Indiana Criminal Law

Armfield v. State, 29S02-0811-CR-590

12-18-09, Ind.

Attorney: Taffanee Keys

Holding:          Trial court properly denied the Defendant’s motion to suppress. Resolving a split in the appellate courts, Court held that an officer has reasonable suspicion to initiate a Terry stop when: (1) the officer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle. This rule does not require officers to match the physical description of the registered owner from the license plate check to the driver of the vehicle before initiating a Terry stop. To the extent that prior opinions of the Court of Appeals are inconsistent, such as Holly v. State, 888 N.E.2d 338, aff’d on other grounds, and Wilkinson v. State, 743 N.E.2d 1267, the Court disapproves of them. 

            Here, an officer ran a license plate check on Defendant’s vehicle while driving behind him at 12:30 a.m.  The check revealed that the owner of the vehicle had a lifetime license suspension.  It also revealed the name, address and physical description of the owner.  The officer stopped the vehicle.  When he approached the driver, he asked if he was Thomas, to which Defendant responded affirmatively.  Defendant again identified himself as Thomas Armfield and gave his birth date.  The officer had reasonable suspicion to stop the car, and acted properly when he approached the vehicle and verified the name of the driver matched that of the registered owner.  Held, transfer granted, judgment affirmed.

Holly v. State, 49S01-0811-CR-591

12-18-09, Ind.

Attorney: Timothy Burns

Holding:          Trial court erred by denying Defendant’s motion to suppress.  An officer has reasonable suspicion to initiate a Terry stop when: (1) the officer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle.  However, once it becomes apparent that the driver of the vehicle is not the owner, then an officer simply has no reason to conduct additional inquiry.  Reasonable suspicion to pull a car over does not confer unconditional authority to request the driver’s license and registration.  Here, the officer ran a license plate check on the car traveling in front of him and discovered that it was registered to an African-American female who had a suspended license.  The officer did not have a chance to observe the driver before initiating the stop.  However, when the officer approached the driver, he realized the driver was a man and thus not the owner of the car.  Regardless, the officer asked for the driver and the passenger’s identification, and learned that everyone in the car had suspended licenses.  The officer then searched the car and found a small amount of marijuana.  Although the initial stop was justified by reasonable suspicion that the driver was driving while suspended, there is nothing in the record justifying the further inquiry.  The officer had no justification to pursue an investigatory stop that extended to a request to see Defendant’s identification.  Thus, the evidence collected as a result of the stop, including marijuana , was inadmissible under the Fourth Amendment.  Held, transfer granted, Court of Appeals’ opinion at 888 N.E.2d 338 vacated, judgment reversed; Shepard, C.J., dissenting on basis that the officer executed a valid traffic stop and his request for identification was still within the routine procedures of standard stops; Sullivan, J., dissenting on basis that the officer’s check on the status of Defendant’s license constituted a very limited further encroachment upon any privacy interest protected by the Fourth Amendment.

Bowling v. State, 68A05-0906-CR-306

5th Dist., 12-30-09, Ind.App.

Attorney: Dale W. Arnett

Holding:          Under the IAD, a defendant must be brought to trial within 180 days after he has “caused to be delivered” to the prosecutor and the appropriate court written notice of where he is incarcerated and of his request for final disposition of charges.  I.C. 35-33-10-4, Art. 3(a)).  These procedures are not mere technicalities.  State v. Greenwood, 665 N.E.2d 579 (Ind. 1996).  A prisoner’s delivery of IAD materials to prison officials does not constitute proper notice under the IAD.  Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L. Ed. 2d 406 (1993).  “Even if delivery of the notice is delayed due to negligence or malice on the part of prison authorities, the IAD’s clock does not start running until the notice is actually received by both the prosecutor and the court.” U.S. v. Brewington, 512 F.3d 995 (7th Cir. 2008).  

            Here, trial court did not err in denying Defendant’s motion to dismiss pursuant to IAD, because there was no evidence that he delivered speedy trial request to trial court and prosecutor.  Because the 180-day period would not commence until trial court and prosecutor received Bowling’s IAD request, and because neither received such a request, there could not be an IAD violation because the 180-day period never commenced.  Court noted there was no evidence Defendant attempted to confirm that his request had been forwarded to the clerk, trial court, and prosecutor.  Held, judgment affirmed.

Lafayette v. State, 45S03-0904-CR-182

12-08-09, Ind.

Attorney: Mark A. Bates

Holding:          In rape prosecution, trial court erred in admitting testimony about Defendant’s prior attempted rape conviction under the intent exception to Ind. Evidence Rule 404(b), because Defendant did not present a claim of particular contrary intent by claiming intercourse was consensual and by challenging complaining witness’s (CW’s) credibility on the issue of consent.

