Indiana Criminal Law

Kimbrough v. State, 20A03-0901-CR-29

3rd Dist., 08-13-09, Ind.App. 911 N.E.2d 621

Attorney: Nancy A. McCaslin

Holding:          In opinion affirming Defendant’s conviction for battery with deadly weapon, Court held:  1) trial court did not abuse its discretion in continuing trial for four weeks to obtain a second alternate juror; 2) trial court did not err in admitting 911 call into evidence, police officer’s testimony regarding comments that victim made to him about incident, or in permitting victim to testify about amount of time that he was in pain; 3) trial court properly instructed jury as to definition of “serious bodily injury” even though he was charged only with committing battery by means of a deadly weapon; 4) evidence was sufficient to rebut Defendant’s self-defense claim; and 5) trial court did not err in ordering Defendant to reimburse Public Defender Fund in amount of $500 even though no indigency hearing was held regarding his ability to pay.  Held, judgment affirmed and remanded for clarification of restitution order.

Meister v. State, 68A04-0604-CV-196

4th Dist., 08-31-09, Ind.App.

Attorney:

Holding:          On remand from the U.S. Supreme Court in light of Arizona v. Gant, 129 S.Ct. 1710 (2009), Court of Appeals found a search of a car was justified under the automobile exception even if not authorized as a search incident to arrest.  In Gant, the Supreme Court’s primary aim was to revisit New York v. Belton, 101 S.Ct. 2860 (1981).  The Gant Court clarified that, henceforth, Belton should be understood only to permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  However, the Gant Court did not disturb other established exceptions to the warrant requirement that authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand.  For instance, a search falls within the automobile exception when a vehicle is readily mobile and probable cause exists to believe it contains contraband or evidence of a crime.  Here, the State filed a forfeiture action for Defendant’s car in which drugs were found when her son was arrested for driving with a suspended license.  The officer had arrested the son on two prior occasions and both times found drugs either on his person or in his vehicle.  While arresting the son, officer patted the son down and discovered an ink pen without any of its internal parts, with a powdery-looking residue inside of it.  The officer then searched the son’s car and found more white substance which field tested positive for methamphetamine.  Although the search would not have been justified by Gant because the son was already removed from car, handcuffed and was being arrested for driving while suspended for which no evidence could be found in the car, the son’s prior drug arrests and the powdery substance in his pen constituted probable cause to believe a search of the car would uncover contraband.   Thus, the search was proper under the automobile exception to the warrant requirement, and trial court properly denied the motion to suppress in the forfeiture of Defendant’s car.  Held, judgment affirmed; Riley, J., dissenting on basis that the son was not being arrested for drug possession at the time of the search, and thus, the search of the car was unconstitutional.

Gerber v. State, 02A03-0902-CR-73

3rd Dist., 08-28-09, Ind.App.

Attorney: Donald C. Swanson

Holding:          Trial court erred by treating the running of the statute of limitations period as a prerequisite to petitioning for expungement.  Court rejected State’s argument that, for cases in which no charges are filed, person should wait a reasonable time after being arrested to file a petition for expungement and limitations period constitutes a reasonable time.  This position has no support in text of expungement statute, and would “effectively prevent anyone arrested for a Class A felony of murder from petitioning for expungement when no charges are filed because a prosecution for those offenses may be commenced at any time. 

            Here, State did not file notice of opposition to Gerber’s petition for expungement,  and trial court thus had discretion to summarily deny the petition only if it found the petition “insufficient.”  I.C. 35-38-5-1(d)(3)(A).  Although meaning of the term “insufficient” remains unclear, trial court has discretion on remand to either:  1) summarily grant the petition; 2) set matter for hearing; or 3) summarily deny the petition after finding it insufficient.  Because prosecutor did not file a notice of opposition, trial court should not have permitted prosecutor to file a brief opposing Gerbers’ petition and “such participation should not be permitted on remand.”  Held, judgment reversed and remanded;  Baker, C.J., concurring in part and dissenting in part, believes that on remand, trial court has no authority to summarily deny Gerber’s petition.  Barnes, J. concurring in result in part and dissenting in part, would permit participation by prosecutor on remand.

