G:\28243 Ind Law Rev 45-4\45masthead.wpd


RECENT DEVELOPMENTS IN INDIANA CRIMINAL
LAW AND PROCEDURE

JOEL M. SCHUMM*

The Indiana General Assembly and Indiana’s appellate courts confronted a
variety of significant issues during the survey period October 1, 2010, to
September 30, 2011.  The bills that passed were modest, except for legislation
that provided broad new opportunities for restrictions on arrest and conviction
records for many Hoosiers.  The Indiana Supreme Court saw the end of Justice
Boehm’s fourteen year tenure and the appointment of Justice David, as both it
and the Indiana Court of Appeals addressed issues a wide range of issues that
affect cases from their inception to their conclusion.  Some of the most significant
developments are explored below.  

I.  LEGISLATIVE DEVELOPMENTS

What looked early in 2011 like a blockbuster year for sentencing reform
fizzled into a legislative session with mostly tinkering in the criminal law realm. 
This section summarizes some of the bills passed in the long session of 2011 to
take effect July 1, 2011, and concludes with the failure of the general assembly
to pass sweeping sentencing reform, which held considerable promise early in the
session.  

A.  Texting
Few doubt that texting while driving is a bad idea, but the ban enacted in

House Bill 1129 may create more problems than it solves.1  Only those who type,
transmit, or read a text or email message while operating a motor vehicle commit
a Class C infraction.2  Drivers remain free to dial their phone, read the New York
Times app, Google any term they’d like, or play Angry Birds.  Police may not
confiscate the “telecommunications device,”3 but could presumably ask consent
to see it,4 which savvy drivers will refuse.  If an officer tickets a person for the
infraction, proof may be difficult at trial without the phone unless the driver
makes an admission.  Moreover, some motorists will be charged with criminal
offenses if an officer sees contraband in their vehicle and makes an arrest.  If
courts find the officer lacked “an objectively justifiable reason” for the stop (how
can an officer tell a person is texting as opposed to engaging in one of the many
other things a person does with his or her smart phone?), the evidence may be
suppressed.5  

* Clinical Professor of Law, Indiana University Robert H. McKinney School of Law.  B.A.,
1992, Ohio Wesleyan University.  M.A., 1994, University of Cincinnati.  J.D., 1998, Indiana
University Robert H. McKinney School of Law.

1. H.R. 1129, 117th Gen. Assemb., 1st Reg. Sess. (Ind. 2011).
2. IND. CODE § 9-21-8-59 (2011).
3. Id.
4. See, e.g., State v. Washington, 898 N.E.2d 1200, 1206 (Ind. 2008).
5. See State v. Massey, 887 N.E.2d 151, 155-58 (Ind. Ct. App. 2008).



1068 INDIANA LAW REVIEW [Vol. 45:1067

B.  Sexting
A separate bill creates a new defense to the crimes of child exploitation and

obscene performance before minors when a person engages in the consensual
exchange of sexual pictures.6  The defense applies if the defendant is twenty-one
or younger, used a wireless device or social networking site to exchange the
sexual pictures, and engaged in an “ongoing personal relationship” (but not a
familial relationship) with another person who is within four years of the
defendant’s age.7  The defense does not apply if the message is then forwarded
to others.8

C.  Restricted Criminal Records
Although Indiana’s expungement statute has long provided a small group of

individuals an avenue for the complete obliteration of criminal records under
narrow circumstances,9 House Bill 1211 was enacted in the final days of the
session to provide relief to a much broader class of both arrest and conviction
records.10  

An individual arrested but not prosecuted, acquitted of all charges, or
vindicated on appeal may now petition to restrict access of the arrest record.11 
If successful, the court shall order the state police not to disclose or permit
disclosure of the arrest record to noncriminal justice organizations.12  Those
convicted or adjudicated delinquent of a misdemeanor or D felony that did not
result in injury may now petition to restrict their conviction record.13  The
defendant must wait eight years, have satisfied all obligations of the sentence, and
cannot have been convicted of any felonies in the interim.14  The new bill
expressly states “the person may legally state on an application for employment
or any other document that the person has not been arrested for or convicted of
the felony or misdemeanor recorded in the restricted records.”15  

The following chart compares the long-standing expungement statute (the
first column on the left) and the new provisions that allow restrictions on arrest
records (middle column) or conviction records (far right column).

6. See IND. CODE §§ 35-49-3-4(b) & (c) (2011).
7. Id.
8. Id.  For an excellent overview of the myriad of concerns underlying sexting, see Jordan

J. Szymialis, Note, Sexting:  A Response to Prosecuting Those Growing Up with a Growing Trend,
44 IND. L. REV. 301 (2010).

9. IND. CODE §§ 35-38-5-1 & -2.
10. H.R. 1211, 117th Gen. Assemb. 1st Reg. Sess. (Ind. 2011).
11. IND. CODE § 35-38-5-5.5 (2011).
12. Id.
13. Id. § 35-38-8.
14. Id.
15. Id.



2012] CRIMINAL LAW 1069

Expungement  (pre-2011) Restrict Arrest Records Restrict Conviction

Records

Statute Ind. Code §§ 35-38-5-1 & -2 Ind. Code § 35-38-5-5.5 Ind. Code § 35-38-8

Eligibility Person (1) arrested but no

charges filed or (2) all charges

dropped because (a) mistaken

identity (b) no offense or (3) no

probable cause

Person arrested but (1) not

prosecuted or dismissed; (2)

acquitted; or (3) convicted

but conviction later vacated

Person convicted or

adjudicated delinquent of “a

misdemeanor or a Class D

felony that did not result in

injury to a person”

Defense

Procedure

Verified petition in county of

charges or arrest. 

Include:  date of arrest, charge,

l.e.a. and case identifying

information, petitioner’s d.o.b.

and SSN

Serve: l.e.a. and c.r.r. 

Verified petition in court

where charges filed or trial

held.  Include:  date of

arrest; charge; date of

dismissal, acquittal or

vacated conviction; reason

vacated; l.e.a.; known case

identifying information;

petitioner’s d.o.b. and SSN.

Serve: pros. and c.r.r.

“the person may petition a

sentencing court to order

the state police department

to restrict access to the

records concerning the

person’s arrest and

involvement in criminal or

juvenile court proceedings”

(no petition specifics)

Timing No deadlines in statute Must wait at least (1) 30

days after acquittal (2) 365

days after conviction

vacated or (3) 30 days after

charges dismissed (if not

refiled)

Eight “years after the date a

person completes the

person’s sentence and

satisfies any other”

sentencing obligation

Prosecutor

or law

enforcement

agency

(l.e.a.)

l.e.a.:  notify all agencies with

records. Agencies may file

opposition (with sworn

statements) within 30 days.

Pros.: may file opposition

within 30 days. Must attach

“certified cop[ies] of any

documentary evidence

showing that the petitioner

is not entitled to relief”

No procedure for opposition

in statute

Court (1) summarily grant; (2) set for

hearing; or (3) summarily deny

if (a) insufficient petition or (b)

petitioner not entitled to relief

based on l.e.a. affidavits.

If hearing:  shall grant unless (1)

requirements not met or  (2)

petitioner has a record of arrests

or (3) pending charges

(1) summarily grant; (2) set

for hearing; (3) summarily

deny if (a) insufficient

petition or (b) petitioner not

entitled to relief based on

pros. documentary

evidence. 

