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By STUART CASSIDY
ROCKPORT – A state appeals court has upheld a 30-year conviction against Jane Kleaving.
She was convicted and sentenced last summer of conspiracy to commit murder.
Kleaving, formerly of Tell City, was arrested Nov. 11, 2011, near Troy after allegedly conspiring to have an Owensboro man killed. Indiana State Police initiated a criminal investigation after receiving information that she was attempting to hire a hit man to kill her granddaughter’s father, Kyle McPherson.
According to a probable-cause affidavit for arrest, McPherson was involved in a custody battle over the child and had been accused by Kleaving of physically and sexually abusing the girl.
In their initial case, the defense claimed Kleaving was enticed by several acquaintances, including a psychic and a private investigator, to seek out someone to kill McPherson. Kleaving’s attorney argued that the arrest was part of a conspiracy set up by state police to entrap her.
On appeal, Kleaving’s defense attorneys questioned whether the state provided sufficient evidence to convict, argued that the court erred by excluding evidence that Kleaving suffered from diminished mental capacity and felt the 30-year sentence was improper.
In claiming the court provided insufficient evidence, the defense tried to show that Kleaving was urged and lured by others to hire someone to kill McPherson and that police “fueled and encouraged her fear” and worked to entrap her.
However the appeals court disagreed and found the evidence supported a guilty verdict because Kleaving “was not induced into this conspiracy to commit murder and that she was predisposed to do so.”
The judge found police involvement afforded an opportunity to commit the crime and did not constitute conspiracy.
The appeals court also upheld the lower court’s decision to exclude a doctor’s report and testimony describing Kleaving’s mental state and ongoing psychological issues. According to a memorandum decision filed with the state appeals court, on appeal, the higher court, by policy, will not reverse a trial court’s ruling unless they find an “abuse of discretion” and when the “decision is clearly against the logic and effect of the facts.”
The judge also found that since the defense did not attempt to enter the evidence during the trial, they waived the right to enter it on appeal.
Kleaving challenged the sentence on several grounds, including a failure of the trial court to enter a sentencing statement that should have included a reason for imposing the duration of incarceration, a failure to consider mitigating factors for undue hardships on the Kleaving family for an extensive prison term and that the sentence was inappropriate due to the nature of the offense based on Kleaving’s personal character.
The defense hoped the appeals court would revise the sentence, suspend part of it and allow the convicted woman to serve the remaining time through a community-corrections program. They argued that no actual harm had occurred.
Again the appellate court ruled against the defense on all counts and upheld the trial court’s ruling.
The appeals judge found the sentence appropriate based on evidence that Kleaving had acted upon a plan to eliminate McPherson, including purchasing pre-paid cell phones, sought to hire a hit man, secured money to pay for the killing and suggested a location for the body to be disposed of.
The judge further concluded that Kleaving showed no remorse for her actions and her plot to have McPherson murdered constituted a threat to society.