            Evidence of prior crimes may not be used to prove a defendant’s character in order to show he acted in accord with that character, but such evidence may be admissible for other purposes, such as proving intent.  Ind. Evid. R. 404(b).  However, the intent exception is available only when a defendant goes beyond merely denying the charged culpability and alleges a particular contrary intent.  Wickizer v. State, 626 N.E.2d 795 (Ind. 1993).  Where State establishes that a defendant alleges a particular contrary intent, the evidence is still not admissible until trial court determines that the probative value of the evidence substantially outweighs the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay or needless presentation of cumulative evidence. Id.  The evidence has substantial probative value if it is specifically and significantly related to the charged crime in time, place, and circumstance as to be logically relevant to one of the particular excepted purposes.  Malone v. State, 441 N.E.2d 1339 (Ind. 1982).

            Here, after Defendant cross examined CW, trial court ruled that he opened the door to admission of his attempted rape conviction when he attacked the credibility of CW on the issue of whether the intercourse was consensual. In reversing the trial court, Court held that Defendant’s claim that the intercourse was consensual does not present a claim of particular contrary intent for purposes of the intent exception to Evidence Rule 404(b).  Such a claim actually puts the alleged victim’s intent in issue.  Moreover, a defendant does not put his intent at issue by questioning the alleged victim’s credibility.  A contrary rule would prevent defendants from exercising the right to confront a witness’s credibility.  Held, transfer granted, Court of Appeals’ opinion at 899 N.E.2d 376 vacated, conviction reversed and remanded for new trial.

Kribs v. State, 49A05-0904-CR-225

5th Dist., 12-14-09, Ind.App.

Attorney: Joel M. Schumm

Holding:          State failed to prove beyond a reasonable doubt that Defendant knowingly or intentionally entered a controlled area of an airport with a weapon or explosive, in violation of I.C. 35-47-6-1.3.  Following bench trial that resulted in Defendant’s conviction, trial court stated that it believed Defendant “didn’t remember” that he had the handgun in his possession when he entered the security checkpoint of the airport and that there was no “malicious intent” involved.  Mere forgetfulness does not satisfy knowledge or intent requirement set out by I.C. 35-47-6-1.3.  Held, conviction reversed.

Annis v. State, 76A03-0908-CR-369

3rd Dist., 12-09-09, Ind.App.

Attorney: John Pinnow

Holding:          For purposes of I.C. 9-30-10, a motor vehicle is a vehicle that is self-propelled but the definition does not include a motorized bicycle.  I.C. 9-13-2-105(d).  A motorized bicycle is defined as a vehicle with two or three wheels that is propelled by an internal combustion engine or a battery powered motor, and if powered by an internal combustion engine, has the following:  1) an engine rating of not more than two horsepower and a cylinder capacity not exceeding fifty cubit centimeters; 2) an automatic transmission; 3) a maximum design speed of not more than twenty-five miles per hour on a flat surface. 

            Here, on appeal of his conviction for operating a vehicle with a suspended license, Defendant argued that his scooter qualified as a motorized bicycle rather than a motorized vehicle.  Officer observed Defendant traveling on his scooter at forty-one miles per hour uphill.  Upon inspection, officer observed a displacement number of 149 CC stamped into the vehicle frame of the scooter near the model number and VIN.  Based on this evidence, the scooter was a self-propelled vehicle that was capable of exceeding twenty-five miles per hour on an uphill surface, let alone a flat surface, and had a cylinder capacity greater than fifty cubic centimeters.  Held, judgment affirmed.

Outlaw v. State, 49A02-0904-CR-340

2nd Dist., 12-18-09, Ind.App.

Attorney: Barbara J. Simmons

Holding:          State is required to submit proof of “endangerment” that goes beyond mere intoxication to obtain a conviction for Class A misdemeanor OWI.  I.C. 9-30-5-2(b) requires State to prove beyond a reasonable doubt that Defendant “operate[d] a vehicle while intoxicated…in a manner that endangere[d] a person.”  Here, State failed to present any evidence on the element of endangerment, which is necessary to elevate the conviction from a Class C to a Class A misdemeanor.  The element of endangerment can be established by showing that Defendant’s condition or operating manner could have endangered any person, including the public, the police, or Defendant.  Staley v. State, 895 N.E.2d 1245 (Ind.Ct.App. 2008).  Evidence Defendant was intoxicated cannot prove additional element of endangerment.  Held, conviction reversed.

See also:  Vanderlinden v. State, No. 49A02-0905-CR-417 (Ind.Ct.App. Dec. 18, 2009) (by definition, the current version of Class A misdemeanor OWI statute requires more than intoxication to prove endangerment; here, Defendant’s  excessive speed, regardless of driving conditions or her proximity of others, was sufficient to prove endangerment).