If hearing:  shall grant

unless petitioner is being

reprosecuted on same

charge

“shall grant” if person is (1)

not a sex/violent offender

(2) qualifying D felony or

misdemeanor; (3) eight

years have passed; and (4)

satisfied sentencing

obligation and no new

felony convictions

Relief l.e.a.: “shall within thirty (30)

days of receipt of the court

order, deliver to the individual or

destroy all fingerprints,

photographs, or arrest records in

their possession”

“shall order the state police

department not to disclose”

information to “a

noncriminal justice

organization or an

individual” under Title 10

Order DOC, l.e.a, c.r.r., and

others “who incarcerated,

provided treatment for, or

provided other services” to

prohibit release “to a

noncriminal justice agency” 



1070 INDIANA LAW REVIEW [Vol. 45:1067

Some of the information restricted under the new legislation, though, may already
be available to companies that do background checks or be accessible
elsewhere.16  The legislation will likely need to be revisited to meet its well-
intentioned goal of giving people a second chance.17  

D.  Guns and Drugs
Some of the most popular areas for legislative intervention are guns and

drugs.  Although one might expect a stiffening of penalties or broadening of
offenses for both, during the 2011 session handgun laws were loosened while
marijuana laws were broadened.  Senate Bill 506 changed the parameters of
restrictions on carrying a handgun without a license by expressly exempting the
ability to carry a handgun without a license “in or on” private property and
allowing unloaded guns in “legally controlled” vehicles.18  An owner of property
may still prohibit possession.19  Those who wish to use synthetic cannabinoids
were not so lucky.  Senate Bill 57 broadened all existing prohibitions on
marijuana possession and dealing to include synthetic cannabinoid and salvia.20

E.  Voyeurism
The voyeurism statute was amended largely in response to a highly

publicized case at a mall in Indianapolis.  In 2010, voyeurism was defined to
include “A person: . . . who . . . peeps into an area where an occupant of the area
reasonably can be expected to disrobe, including:  (A) restrooms; (B) baths; (C)
showers; and (D) dressing rooms; without the consent of the other person . . . .”21 
When a man put a camera on his shoe to look up dresses at a mall,22 a trial court
had little choice but to dismiss the charges under the existing statute.23 
Voyeurism required peeping in areas where people were reasonably expected to
disrobe, which did not include mall hallways.24  In 2011, though, the voyeurism
statute was broadened to create the offense of public voyeurism for the non-

16. See generally Niki Kelly, Fixes Sought for 2nd Chance Law, J. GAZETTE, Oct. 14, 2011,
http://www.journalgazette.net/article/20111014/LOCAL/310149960/1002 (observing the law
“doesn’t quite work in the digital world” where “some businesses specialize in doing criminal
background checks for private employers and have data already on file that would not be scrubbed”
of the information restricted under the new legislation).

17. See id. (observing, among other things, that felons could be admitted to practice law
without being required to disclose prior crimes and schools may be denied access to criminal
records when doing background checks on prospective employees).

18. IND. CODE § 35-47-2-1 (2011).
19. Id.
20. Id. 35-41-1-24.2.
21. Id. § 35-45-4-5(a).
22. See Police Show Gadgets Inside Man’s Pants, WANE.COM, June 25, 2010,

http://www.wane.com/dpp/news/wane-ftwayne-Police-show-camera-inside-mans-pants.
23. See Delagrange v. State, 951 N.E.2d 593, 594 (Ind. Ct. App. 2011).
24. IND. CODE § 35-45-4-5(a) (2011).



2012] CRIMINAL LAW 1071

consensual “peep[ing] at the private area of an individual.”25  

F. Selling Alcohol to the Middle-Aged
Last year’s survey mentioned a 2010 bill that criminalized carry-out sales of

alcohol without checking identification.26  The offense was a Class B
misdemeanor but included a defense for those selling to someone who “was or
reasonably appeared to be more than fifty (50) years of age.”27  The legislation
was revisited in 2011 and now criminalizes only sales to a person “who is or
reasonably appears to be less than 40 years of age.”28

G.  Bad Test Results and a New Home for the Department of Toxicology
A number of Indianapolis Star articles focused on problems at the

Department of Toxicology, which was housed for many years in the Indiana
University School of Medicine Department of Pharmacology & Toxicology.29 
For example, an audit of tests during 2007-09 found “a flawed marijuana result
every 3.28 days and a false positive marijuana result once every 18 days.”30 
Legislation passed in 2011 removed the Department from the School of Medicine
and created a new state department of toxicology within the executive branch of
state government, which will be led by a director who serves at the governor’s
pleasure.31

But what about the inaccurate tests from the past several years?  Flawed tests
alone do not necessarily lead to relief for criminal defendants, many of whom
pleaded guilty.  Those defendants convicted after trial might pursue a post-
conviction claim based on newly discovered evidence,32 while those who pleaded
guilty could assert their plea was not knowing and voluntary.33  Both sets of
defendants might also attempt to pursue claims that the State, through one of its
agencies, withheld exculpatory evidence in violation of Brady v. Maryland.34

25. Id. § 35-45-4-5(d).
26. Joel M. Schumm, Recent Developments in Indiana Criminal Law & Procedure, 44 IND.

L. REV. 1135, 1135-36 (2011) [hereinafter Schumm, 2010 Recent Developments].
27. Id. at 1136.
28. IND. CODE § 7-1-5-10-23 (2011).
29. See, e.g., Mark Alesia & Tim Evans, Drug and Alcohol Tests Had “Error After Error,”

INDIANAPOLIS STAR, May 17, 2011, at A1.
30. Id.
31. IND. CODE § 9-27-5-1 (2011).
32. IND. R. POST-CONVICTION REMEDIES 1(a)(4); see Rhymer v. State, 627 N.E.2d 822, 823-

24 (Ind. Ct. App. 1994).  Guidance may also be found in cases from other states.  See, e.g., In re
Investigation of W. Va. State Police Crime Lab, Serology Div., 438 S.E.2d 501 (W. Va. 1993).  

33. IND. CODE § 35-35-1-4(c) (2011); see also Turner v. State, 843 N.E.2d 937, 944 (Ind. Ct.
App. 2006).  

34. 373 U.S. 83 (1963); see also Kyles v. Whitley, 514 U.S. 419 (1995).



1072 INDIANA LAW REVIEW [Vol. 45:1067

H.  Forfeitures:  More Confusion than Clarity
Article 8, section 2 of the Indiana Constitution has long provided, “The

Common School fund shall consist of . . . all forfeitures which may accrue . . . .” 
The practice of trial courts around the state, however, had taken a different
course, with forfeiture funds being retained for law enforcement and rarely sent
to the common school fund.35  Shortly before the end of the legislative session,
the Indiana Supreme Court took note of the existing statutory language allowing
trial courts to except from the proceeds “law enforcement expenses incurred ‘for
the criminal investigation associated with the seizure’ and a prosecutor’s
expenses associated with the forfeiture proceeding and the expenses related to the
criminal prosecution.”36  The supreme court offered something far short of an
endorsement, though:  “Whether this limited diversion, calculating actual
expenses on a case-by-case basis, is consonant with the constitutional command
that ‘all forfeitures’ be deposited in the Common School Fund is an unresolved
question.”37  A bill passed late in 2011 session expressly provided eighty-five
percent of forfeiture proceedings to law enforcement and fifteen percent to the
common school fund (after the deduction of an administrative fee).38  Governor
Daniels vetoed Senate Bill 215, noting that the  

bill would take more than ninety cents of every dollar collected through
forfeiture for the “expense of collection” rather than sending it to the
Common School fund. That is unwarranted as policy and constitutionally
unacceptable in light of the Supreme Court’s recent guidance and the
plain language of Article 8, Section 2 of the Indiana Constitution.39

I.  Failed Sentencing Reform
After months of study, the 15-0 support of the Criminal Code Evaluation

Commission, and Governor Daniels’ endorsement, Senate Bill 561 proposed a
shift from Indiana’s “one-size-fits-all sentencing policy for theft and drug
offenses to a more graduated approach.”40  Among other things, the bill would
have reduced many felony drug offenses by one class felony if less than ten
grams were involved and restricted previous strict liability enhancements for
proximity within 1000 feet of parks, schools, family housing complexes, and

35. See Heather et al., Cashing in on Crime, INDIANAPOLIS STAR, Nov. 14, 2010, at A1.
36. Serrano v. State, 946 N.E.2d 1139, 1142 n.3 (Ind. 2011) (quoting IND. CODE § 34-6-2-73

(2011)).
37. Id.
38. S. Enrolled Act 215, 117th Gen. Assemb., 1st Reg. Sess. (Ind. 2011).
39. Letter from Mitchell E. Daniels, Jr., Governor, State of Indiana, to David Long, President

Pro Tempore, Indiana State Senate (May 13, 2011), available at http://www.in.gov/gov/files/
215VetoMessage.pdf.

