FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER STEPHEN GERALD GRAY

Attorney General of Indiana Indianapolis, Indiana

NICOLE M. SCHUSTER

Deputy Attorney General

Indianapolis, Indiana

IN THE

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
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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 
3

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 
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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 error1regarding 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).