State v. Evans

790 N.E.2d 558, 2003 Ind. App. LEXIS 1110, 2003 WL 21463947
CourtIndiana Court of Appeals
DecidedJune 25, 2003
Docket05A02-0210-CV-875
StatusPublished
Cited by5 cases

This text of 790 N.E.2d 558 (State v. Evans) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Evans, 790 N.E.2d 558, 2003 Ind. App. LEXIS 1110, 2003 WL 21463947 (Ind. Ct. App. 2003).

Opinions

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

The State of Indiana, by the Attorney General Of Indiana, (collectively “State”), brings this interlocutory appeal from a trial court ruling that' ordered the Attorney General to provide counsel for T. Eric Evans in a civil action initiated by the State alleging that Evans misappropriated public funds while an elected prosecutor for Blackford County, Indiana.

We affirm.

ISSUE

Whether the trial court erred by determining that the relevant statutes require the Attorney General to provide counsel for Evans.

FACTS

Evans was the elected prosecutor in Blackford County from November 20, 1992 through December 31, 1998. On February 12, 2002, the Attorney General on behalf of the State of Indiana, filed a complaint against Evans and Western Surety Company to recover public funds “which were found to be misappropriated, diverted or unaccounted for by an examination of the books, accounts and records of the Office of the Prosecutor, Blackford County, Indiana by the State Board of Accounts.” (Appellant’s App. 8). The audit covered the period from January 1, 1993 through December 31, 1998. In pertinent part, the complaint alleged:

4. T. Eric Evans was an employee of the Office of the Prosecutor, Blackford County, Indiana, during ■ the period of [559]*559the loss and had a duty to properly account for and deposit all funds of the Office of the Prosecutor, Blackford County, Indiana which came into his possession and assure that the funds of the Office of the Prosecutor, Blackford County, Indiana were only expended as authorized by law and commit no acts of misfeasance, malfeasance or nonfeasance in management of said funds.
5. That during the audit period, T. Eric Evans, wrongfully or negligently failed to properly account for, expend and deposit the funds of the Office of the Pro-secut[or], Blackford County, Indiana or otherwise committed several acts of misfeasance, malfeasance and nonfeasance which acts resulted in the misappropriation, diversion and misapplication of public funds.
6. As a direct and proximate result of the actions of T. Eric Evans, he is indebted to the State of Indiana and the Office of the Prosecutor, Blackford County, Indiana in the amount [of] Sixteen Thousand Two Hundred Eighteen Dollars ($16,218.00).
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COUNT II
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10. That Plaintiff, State of Indiana, is a party suffering a pecuniary loss as a result of a violation by Defendant T. Eric Evans, of one or more of the following I.C. 35-43-4-2 [theft], I.C. 35-43-4-3 [criminal conversion] or I.C. 35-43-5-3 [deception], which loss consists of the sum of ... ($16, 218.00) and Plaintiff is entitled to recovery of treble damages in the amount of ... ($48,654.00)[ ] plus costs, attorney fees and all other just and proper relief.
11. That Plaintiff, State of Indiana, is a party suffering a pecuniary loss as a result of a breach by Defendant, T. Eric Evans, of his contract and trust, both real and constructive, ... and a violation of the resultant trust imposed on him by law and equity to collect, administer, bank and disburse public funds belonging to the State of Indiana and the Office of the Prosecutor, Blackford County, Indiana.

(Appellant’s App. 9-10). Count III of the complaint alleged that Western Surety Company was liable in the amount of the bond executed for the faithful performance of duties by employees of the Blackford County Prosecutor’s Office in the amount of $15,000.

The audit attached to the complaint stated that Evans “submitted unallowable claims for payment in the amount of $12,985.” (Appellant’s App. Back of Page 16). The claims “were considered unallowable due to the lack of itemization and duplicate payments made; payment of items (including fixed assets) not on hand in the Prosecutor’s office when the current Prosecutor took office on January 1, 1999 and inappropriate and personal-type disbursements.” (Appellant’s App. 16). The cost of the audit, $3,233, was included within the $16,218 requested in the complaint. Also attached to the complaint, within the audit report, was Evans’ 14-page response to the allegations.

On March 5, 2002, acting pro se, Evans moved for an extension of time to answer the complaint noting that, pursuant to statute, he had requested that the Attorney General provide him with counsel. After initially requesting an extension of time, Western Surety, by counsel, filed its answer in April 2002. In its answer, Western Surety, inter alia, asserted affirmative defenses, including 1) that the State was estopped to assent claims due to a lack of documentation where the successor to Evans misplaced or disposed of receipts and documentation upon which the losses were [560]*560based, and 2) that the State’s claims were barred by laches inasmuch as the transactions occurred over a period of time and were not “challenged by the State upon examination” thus allowing “such transactions to continue over time when it had actual and constructive knowledge of the fact that such transactions were taking place.” (Appellant’s App. 48).

In August 2002, Evans filed with the trial court his formal motion for appointment of counsel invoking Indiana Code § 4-6-2-1.5, Indiana Code § 33-2.1-9-1, and Indiana Code § 34-13-3-15. Evans attached an affidavit in support of his motion. In the affidavit, Evans averred:

That these claims were all handled and processed in exactly the same manner, as prescribed by law and as directed by the Auditor of Blackford County and the Commissioners of Blackford County.
That all claims submitted by the affiant were in the ordinary and usual course of business, were advertised as required by law, approved by the Auditor, and approved by the County Commissioners and paid by the Treasurer.
That each and every act of submitting claims for payment by the affiant was within the scope of the duties of the affiant as Prosecutor, as prescribed and required by law and practice, and done in good faith by the affiant in his capacity as Prosecutor.

(Appellant’s App. 63).

After a hearing, the court granted the motion. In pertinent part, the trial court determined:

6.[The State] contends there is no statutory duty to appoint counsel for Defendant, pursuant «%to IC 4-6-2-1, when the State of Indiana is Plaintiff and representing the interests of the State of Indiana.
7. After review of statutes, there is a conflict in the statutes.
8. Pursuant to IC [33—2.1—9—1 (b)].... “the Attorney General shall:
(1)....
(2) authorize the executive Director of the Division of State Court Administration to hire private counsel to provide the defense.”
9. The Attorney General should be directed to comply with the statutory procedure set forth in Indiana Code [33— 2.1—9—1 (b)(2)] within thirty days, giving priority to this case as a consideration in the hiring of private counsel for Defendant Evans.

(Appellant’s App. 69-70).

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Related

State v. Evans
810 N.E.2d 335 (Indiana Supreme Court, 2004)
Williams v. State
798 N.E.2d 457 (Indiana Court of Appeals, 2003)
State v. Evans
790 N.E.2d 558 (Indiana Court of Appeals, 2003)

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Bluebook (online)
790 N.E.2d 558, 2003 Ind. App. LEXIS 1110, 2003 WL 21463947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-evans-indctapp-2003.