40. JUSTICE CTR., JUSTICE REINVESTMENT IN INDIANA 2 (2010), available at http://issuu.com/
csgjustice/docs/jr_indiana_summary_report_final.



2012] CRIMINAL LAW 1073

youth centers to apply only “when children are present.”41  It would also have
reduced theft from a felony to a misdemeanor unless the property taken was
valued at $750 or more or the defendant had a prior theft conviction.42  It wasn’t
long before “prosecutors assailed [the bill] as soft on crime, senators gutted the
bill and even lengthened sentences for some offenders.”43  The Governor
threatened a veto of the new bill that no longer achieved the goal of graduated
penalties and “smarter incarceration,” and the bill died.44  

II.  SIGNIFICANT CASES

The Indiana Supreme Court and Indiana Court of Appeals addressed a wide
range of issues that impact criminal cases from their inception to their conclusion. 
Although the five members of the Indiana Supreme Court were unchanged from
the appointment of Justice Rucker in 1999 until the retirement of Justice Boehm
in 2010, the replacement of Justice Boehm by Justice David could signal at least
a modest shift in the court.  Some of Justice David’s opinions and votes are
mentioned below, and the impact of his appointment is explored in the
conclusion.

A.  Resisting Unlawful Home Entries by Police
No Indiana Supreme Court case in recent memory has generated the

magnitude of public and press reaction that came after the 2011 opinion in Barnes
v. State.45  The reaction was not a product of the facts:  a defendant convicted of
battery on a police officer and other offenses after police responded to a domestic
violence call from his wife.46  Police observed his wife enter the apartment from
the parking lot, saw Barnes follow her, and attempted to enter the apartment after
Barnes refused to allow them entry to investigate.47  The reaction focused instead
on the breadth of the court’s holding:  “the right to reasonably resist an unlawful
police entry into a home is no longer recognized under Indiana law.”48  The
supreme court acknowledged the longstanding common law right to resist
unlawful police action but concluded that the right “is against public policy and

41. S.B. 561, 117th Gen. Assemb., 1st Reg. Sess. (Ind. 2011), available at http://www.in.gov/
legislative/bills/2011/SB/SB0561.3.html

42. Id.
43. Heather Gillers, Gov. Daniels:  I’ll Veto Amended Prison Bill, INDIANAPOLIS STAR, Mar.

23, 2011, at A1.  
44. Id.  
45. 946 N.E.2d 572 (Ind. 2011), aff’d on reh’g, 953 N.E.2d 473 (Ind. 2011); see also Dan

Carden, Ind. Attorney General Wants Cop Entry Ruling Revised, but not Entirely, NW. IND. TIMES,
May 30, 2011, http://www.nwitimes.com/news/local/govt-and-politics/article_e7415da6-3906-
5f71-87e3-dc781019b8ae.html (observing that the “[p]ublic reaction to the court’s ruling has been
overwhelmingly negative”).

46. Barnes, 946 N.E.2d at 574.
47. Id.
48. Id. at 577.  



1074 INDIANA LAW REVIEW [Vol. 45:1067

modern Fourth Amendment jurisprudence.”49  Specifically, arrestees now have
civil redress against unlawful police action and allowing resistance may escalate
“the level of violence and therefore the risk of injuries to all parties involved
without preventing the arrest.”50  Barnes’s convictions were affirmed.51  Both
Justice Dickson and Justice Rucker dissented, concluding “the wholesale
abrogation of the historic right of a person to reasonably resist unlawful police
entry into his dwelling is unwarranted and unnecessarily broad,”52 and “it is
breathtaking that the majority deems it appropriate or even necessary to erode this
constitutional protection based on a rationale addressing much different policy
considerations.”53

Barnes filed a petition for rehearing, and the Attorney General filed a
response arguing for the same result but a narrowed holding.54  The Legislative
Council created a summer “Barnes v. State subcommittee” to consider a statutory
response to the case.55  Members of the General Assembly also filed a bipartisan
amicus brief joined by forty state senators and thirty-one representatives, asking
the court to narrow its holding in a manner consistent with Indiana’s robust self-
defense statute, which “has long allowed citizens to use ‘reasonable’ force if the
person ‘reasonably believes’ such force is necessary to prevent or terminate
unlawful entry into their home.”56  The legislators’ amicus brief argued that the
statute was broadened by large majorities in 2006 to make clear Hoosiers had no
duty to retreat, which embodies the public policy of the state to grant citizens
“greater autonomy to protect themselves from unlawful incursions into their
homes.”57  

The Indiana Supreme Court granted rehearing in September.  The opinion
acknowledged that petitions for rehearing had been filed by “thoughtful people”
and did not repeat the broad language that generated the public ire.58  Instead, the
opinion reframed the issue as a narrower one:  “the suspected spouse abuser's
contention that the trial court erred when it refused to instruct the jury that he had
the right to get physical with the police officers if he believed their attempt to
enter the residence was legally unjustified.”59  The opinion emphasized that its

49. Id. at 576.  
50. Id.  
51. Id. at 578.
52. Id. at 579 (Dickson, J., dissenting).  
53. Id. at 580 (Rucker, J., dissenting).  
54. All briefs filed in the case are available on the Indiana Law Blog.  See Marcia Oddi, Ind.

Decisions—Attorney General Files Response in Barnes v. State, IND. L. BLOG (July 27, 2011 5:15
PM), http://indianalawblog.com/archives/2011/06/ind_decisions_a_153.html.

55. See Legislative Council Barnes v. State Subcommittee, IND. GEN. ASSEMBLY, http://www.
in.gov/legislative/interim/committee/lcbs.html (last visited Jun 5, 2012).

56. Brief of Amicus Curiae Senators and Representatives in Support of Appellant’s Petition
for Rehearing, at 2, Barnes v. State, 946 N.E.2d 572 (no. 82S05-1007-CR-343).

57. Id.  The author of this Article served as counsel for amici and authored the brief.
58. Barnes v. State, 953 N.E.2d 473, 473 (Ind. 2011).
59. Id.



2012] CRIMINAL LAW 1075

original holding did “not alter, indeed says nothing, about the statutory and
constitutional boundaries of legal entry into the home or any other place.”60  It
concluded that “[t]he General Assembly can and does create statutory defenses
to the offenses it criminalizes, and the crime of battery against a police officer
stands on no different ground.  What the statutory defenses should be, if any, is
in its hands.”61  Justice Dickson concurred in the result, and Justice Rucker
dissented, citing “some tension” with the court’s opinion and the self-defense
statute cited by the legislative amicus brief.62  The issue is almost certain to
resurface as a legislative development in next year’s survey.

B.  Indigent Counsel Issues
The supreme court and court of appeals each issued opinions about the role

and responsibility of trial courts in addressing issues involving appointment of
counsel for indigent defendants.  Specifically, the supreme court addressed the
responsibility of trial courts when confronted with persistent complaints by a
defendant about his or her appointed counsel, and the court of appeals addressed
the propriety of making a change in determination of indigency status based on
obstreperous conduct.

