonation of a Public Servant, as a Class D felony.1 He appealed, claiming that there was insufficient evidence to support his conviction and that he was entitled to a mistrial after a witness for the State alluded to Merket s past conviction for the same offense. On October 1, 2010, Merket died. Indiana Appellate Rule 17(B), effective January 1, 2001, provides in relevant part: The death of the appellant abates a criminal appeal. Prior to the enactment of the foregoing provision, our Indiana Supreme Court had set forth the reasons supporting its policy of dismissal of a criminal appeal upon the death of the appellant: [a]s a result of the death of appellant herein this cause has become moot for the following reasons: (1) In event the judgment of the trial court were sustained the judgment would be impossible of execution, and (2) in event of reversal of said judgment the within named party would not be available for trial. Raymond v. State, 246 Ind. 422, 423, 206 N.E.2d 139, 139 (1965). Accordingly, [i]t follows that no state interest can be served by proceeding. Whitehouse v. State, 266 Ind. 527, 529, 364 N.E.2d 1015, 1016 (1977). Likewise, a reversal cannot benefit the defendant, inasmuch as the presumption of innocence has fall[en] with a guilty verdict. Id. The appeal is ordered dismissed. ROBB, J., and BROWN, J., concur. 1 Ind. Code ยง 35-44-2-3. 2

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