Howell v. State, 49A04-0903-CR-172

4th Dist., 12-09-09, Ind.App.

Attorney: Robert D. King, Jr.

Holding:          Evidence was sufficient to support Defendant’s conviction for obstruction of justice even though the email messages that constituted “false records” for the basis of the charge did not contain false or inaccurate information.  I.C. 35-44-3-4(a)(4) defines obstruction of justice as “mak[ing], present[ing], or us[ing] a false record, document, or thing with the intent that the record, document, or thing, material to the point in question, appear in evidence in an official proceeding or investigation to mislead a public servant.”

            Here, detective posed as a female minor in a Yahoo! chat room using the name “indydiamondgirl08.”  Defendant, using the screen name “john_doe8238” contacted detective’s undercover account and was eventually charged with child solicitation.  A few days after Defendant was released on bond, detective received more emails at indydiamondgirl08 from johndoe_8238 from an account registered to a woman in Great Falls, Montana.  Defendant had given the woman’s daughter, C.C., his screen name and password, asked her to send messages to indydiamondgirl08 and to change his password. C.C. also said she logged on as john_doe8238 only when Defendant specified.  Defendant explained to C. C. that if she did this, it would help his pending criminal case by showing that someone else was using his screen name.

            Although the emails contained no false information in that they were mere inquiries into indydiamondgirl08’s well being or requests to engage in further conversation,  Court found the emails false because C.C., not Defendant, sent the messages.  This made the emails “false records.”

            Court also rejected Defendant’s argument that the evidence was insufficient because:  1) the most recent emails were not introduced as evidence at Defendant’s child solicitation trial and 2) emails were sent not to mislead detective, but to create a defense to the child solicitation charge by showing someone else could have sent the messages.  I.C. 35-44-3-4(a)(4) says obstruction of justice also occurs when a false record appears in an investigation.  Because detective was required to investigate the emails sent after Defendant was arrested for child solicitation, the fact that the emails were not introduced as evidence at the child solicitation trial was inconsequential. Defendant’s argument regarding insufficient intent to mislead was an impermissible request to reweigh the evidence.  Held, judgment affirmed.

Gellenbeck v. State, 79A02-0903-CR-253

2nd Dist., 12-30-09, Ind.App.

Attorney: Bruce W. Graham

Holding:          State presented sufficient evidence for a reasonable jury to conclude that Defendant was complaining witness’s (CW’s) custodian for purposes of child seduction statute.  As used in I.C. 35-42-4-7, “custodian” means any person who resides with a child and is responsible for the child’s welfare.  Here, although CW’s father still retained some authority over her, record contains ample evidence to allow jury to conclude that Defendant, CW’s uncle, was a “custodian” under Indiana’s child seduction statute.  Evidence showed that Defendant and his wife had responsibility for parental tasks; they provided CW with food, shelter, and transportation; helped with school and were authorized to discipline CW if she failed to follow their rules.  Moreover, CW regarded Defendant as a father figure. 

            Court also found no abuse of discretion in considering Defendant’s relationship with CW, the disparity in their ages, and her mental condition to be aggravating circumstances.  Defendant was not merely a custodian but an uncle with whom CW was close and a person she considered to be a father figure.  Nature of Defendant’s offenses seemed more heinous than “typical” cases of child seduction, thus seven-and-one-half year sentence with three and one-half years suspended to probation was not inappropriately harsh.  Held,  judgment affirmed.

Herron v. State, 55A05-0906-CV-341

5th Dist., 12-29-09, Ind.App.

Attorney: Steven C. Litz

Holding:          Defendant, who was required by Arizona to register as a sex offender for life when he committed his offense in 1983, is a “sex offender” who is required to register for life under Indiana’s Sex Offender Registration Act.  I.C. 11-8-8-19(f) provides that a person required to register as a sex offender in any jurisdiction shall register in Indiana for the period required by the other jurisdiction.  Defendant waived his ex post facto argument based on Wallace v. State, 905 N.E.2d 371 (Ind. 2009) because he did not present the issue to the trial court.  Waiver notwithstanding, the Act is not an ex post facto law as applied to Defendant.  In Jenkins v. State, 905 N.E.2d 384 (Ind. 2009), plurality of Court held that portions of Indiana’s Sex Offender Registration Act requiring lifetime registration may be applied retroactively if the offender was already required to register at time of his offense.  This was the case with Defendant, who was required to register as a sex offender when he committed his offense.  Wallace, unlike Defendant, was not required to register when he committed his offense and therefore could not be subjected to the entirety of the Act.  Held, trial court’s order affirming Defendant’s lifetime obligation to register in Indiana as sex offender affirmed.