In Johnson v. State,63 the supreme court addressed the not-so-uncommon
situation of an indigent defendant writing the trial court to complain about neglect
by appointed counsel.  There, the trial court had simply passed the complaint
along to the county public defender, believing she lacked authority to take any
other action.64  The supreme court detailed the history of “Indiana’s reform of
public defender services” and the importance of independence of defense counsel
through the creation of public defender boards in many counties instead of
employment by trial courts.65  Nevertheless, trial courts “cannot take a complete
‘hands-off’ approach and totally rely on a bureaucratic agency,” which the court
cautioned could lead to “inefficiency and overspending” as in England.66  

Although it would be “impossible and unreasonable for a judge to investigate
every” complaint about appointed counsel, the court held that trial courts “should
at minimum require assurance from the public defender’s office that the issue will
be resolved” when confronted with a complaint against counsel who has “a track
record of the professional misconduct complained of.”67  Specifically, appointed
counsel in Johnson had been previously reprimanded and later suspended for
neglecting clients, “the very reason prompting the defendant’s complaint to the
trial judge in this case.”68  The court’s opinion suggests that trial courts will

60. Id. at 474-75.
61. Id. at 475.
62. Id. (Rucker, J., dissenting).
63. 948 N.E.2d 331 (Ind. 2011), cert. denied, 132 S. Ct. 1575 (2012).
64. Id. at 333.
65. Id. at 337.
66. Id. at 338.
67. Id.
68. Id. at 334 (citing In re Schrems, 922 N.E.2d 618 (Ind. 2010); In re Schrems, 856 N.E.2d



1076 INDIANA LAW REVIEW [Vol. 45:1067

seldom need to involve themselves in complaints from defendants about
appointed counsel, as the vast majority of public defenders have not been
disciplined for neglecting their clients’ cases.  One would also hope that the
independence of the defense function, which led to the creation of largely
autonomous public defender agencies, would carry with it the responsibility of
sometimes trimming its ranks to avoid thrusting counsel with repeated instances
of neglecting cases on future clients.  

Gilmore v. State,69 is a must-read for trial judges and others who confront the
difficult and often nebulous issues surrounding indigency determinations.  There,
after a case had been pending for five years and five court-appointed attorneys
had withdrawn because of breakdowns in the attorney-client relationship, the trial
court entered an order finding the defendant was no longer indigent and had
waived his right to counsel by his “obstreperous conduct.”70  The court of appeals
reversed, finding first that trial courts cannot reverse an indigency determination
without finding a change in circumstances.71  Rather, an indigency determination
must be based on the defendant’s financial condition and not his conduct and
behavior in dealing with counsel.72   

The court then turned to a comprehensive discussion of whether the
defendant waived or forfeited his right to counsel by his conduct.  Although the
trial court was understandably frustrated by the delay caused by Gilmore’s
behavior, which had led five court-appointed lawyers to withdraw, Gilmore had
never signaled an interest in representing himself and repeatedly requested
representation by counsel.73  In such cases of “waiver by conduct or forfeiture
with knowledge,” a defendant “is entitled to a hearing during which he should be
warned that if his obstreperous behavior persists, the trial court will find that he
has chosen self-representation by his own conduct.”74  Then, the trial court must
determine whether he “made a knowing and intelligent waiver of his right to
counsel, which includes a warning of the dangers and disadvantages of self-
representation established in an on-the-record evidentiary hearing where specific
findings are made.”75  In the absence of such a hearing, warning, and findings, the
court of appeals vacated the trial court’s order and remanded for further
proceedings.76  The Attorney General did not seek transfer in Gilmore, and the
Indiana Supreme Court has not explicitly imposed the same requirements but
likely would set a similar bar.  Trial courts that do not conduct a hearing and issue
a warning and findings before removing appointed counsel do so at peril of
reversal.

1201 (Ind. 2006)).
69. 953 N.E.2d 583 (Ind. Ct. App. 2011).
70. Id. at 585.  
71. Id. at 588.  
72. Id.
73. Id. at 592.  
74. Id.  
75. Id.  
76. Id. at 592-93.



2012] CRIMINAL LAW 1077

Finally, a more conventional challenge regarding appointment of counsel
comes from Reese v. State,77 where a misdemeanor conviction was entered
against a defendant after a trial at which he was required to represent himself.78 
Although the defendant was employed early in the case, he did not hire counsel
and later became unemployed and was not receiving unemployment
compensation.79  Rather than focusing on the bills the defendant had to pay, the
trial court focused on the defendant’s failure to save money to hire counsel.80 
Based on his “total financial picture,” the court of appeals concluded that
ordering the defendant to hire private counsel would result in a substantial
financial hardship, remanding for a new indigency hearing and new trial.81  

C.  Discovery for Criminal Defendants
In a pair of cases issued on the same day, the supreme court ruled against

defendants who sought discovery in criminal cases.  In In re Crisis Connection,
Inc.,82 a defendant charged with child molesting sought the counseling records of
the alleged victims and their mother.83  The trial court ordered Crisis Connection
to deliver the records for in camera review.  The court of appeals upheld the order
for in camera review, concluding the “interest in privacy” of the records was
“important” but not strong enough to bar in camera review.84  The supreme court
disagreed, focusing on the victim advocate privilege codified in Indiana Code
section 35-37-6-9(a),85 which protects victims and their advocates and service
providers from being “compelled to give testimony, to produce records, or to
disclose any information concerning confidential communications and
confidential information to anyone or in any judicial, legislative, or administrative
proceeding.”86  

The supreme court distinguished other cases that had permitted in camera
review in the face of a statutory privilege that contained exceptions,87 because the
victim advocate privilege prohibits any and all disclosure of information making
it clear the in camera review “would not reveal any nonprivileged information.”88 
The court also rejected the defendant’s Confrontation Clause challenge because
he would not be prevented from cross-examining the alleged victims “at trial,”89

77. 953 N.E.2d 1207 (Ind. Ct. App. 2011).
78. Id. at 1209.
79. Id. at 1211.
80. Id.
81. Id.
82. 949 N.E.2d 789 (Ind. 2011).
83. Id. at 792.
84. Id.
85. Id. at 792-93.
86. Id. (citing IND. CODE § 35-37-6-9(a) (2011)).
87. Id. at 794 (discussing exceptions “in connection with a criminal prosecution” or court

access).
88. Id. at 795.
89. Id. at 798.



1078 INDIANA LAW REVIEW [Vol. 45:1067

and rejected his due process challenge because the State’s “compelling interest
in maintaining the confidentiality of information gathered in the course of serving
emotional and psychological needs of victims of domestic violence and sexual
abuse” is not outweighed by the defendant’s “right to present a complete
defense.”90

In Crawford v. State,91 decided the same day as Crisis Connection, the court
easily dispatched with a defendant’s broad discovery request for footage from the
nonfiction police show, “The Shift.”92  The first of the three-step test for
determining whether information is discoverable in criminal cases requires a
“sufficient designation of the items sought to be discovered (particularity).”93 
Acknowledging that reasonable particularity will vary based on the facts, charges,
and information sought in each case, the court nevertheless reiterated that
defendants cannot merely request “everything related to the case.”94  The court
found “no real difference” between such a broad request and Crawford’s requests
for footage of “any and all statements” of police officers or anyone “interviewed
or questioned” in the specific case.95  A footnote in the opinion recited some
examples of discovery requests that were more particular and had been granted
by the trial court, including footage, statements, and reenactments of statements
made to specific individuals by name and footage of the crime scene by address.96 
These examples provide counsel and trial courts in future cases a better idea of
the contours of reasonable particularity in the context of footage from television
programs and more broadly.  

