02 murder conviction overturned on appeal — (The Fort Wayne Journal Gazette)

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The Fort Wayne Journal Gazette

By Niki Kelly, the Journal Gazette

Leesburg shooting case sent back to Kosciusko

INDIANAPOLIS  The Indiana Court of Appeals on Wednesday reversed a Leesburg man’s murder conviction in the 2002 killing of his ex-wife’s new husband on the basis of faulty instructions to the jury.

Jason Paul Davidson, 35, was sentenced to 55 years in prison in October 2003.

But the appellate court – in an opinion written by Appeals Court Judge Paul Mathias, a former Allen Superior Court judge – said the court committed reversible error in not accepting a proposed jury instruction from Davidson’s attorney.

Davidson shot Samuel Creekmore five times the night of May 2, 2002. Creekmore was married to Davidson’s ex-wife, Alicia Davidson, who began an Internet affair with Creekmore – a soldier stationed in Hawaii – while still married to Davidson.

Shortly after divorcing Davidson, she married Creekmore but continued having sexual relations with Davidson.

According to court records, Davidson called his ex-wife on his cell phone after an earlier encounter with her the night of the killing and asked what Creekmore was doing. She said he had gone downstairs. Davidson said “hang on for a second” after which the woman heard gunshots.

She ran downstairs and saw Davidson holding a gun and Creekmore lying on the floor.

During trial, Davidson’s defense argued a combination of factors caused him to involuntarily shoot Creekmore.

Wednesday’s decision said in most cases there is no issue of whether someone acted voluntarily in committing a crime, but when evidence raises the issue of voluntariness the state must prove beyond a reasonable doubt that the defendant acted voluntarily.

At trial, Davidson’s attorneys said a combination of Zoloft and Ambien caused him not to appreciate his conduct as wrong and that he was in a “disassociative state” and “neuro-hijacked” to act without thinking.

But when Davidson sought a jury instruction requiring the jury to specifically find he acted voluntarily in killing Creekmore, the judge rejected it.

“Defendants have a constitutional guarantee to have every element of their offense proved beyond a reasonable doubt by the state,” the ruling said.

“The principle is so essential to our system of justice it is referred to as the fundamental principle.”

The decision sends the case back to Kosciusko County for a new trial, while noting that a new jury is free to reject Davidson’s claim that he acted involuntarily.

The Kosciusko County prosecutor originally recused himself from the case, and John Whiteleather and Matt Rentschler were named special prosecutors.

They would make any decision on whether to retry Davidson, but Rentschler said Wednesday he had not yet seen the opinion and couldn’t comment.

Attempts to reach family members for Creekmore and Davidson were not successful Wednesday.