In re J.G. v. , 32A04-0902-JV-79

4th Dist., 08-07-09, Ind.App.

Attorney: Eric M. Oliver

Holding:          Trial court erred in ordering Indiana Department of Child Services (DCS) to pay for appointment of counsel to represent Mother in termination of parental rights proceeding.   It is not evident that the legislature intended that legal services be included in statutory definition of “services” in termination proceedings, for which DCS is responsible for paying.  See I.C. 31-40-1-2; I.C. 31-40-1-1.5(c).  As a general rule, the legislature prefers for the counties, rather than the State, to be responsible for the cost of legal services.  Held, judgment reversed and remanded; Barnes, J., dissenting, believes that after passage of HEA 1001, DCS is responsible for cost of appointed counsel in termination proceedings and majority’s reliance on statutory definition of “services” is misplaced.

In re D.S. v. , 48A02-0905-JV-428

2nd Dist., 08-10-09, Ind.App. 910 N.E.2d 837

Attorney: Steven C. Smith

Holding:          Trial court did not err in rejecting DCS’s placement recommendations and following recommendation of probation department to place Defendant in the Right of Passage program in Arizona.  A court may not place a delinquent child in a non-secure detention facility outside of Indiana unless the court makes written findings, based on clear and convincing evidence, the out-of-state placement is appropriate because there is no “comparable facility with adequate services located in Indiana.”  I.C. 31-37-19-3(b)(2)(A).  Here, evidence supported trial court’s findings and decision to place Defendant in Right of Passage program against DCS’s recommendation.  Probation officer testified: 1) that program would allow Defendant to use his leadership skills “in a very positive way” and could lead to athletic scholarship opportunities; 2) probation was unable to find comparable placement in Indiana; and 3) placement in facilities recommended by DCS would threaten safety of surrounding communities and would cause a “dramatic setback” for Defendant as it would not sever Defendant’s negative ties with his community.  Right of Passage program was also recommended and approved by Madison County’s chief probation officer.  Held, judgment affirmed.

See also: In re T.D., No. 71A04-0906-JV-312 (Ind.Ct.App. 08-28-09) (clear and convincing evidence supported trial court’s placement of juvenile in out-of-state shelter care facility and finding that DCS’s alternative placement recommendations were contrary to T.D.’s best interests).

McClendon v. State, 49A02-0811-CR-999

2nd Dist., 08-10-09, Ind.App. 910 N.E.2d 826

Attorney: David Pardo

Holding:          In murder prosecution, trial court did not abuse it discretion in admitting evidence of a prior confrontation between Defendant and victim’s father that occurred eleven months before shooting.  During voir dire, opening statements and in his case-in-chief, Defendant raised the issue of self-defense.  Though somewhat distant in time, evidence was admissible to show that Defendant harbored hostility toward victim’s father and was relevant to shooting at father’s house.  Goldsberry v. State, 821 N.E.2d 447 (Ind.Ct.App. 2005).  Trial court also explicitly considered prejudicial effect of reference to marijuana or “weed” and determined that it provided context for the conflict.  Held, judgment affirmed.

Brown v. State, 12A02-0901-CR-1

2nd Dist., 04-21-09, Ind.App.

Attorney: John Fierek

Holding:          Trial court abused its discretion in admitting results of Defendant’s blood alcohol test because State failed to lay the proper foundation.  Blood samples collected at the request of a law enforcement officer as part of a criminal investigation must be obtained by “[a] physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician.”  I.C. 9-30-6-6(a).  Also, the bodily substance must be obtained by a medical professional specified in I.C. 9-30-6-6(j).  Here, Defendant consented to a blood draw after he was involved in an accident and exhibited signs of intoxication.  A certified lab technician drew Defendant’s blood according to the method she was taught in school rather than the hospital’s protocol, which was established by a physician.  Because the lab technician was not acting under the protocol prepared by a physician, the blood test results were inadmissible.  Also, because a certified lab technician is not listed in the statute as a person who may draw blood at the request of a law enforcement officer, the blood tests were inadmissible.  Although the certified lab technician was certified to practice phlebotomy, she was not a certified phlebotomist, which is listed in the statute.  However, because the evidence of intoxication was overwhelming, the erroneous admission of the blood test results was harmless.  Held, judgment affirmed.