Related to the importance of receiving documentary evidence as part of
discovery is the importance of receiving the names of likely witnesses from
opposing counsel.  In Kennedy v. State,97 the trial court permitted a witness
discovered in the middle of a trial to testify for the State.  Exclusion is appropriate
“only if the State has blatantly and intentionally failed to provide discovery or if
the exclusion is necessary to avoid substantial prejudice to the defendant.”98 
Moreover, any error may be waived if the defendant does not alternatively request
a continuance when additional time is an appropriate remedy.99  In Kennedy, the
defendant did not request a continuance and refused the trial court’s offer of a
one-day continuance to investigate the newly disclosed witness.  This waived any
claim of error.100  On the merits the court of appeals also found no error in
allowing the witness because she had approached the State, which promptly

90. Id. at 802.
91. 948 N.E.2d 1165 (Ind. 2011).
92. Id. at 1166-67.
93. Id. at 1168.
94. Id.
95. Id. at 1168-69.
96. Id. at 1169 n.4.
97. 934 N.E.2d 779 (Ind. Ct. App. 2010).
98. Id. at 787.  
99. Id.  

100. Id. at 788.  



2012] CRIMINAL LAW 1079

disclosed her to the defense.101  Defense counsel had an opportunity to depose
her, and she did not testify until seven days after she was discovered at which
time defense counsel had an opportunity “to vigorously cross-examine her.”102

D.  Jury Issues:  Unanimity and Size
The supreme court addressed proper jury instructions to ensure verdicts are

unanimous and the court of appeals considered a challenge to a five-person jury. 
In both cases, defense counsel either agreed or did not object, which helped seal
the fate of affirmance.

In Baker v. State,103 a defendant was charged with three counts of child
molesting, each involving a different victim, but “the jury heard evidence of
multiple acts of molestation concerning each alleged victim.”104  He asserted that
some jurors may have relied on different evidence than others in convicting him
of each count.  The supreme court adopted the reasoning of a California Supreme
Court case, which explained 

the State may in its discretion designate a specific act (or acts) on which
it relies to prove a particular charge. However if the State decides not to
so designate, then the jurors should be instructed that in order to convict
the defendant they must either unanimously agree that the defendant
committed the same act or acts or that the defendant committed all of the
acts described by the victim and included within the time period
charged.105

The court slightly modified the language of a California jury instruction, which
“provides a useful model for this jurisdiction.”106  Although the trial court’s
instruction did not comply with the requirements outlined in the case, the
convictions were nevertheless affirmed because defense counsel “neither objected
to the trial court’s instruction nor offered an instruction of his own,” thus
resulting in waiver of the issue for appeal.107  

Beyond unanimity concerns are issues regarding the size of a jury.  By statute
juries in D felony and misdemeanor cases must include six persons.108  Trial
courts will often seat one or more alternate jurors to replace a juror in the event
one cannot conclude the trial due to an unforeseen emergency.  In Bex v. State,109
the prosecutor and defense counsel agreed not to seat an alternate and that only

101. Id.  
102. Id.
103. 948 N.E.2d 1169 (Ind. 2011), reh’g denied, 2011 Ind. LEXIS 781 (Sept. 7, 2011).
104. Id. at 1177.
105. Id. (citing People v. Jones, 792 P.2d 643 (Cal. 1990)).
106. Id. at 1177 n.4.
107. Id. at 1178.  The court also found the error was not fundamental because “the only issue

was the credibility of the alleged victims,” and the jury resolved the credibility dispute against
Baker.  Id. at 1179.

108. IND. CODE § 35-37-1-1(b) (2011).  
109. 952 N.E.2d 347 (Ind. Ct. App.), trans. denied, 962 N.E.2d 651 (Ind. 2011).



1080 INDIANA LAW REVIEW [Vol. 45:1067

five jurors would decide the case if something happened to one of the six jurors. 
Nevertheless, counsel later moved for a mistrial after a juror suffered a medical
emergency, which was denied.110  Although the United States Supreme Court has
invalidated a state statute allowing five-person juries,111 it has also held that a
criminal defendant may waive his or her right to a twelve-person jury.112 
Similarly, the Indiana Supreme Court has upheld a verdict from an eleven-person
jury when defense counsel agreed not to seat an alternate.113  The court of appeals
applied these precedents in Bex, upholding the verdict of five jurors based on
defense counsel’s agreement, finding the defendant had consented to counsel’s
decision by failing to object.114  

E.  Prosecutorial Misconduct Claims
Challenges to prosecutorial conduct come in many forms, although comments

made during closing argument seem to be especially popular fodder for appeal.115 
Justice David’s first opinion was unanimous and involved fairly

straightforward claims in a life without parole case.  In Delarosa v. State,116 the
defendant challenged the State’s comment in closing argument that “it would
have been great if [the defendant] had admitted” his guilt to police officers.117 
The court concluded that in context the statement did not refer to the defendant’s
failure to testify but rather suggested a confession to police was not necessary
because the defendant had already confessed to others.118  

The Rules of Professional Conduct prohibit lawyers from stating “a personal
opinion as to the justness of a cause, the credibility of a witness, the culpability
of a civil litigant or the guilt or innocence of an accused.”119  Prosecutors must be
especially careful when responding to defense counsel’s arguments that State’s
witness is telling the truth.  In Gaby v. State,120 the prosecutor crossed the line by
telling the jury, “I cannot and would not bring charges that I believe were false”
and that “I can tell you that with a guilty verdict on this case I will be able to
sleep fine tonight.  Just fine.  In fact, better than fine.  You will be able to also.”121 
The court of appeals found the comments were improper vouching because they
“were not based solely on reasons which arose from the evidence, but rather,

110. Id. at 350.
111. Id. at 351 (citing Ballew v. Georgia, 435 U.S. 223 (1978)).
112. Id. at 352 (citing Patton v. United States, 281 U.S. 276 (1930)).
113. Id. at 353 (citing Holliness v. State, 467 N.E.2d 4 (Ind. 1984)).  
114. Id. at 354.
115. See, e.g., Schumm, 2010 Recent Developments, supra note 26, at 1140-41 (discussing a

reversal based on the prosecutor showing a YouTube video during closing argument).  
116. 938 N.E.2d 690 (Ind. 2010).  
117. Id. at 696.  
118. Id.
119. IND. PROF. COND. R. 3.4(e).
120. 949 N.E.2d 870 (Ind. Ct. App. 2011).
121. Id. at 880.



2012] CRIMINAL LAW 1081

asserted a personal knowledge of the facts at issue.”122
In Emerson v. State,123 the prosecutor referred to the defendant as a “bully”

during voir dire, opening statements, and closing arguments.  Defense counsel
failed to object or request an admonishment, and the court found any misconduct
did not rise to the level of fundamental error.124  The prosecutor’s general
questions about bullying during voir dire could “help the prosecutor, as well as
defense counsel, determine whether evidence of bullying would negatively affect
any of the potential jurors’ ability to render an impartial verdict” and were
therefore “proper and relevant.”125  The court also found no misconduct based on
comments that the defendant “tried to bully his way out of” the initial stop and
later trial through aggressive behavior that could be viewed as bullying.126 
Finally, although the prosecutor’s request to “stand up to this bully” was deemed
improper, it did not make a fair trial impossible because it was a fleeting
comment and the jury was advised that counsel’s arguments were not evidence.127

F.  Bad Advice from Counsel Regarding Plea Agreements
In a pair of cases, the court of appeals considered challenges to guilty pleas

based on improper advisement of penal consequences.  The Indiana Supreme
Court has divided such claims into two categories:  (1) “claim[s] of intimidation
by an exaggerated penalty or enticement by an understated maximum exposure”
and (2) “claims of incorrect advice as to the law.”128 

The court of appeals considered a claim from the first category in Roberts v.
State,129 where a defendant charged with burglary and theft agreed to plead guilty
to both counts in exchange for the State not pursuing a motion to add a habitual
offender allegation.130  One of the convictions alleged in the proposed information
for the habitual offender allegation, however, was not the defendant’s; therefore,
the State could not have lawfully obtained the enhancement.131  Although a plea
agreement under these circumstances was certainly no bargain, the court of
appeals upheld the denial of post-conviction relief because Roberts knew the
alleged prior conviction was not his, and therefore “the State’s threat to pursue
the amendment to add the habitual offender count could not have reasonably been
Roberts’s main motivation for his decision to plead guilty.”132  

Addressing the second category in Springer v. State,133 the court of appeals

122. Id. at 881.
123. 952 N.E.2d 832 (Ind. Ct. App.), trans. denied, 962 N.E.2d 649 (Ind. 2011).
124. Id. at 837.  
125. Id. 
126. Id. at 837-38.  
127. Id. at 838.
128. Segura v. State, 749 N.E.2d 496, 504-05, 507 (Ind. 2001).
129. 953 N.E.2d 559 (Ind. Ct. App.), trans. denied, 962 N.E.2d 650 (Ind. 2011).
130. Id. at 561.
131. Id.   
132. Id. at 565.   
133. 952 N.E.2d 799 (Ind. Ct. App.), trans. denied, 962 N.E.2d 650 (Ind. 2011).