Street v. State, 49A02-0901-CR-91

2nd Dist., 08-18-09, Ind.App. 911 N.E.2d 654

Attorney: Ann M. Sutton

Holding:          There is no mens rea requirement for the offense of public intoxication.  See McCaffrey v. State, 523 N.E.2d 435 (Ind.Ct.App. 1988).  Accordingly, the State is not required to show that Defendant had a knowing mens rea to commit public intoxication because mens rea is not an element of the offense as defined in I.C. 7.1-5-1-3.  Thus, the State is only required to prove that Defendant was 1) in a public place and 2) intoxicated.  Because Defendant does not dispute that he was in a public place and intoxicated, Court affirmed his conviction.  Held, judgment affirmed.

Price v. State, 49A04-0812-CR-698

4th Dist., 08-21-09, Ind.App.

Attorney: Ruth Johnson

Holding:          I.C. 35-46-3-12(b)provides that “[a] person who knowingly or intentionally beats a vertebrate animal commits cruelty to an animal, a Class A misdemeanor.”  In addition, subsection (e) states that “[i]t is a defense to a prosecution under this section that the accused person:…engaged in a reasonable and recognized act of training, handling, or disciplining the vertebrate animal.”  Defendant argued that the statute’s exemption of “reasonable” training and discipline renders the statute unconstitutionally vague because the term can have various meanings depending on who interprets it.  Here, Defendant admitted to grabbing his dog by the back of the neck to immobilize him.  Defendant then repeatedly struck the dog with a belt several times with enough force to make the dog scream loudly every time he was struck.  Court could not say a person of ordinary intelligence would not be aware that these actions violate I.C. 35-46-3-12(b).  Furthermore, a person of ordinary intelligence would know that these actions are not “reasonable” acts of discipline or training, which are exempt from purview of statute.  Thus, statute is not unconstitutionally vague as applied to Defendant.  Held, judgment affirmed.

See also:  Tooley v. State, No. 49A04-0902-CR-62 (rejecting argument that terms “unnecessarily” and “cruelly” in statute defining “beat” are highly subjective terms that invite “arbitrary arrests and prosecutions” and fail to provide notice as to what conduct is prohibited).

Collins v. State, 35A02-0902-CR-162

2nd Dist., 08-21-09, Ind.App.

Attorney: Matthew Grantham

Holding:          Trial court did not err by adding conditions to Defendant’s probation previously ordered in 2000. The court may hold a new probation hearing at any time during a probationer’s probationary period and modify the probationer’s conditions of probation.  I.C. 35-38-2-1.8(b)(1), (c).  The court may hold the new probation hearing even if: (1) the probationer has not violated the conditions of probation; or (2) the probation department has not filed a petition to revoke probation.  I.C. 35-38-2-1.8(d).   

            Here, in 2000, Defendant pled guilty to Class B felony Rape and Burglary, and trial court sentenced him to thirty-six years with ten years suspended to probation.  Soon after Defendant’s release from prison in 2009, trial court held a hearing, at State’s request, and added sex offender probation conditions, to which Defendant objected.  These conditions included counseling, no contact with children, 1000-foot living restrictions, sex offender registration, etc.  Although Court of Appeals in Jones v. States, 789 N.E.2d 1008 (Ind.Ct.App. 2003), held that a trial court cannot issue additional discretionary terms of probation in the absence of a probation violation, I.C. 35-38-2-1.8 supercedes Jones.  Moreover, trial court’s additional conditions, without a revocation, did not violate due process because altering the terms of probation, like a probation extension, does not have the impact on liberty as does incarceration.  Finally, the application of I.C. 35-38-2-1.8 to Defendant was not an ex post facto law because the statute defines when and how a trial court may alter the terms of probation after their original imposition and does not increase the punishment for a crime.  Thus, trial court did not abuse its discretion by ordering the additional conditions.  Held, judgment affirmed in part and remanded in part with instructions to clarify specified vague sex offender conditions.

NOTE: The Court declined to follow Ferrill v. State, 904 N.E.2d 323 (Ind.Ct.App. 2009) (holding that trial court is without authority to modify probation conditions without a probation violation).