1082 INDIANA LAW REVIEW [Vol. 45:1067

reversed the denial of post-conviction relief when the defendant explained his
guilty plea was based on his “belie[f] he would die in prison if he did not
plead.”134  There, the twenty-six-year-old defendant was presented with a choice
between a plea agreement with a maximum sentence of 100 years or going to trial
with the prospect of 141 years, although the correct maximum would have been
“approximately 111 years.”135  Based on the erroneous advisement, the court of
appeals concluded the defendant “demonstrated at least a reasonable probability
that the hypothetical reasonable defendant would have elected to go to trial if
properly advised.”136

Somewhat related to these cases are post-conviction challenges to the
voluntariness of a guilty plea.  Although there is no federal constitutional bar to
accepting guilty pleas from defendants who simultaneously assert their
innocence,137 Indiana has long held that judges “may not accept a plea of guilty
when the defendant both pleads guilty and maintains his innocence at the same
time.  To accept such a plea constitutes reversible error.”138  This seemingly clear
rule becomes a bit murkier in accomplice liability cases.  In order to convict a
defendant as an accomplice, the defendant must have knowingly or intentionally
aided, induced, or caused another person to commit that offense.139  In
Huddleston v. State,140 although the defendant professed that he wanted to plead
guilty to murder, he “quite clearly and unequivocally stated during the factual
basis colloquy that he did not intend for [the victim] to be killed, nor did he know
or anticipate that [his accomplice] would kill [the victim].”141  The court of
appeals concluded the defendant’s statements were “an outright denial” of the
requisite mens rea for murder, and his later affirmative responses to the trial court
when asked if he was guilty of murder were not “sufficient to override his earlier
statement expressly denying the requisite culpability for murder.”142  Therefore,
the denial of his petition for post-conviction relief was reversed.143

G.  Crime or Not a Crime?
As documented in previous survey articles, challenges to the sufficiency of

evidence in a criminal case are often raised but frequently fail.  Reversal is more
common when an issue is framed as “a legal one with broader applicability than
the facts of the particular case.”144  This section begins with cases where the

134. Id. at 806.
135. Id.
136. Id. at 807.
137. See North Carolina v. Alford, 400 U.S. 25, 38 (1970).
138. Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983).
139. IND. CODE § 35-41-2-4 (2011).
140. 951 N.E.2d 277 (Ind. Ct. App. 2011).
141. Id. at 281.
142. Id.
143. Id.
144. Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 42 IND.

L. REV. 937, 962 (2009) [hereinafter Schumm, 2008 Recent Developments].



2012] CRIMINAL LAW 1083

appellate courts reversed for insufficient evidence and then turns to those where
the evidence was found sufficient.

1.  Poor Parenting Is Not Necessarily a Crime.—Parents or others with a
legal obligation to care for a dependent commit D felony child neglect if they
knowingly place “the dependent in a situation that endangers the dependent’s life
or health.”145  In Villagrana v. State,146 the father of a two-year child was
watching television and not paying attention when the mother of his child asked
him to watch the child while she ran errands.  At the next commercial he went to
the kitchen to feed the child but could not find her there or elsewhere in the
house.  He soon noticed the back door was open and went to search for her.  A
neighbor had found the child and called police and the Department of Child
Services.147  The court of appeals reversed the conviction, emphasizing “the entire
incident occurred within approximately twenty minutes” and the defendant’s
conduct was surely “negligent” but was not knowingly done, i.e., he was not
subjectively aware of a high probability that his daughter was placed in a
dangerous situation.148  

2.  Reasonable Discipline by Parents and Teachers.—A few years ago, the
Indiana Supreme Court set aside a mother’s conviction for battery of her child
based on reasonable discipline.149  In such cases the State must prove either “(1)
the force the parent used was unreasonable or (2) the parent’s belief that such
force was necessary to control her child and prevent misconduct was
unreasonable.”150  The court adopted a non-exhaustive list of six factors from the
Restatement (Second) of Torts that should be weighed.151  There, the court
concluded five to seven swats on the buttocks, arm, and thigh with a belt or
extension cord was not unreasonable when it left only temporary bruising and did
not require medical attention.152  

In a pair of cases applying Willis, the Indiana Court of Appeals found a
parent’s discipline unreasonable while finding a teacher’s discipline was
reasonable.  First, in Hunter v. State,153 a fourteen-year-old girl engaged in
worsening behavioral problems including having a friend forge her father’s name
on a permission slip for a school trip.  The father instructed his daughter to
remove her clothing down to her undergarments and go to the living room where
he struck her approximately twenty times with a belt on the back, arms, and
legs.154  A scab on her thigh and swollen finger remained three and a half months

145. IND. CODE § 35-46-1-4(a)(1) (2011).  
146. 954 N.E.2d 466 (Ind. Ct. App. 2011).
147. Id. at 468.
148. Id. at 469.
149. Willis v. State, 888 N.E.2d 177 (Ind. 2008).  
150. Id. at 182.  
151. Id.  
152. Id. at 183-84.
153. 950 N.E.2d 317 (Ind. Ct. App. 2011).
154.  Id. at 319.



1084 INDIANA LAW REVIEW [Vol. 45:1067

later.155  The court distinguished Willis in concluding the “arguably degrading and
long-lasting physical effects” made the discipline unreasonable.156  

In Barocas v. State,157 the court reversed a teacher’s conviction for battery
against a special needs student whose tongue she “flicked” with two fingers.158 
It agreed the force used by the teacher fell far short of that used in State v.
Fettig,159 where the court upheld a trial court’s dismissal of battery charges
against a gym teacher who slapped a student on the face.160  The court in Barocas
found it immaterial that the student “let out a wail” when flicked, finding no
authority for the State’s suggestion that the reasonableness of force can be
determined by the victim’s reaction to it.161

Although Hunter and Barocas were both challenges to the sufficiency of the
evidence brought after trial, other defendants have filed pretrial motions to
dismiss battery charges based on the privilege of reasonable discipline.162  Rarely
are criminal cases resolved by defense motions to dismiss, as highlighted by
another recent case where the Indiana Court of Appeals reiterated “it is an abuse
of discretion to dismiss a case pursuant to Indiana Code section 35-34-1-4(a)(5)
where the State has stated facts sufficient to constitute an offense.”163  

3.  Insufficient Evidence for Resisting Law Enforcement.—Resisting law
enforcement occurs only when done “forcibly.”164  Several cases have been
reversed because resistance was only passive or the purported force used by the
defendant was ambiguous.165  In Aguirre v. State, a divided court reversed a
conviction because the State did not present any evidence of threatening or
violent actions by the defendant during her encounter with police; rather, she only
“dove her hand into her purse” to answer a cell phone call from her mentally ill
son.166  Looking to the evidence most favorable to the verdict, though, Judge
Baker dissented because the officer testified “when she grabbed Aguirre’s hand
to place it in handcuffs, Aguirre pulled her hand away.”167  He concluded this was
sufficient evidence of resisting,168 similar to when the defendant “stiffened up”

155.  Id. at 321.
156.  Id.
157. 949 N.E.2d 1256 (Ind. Ct. App. 2011).
158. Id. at 1260-61.
159. 884 N.E.2d 341, 345 (Ind. Ct. App. 2008).
160. Id.
161. Barocas, 949 N.E.2d at 1260.
162. See, e.g., Fettig, 884 N.E.2d at 342.
163. State v. Gill, 949 N.E.2d 848, 850 (Ind. Ct. App.) (reciting two other bases for dismissal

of a criminal case including “a jurisdictional impediment to the conviction” and “any other ground
that is a basis for dismissal as a matter of law”), trans. denied, 962 N.E.2d 642 (Ind. 2011).  

164. IND. CODE § 35-44-3-3 (2011).  
165. See Aguirre v. State, 953 N.E.2d 593, 597 (Ind. Ct. App.), trans. denied, 962 N.E.2d 653

(Ind. 2011) (collecting cases).  
166. Id. at 596-97.
167. Id. at 597 (Baker, J., dissenting).  
168. Id.



2012] CRIMINAL LAW 1085

in an earlier case.169 
Aguirre highlights the potential conflict between refusing to reweigh

conflicting evidence and wearing blinders when confronted with pertinent,
uncontroverted evidence that favors the defendant.  For example, in reversing an
invasion of privacy conviction as summarized below, the Indiana Supreme Court
considered the respondent’s “mixed messages” of oral notice regarding a
protective order.170  

In Stansberry v. State,171 the defendant charged toward a police officer while
removing his clothing despite the officer’s threat to use pepper spray.172  Based
on the trial court’s comments at the end of a bench trial that it was “satisfied that
the attempted resisting was forcible,” the court of appeals held the defendant
could not be convicted of resisting law enforcement.173  The trial court had,
though, entered a conviction for “attempted resisting law enforcement,”174 which
did not fly either because the trial court had concluded the defendant’s “actions
fell short of the modest level of resistance necessary to sustain a conviction.”175 
Whether an attempted resisting law enforcement conviction could be pursued in
a future case remains in doubt, as the court of appeals observed that “almost any
action one takes toward thwarting law enforcement is necessarily one of an
attempt,” but a conviction requires “force.”176

4.  Failure to Register as a Sex Offender.—A detailed statutory scheme
governs the requirements of sex offenders to provide information for the sex
offender registry, and defendants who make material misstatements or omissions
can face felony charges. In Dye v. State,177 the court addressed the special
challenges presented by defendants who are illiterate and homeless.  There, the
defendant acknowledged many of his answers were incorrect because he did not
understand the sex offender registry forms.178  He was not assisted in completing
the forms, and he complied with the requirement that homeless registrants appear
in person before local law enforcement every seven days.179  Accordingly, the
court found insufficient evidence that he knowingly violated the registry
requirements.180  

5.  Violations of Protective Orders.—In a pair of cases, the Indiana Supreme
Court provided clearer parameters for adjudicating violations of protective orders,

169. Johnson v. State, 833 N.E.2d. 516, 518-19 (Ind. Ct. App. 2005).
170. Tharp v. State, 942 N.E.2d 814, 818 (Ind. 2011).
171. 954 N.E.2d 507 (Ind. Ct. App. 2011).
172. Id. at 509.
173. Id. at 511-12.
174. Id. at 509.
175. Id. at 512.
176. Id.
177. 943 N.E.2d 928 (Ind. Ct. App. 2011).
178. Id. at 931.  
179. Id.  
180. Id.



1086 INDIANA LAW REVIEW [Vol. 45:1067

a misdemeanor offense known as “invasion of privacy” in Indiana.181  In Joslyn
v. State,182 the court emphasized that protective orders need not be properly
served under the trial rules in order to secure a conviction for invasion of privacy,
which simply requires a knowing or intentional violation of an order.183  There,
the defendant received a copy of the protective order at his home from a process
server but was not sent a copy by first-class mail as required by Trial Rule
4.1(B).184  Nevertheless, Joslyn’s statements to police and trial testimony about
his awareness of the protective order and its terms were sufficient to prove he
knowingly violated the order.185  

In Tharp v. State,186 the court applied the rule from Joslyn, reiterating that
oral notice can be sufficient, “even when it comes from someone other than an
agent of the State if it includes adequate indication of the order’s terms.”187 
There, the only evidence the defendant knew of the protective order came from
his girlfriend telling him about the order “at the same time she told him it was no
longer valid.”188  Emphasizing the importance of respondents being given an
“adequate opportunity to know that they have been enjoined,” and understanding
“what is covered by the injunction,” the court found the “mixed messages”
insufficient for a conviction.189

Joslyn and Tharp offer useful guidance to lawyers and lower courts, but the
issue of knowledge will likely remain a point of contention in many cases when
the notice requirements of the trial rules are not followed.  Although Joslyn offers
clear evidence of knowledge through admissions by the respondent, in other cases
the protected person’s testimony will likely conflict with the respondent’s. 
Factfinders will need to determine not only who to believe but also whether the
respondent was provided adequate notice of the specific terms of the protective
order.  A vague statement that “I got a protective order on you” may not be
sufficient.

In some cases, though, direct contempt proceedings may be required instead
of an invasion of privacy charge.  In Thomas v. State,190 an ex parte protective
order was issued and the parties met in court a few weeks later where the
respondent told the protected person, “Stop calling me, fagot [sic].”191  The court
of appeals reversed the conviction for invasion of privacy, concluding “the
institution of direct contempt proceedings was the more appropriate” under the

181. See IND. CODE § 35-46-1-15.1 (2011).  
182. 942 N.E.2d 809 (Ind. 2011).
183. Id. at 811-12.  
184. Id. at 812.  
185. Id. at 813-14.
186. 942 N.E.2d 814 (Ind. 2011).
187. Id. at 818.
188. Id. at 817.  
189. Id. at 818.
190. 936 N.E.2d 339 (Ind. Ct. App. 2010), trans. denied, 950 N.E.2d 1198 (Ind. 2011).
191. Id. at 339.



2012] CRIMINAL LAW 1087

circumstances.192  Judge Bradford dissented, agreeing that “direct contempt
proceedings would have been the more efficient and preferred remedy,” but
finding “nothing in the statute that precluded the State from choosing to file the
invasion of privacy charges.”193

6.  Creepy Conduct.—Creepy conduct is not always criminal.194  Sexual
battery requires a touching intended to arouse sexual desires when the victim is
compelled to submit to the touching or “so mentally disabled or deficient that
consent to the touching cannot be given.”195  In Ball v. State,196 a woman awoke
to the defendant “kissing and licking her face.”197  Because “[s]leep is not
equivalent to a mental disability or deficiency for purposes of the sexual battery
statute,” the court reversed the D felony sexual battery conviction.198  The case
was remanded for entry of a Class B misdemeanor battery conviction because
“[e]vidence of a touching, however slight, is sufficient to support a conviction for
battery.”199

A case involving voyeurism, lies, and videotape, however, reached the
opposite result.  Sean Chiszar set up a video camera in his bedroom where he
attempted to tape himself having sex with his fiancée.200  His fiancée heard
“beeping sounds,” confronted Chiszar, and police were eventually called.201 
Chiszar was ultimately convicted of voyeurism, a Class D felony, which he
challenged on appeal on both vagueness and sufficiency grounds.

The base voyeurism offense requires peeping “into an area where an occupant
of the area reasonably can be expected to disrobe,” and the term “peep” is
separately defined as “any looking of a clandestine, surreptitious, prying, or
secretive nature.”202  In rejecting Chiszar’s vagueness challenge, the court of
appeals emphasized the crime is limited to areas where people are expected to
disrobe, which would not include living rooms, kitchens, or surprise birthday
parties, as the defendant posited.203  Moreover, the “crux of the statute is
consent.”204  The statute provides notice to persons of ordinary intelligence by its
limitation to only looking that is “clandestine, surreptitious, prying, or secretive

192. Id. at 341.
193. Id. (Bradford, J., dissenting).
194. See Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 41

IND. L. REV. 955, 981-83 (2008).
195. IND. CODE § 35-42-4-8(a) (2011).
196. 945 N.E.2d 252 (Ind. Ct. App.), trans. denied, 962 N.E.2d 640 (Ind. 2011).
197. Id. at 253.
198. Id. at 258.
199. Id.
200. Chiszar v. State, 936 N.E.2d 816, 819 (Ind. Ct. App. 2010), trans. denied, 950 N.E.2d

1212 (Ind. 2011).  
201. Id.
202. IND. CODE § 35-45-4-5(2011).  
203. Chiszar, 936 N.E.2d at 823-24.  
204. Id. at 823.  



1088 INDIANA LAW REVIEW [Vol. 45:1067

[in] nature.”205  “There can be no reasonable purpose for that kind of looking
since, by definition, it is without the other person’s knowledge, and, therefore, it
is without the other person’s consent.”206   

In addressing Chiszar’s sufficiency claim, the court rejected a narrow
interpretation of the word “into” and found it irrelevant whether Chiszar was
physically present in the bedroom.207  To find otherwise “would mean that a
conviction for voyeurism by the use of a video camera could only stand if the
video camera were set up at the doorway to a room or outside of the room looking
in.  That could not have been the Legislature’s intent.”208  Moreover, the court
was not persuaded that Chiszar’s fiancée had “impliedly consented to the video
taping since she was in a consensual sexual relationship with him.”209  Consent
to engage in sex is not tantamount to consent to be taped having sex.210  Chiszar’s
grabbing the video camera, running out of the bedroom, and repeated denials
further undermined any notion of consent.211  

Finally, Temple v. State212 provides another example of creepy conduct that
was found criminal where the twenty-six-year-old defendant exchanged text
messages with a fifteen-year-old neighbor to arrange a sexual rendezvous when
she could sneak out of her house.  The court interpreted the term “‘induce’ in a
manner consistent with its broad dictionary definition.”213  

7.  Public Intoxication Charges for Drunk Passengers.—In Moore v. State,214
a divided panel of the Indiana Court of Appeals reversed a conviction for public
intoxication entered against a passenger who was sleeping in a car pulled over by
police.215  The majority attempted to distinguish Miles v. State,216 which had held
a man in his tractor-trailer cab parked along a highway was in a public place for
purposes of the statute,217 comparing “the sole occupant of a running and
dangerously parked vehicle arrested at a time when a charge of operating while
intoxicated was not possible under such circumstances, versus a sleeping
passenger in a vehicle traveling upon a public road stopped for an equipment
violation.”218  Judge Vaidik dissented, reasoning that

the key determination is whether the vehicle is in a public place, and in
[Miles], the defendant was in a parked vehicle three or four feet from the

205. Id.
206. Id.
207. Id. at 830.
208. Id.
209. Id.  
210. Id.
211. Id.
212.  954 N.E.2d 513 (Ind. Ct. App. 2011).
213.  Id. at 515.
214. 935 N.E.2d 301 (Ind. Ct. App. 2010), vacated, 949 N.E.2d 343 (Ind. 2011).
215. Id. at 305-06.
216. 216 N.E.2d 847 (Ind. 1966).
217. Id. at 849.
218. Moore, 935 N.E.2d at 304.  



2012] CRIMINAL LAW 1089

traveled portion of a busy highway.  If being inside a vehicle on the side
of a road is in a public place, then being inside a vehicle on the road is
also a public place.219

She also noted the General Assembly had not amended the public intoxication
statute in response to Miles.220  Nevertheless, Judge Vaidik acknowledged the
troubling policy implications of discouraging “the practice of securing a
designated driver or a taxicab.”221

Because Moore conflicted with Miles, it was no surprise that the Indiana
Supreme Court quickly granted transfer.222  Its opinion, which affirmed the
conviction, though, did not grapple with the analytic underpinnings of Miles,
where the court did not engage in a discussion of the purpose of the statute or the
need to construe penal statutes strictly against the State.  In Miles, the supreme
court simply observed, “While there are few authorities on the subject, there is
some authority to uphold a conviction under this statute of a person in a motor
vehicle at the time of the arrest.”223  Rather, the Indiana Supreme Court majority
in Moore simply (1) “decline[d] the defendant’s request to reverse her conviction
on public policy grounds,” and (2) found her “accountability under the public
intoxication statute does not violate her personal liberty rights [to consume
beverages of choice] under the Indiana Constitution.”224 Justice Rucker dissented,
suggesting that Miles should be overruled and pointing to century-old precedent
holding that “[t]he purpose of the [law] is to protect the public from the
annoyance and deleterious effects which may and do occur because of the
presence of persons who are in an intoxicated condition.”225  

This continued criminalization of riding drunk as a passenger in a vehicle is
likely to generate a legislative response, although the paucity of appellate case
law suggests it has been applied rarely by police and prosecutors.  If police arrest
a drunk or suspended driver, it may be easier to arrest a drunk passenger for
public intoxication than to arrange for someone to pick up that person.  If there
is another sober driver in the vehicle, though, the car could be released to that
person.  At least one prosecutor recently declined to pursue a public intoxication
charge against a drunk passenger in a vehicle driven by his sober mother.226  The
prosecutor remarked, “I just think it’s good business to reward those who use
designated drivers.”227  

8.  Buying Drugs is a Crime (Even for Criminal Defense Lawyers).—Viewers

219. Id. at 306 (Vaidik, J., dissenting).  
220. Id.
221. Id. at 307.   
222. Moore v. State, 949 N.E.2d 343 (Ind. 2011).
223. Miles v. State, 216 N.E.2d 847, 849 (Ind. 1996) (citing Winters v. State, 160 N.E. 294

(Ind. 1928)).  
224. Moore, 949 N.E.2d at 345.
225. Id. at 346 (Rucker, J., dissenting) (quoting State v. Sevier, 20 N.E. 245, 246-47 (Ind.

1889)).
226. See John Tuohy, NFL Player Off Hook, INDIANAPOLIS STAR, July 8, 2010, at B6.
227. Id.



1090 INDIANA LAW REVIEW [Vol. 45:1067

of The People’s Court in the 1980s were offered a quip of sage advice at the end
of each episode:  “Don’t take the law into your own hands: you take ‘em to
court.”228  The lawyer/defendant in Schalk v. State229 could have benefitted from
that advice.  There, the court of appeals rejected a criminal defense lawyer’s
challenges to his conviction for possession of marijuana, which resulted from a
drug buy he orchestrated with a State’s witness in a pending drug case.230  “His
ostensible purpose was to prove that the witness, a confidential informant, was
actively dealing drugs and, thus, to discredit the witness who was scheduled to
testify against his client at trial.”231  This didn’t end well for him.  First, although
the Indiana Code provides a fairly broad definition of “law enforcement officer,”
the definition doesn’t include criminal defense attorneys.232  Thus, even if his
intent was to deliver the marijuana to a law enforcement officer for use in
defending his client at trial, his conduct was not immunized from prosecution.233 
Next, although citizens have a right to arrest others under certain circumstances,
that statute was of no aid to Schalk, who arranged an illegal drug buy and never
tried to arrest the seller.  Finally, the court was not persuaded by his assertion of
a “right to defend his clients” under the Sixth Amendment to the U.S.
Constitution and article 1, section 13 of the Indiana Constitution; attorneys, who
are officers of the court and take an oath to uphold the federal and state
constitutions, are not authorized to engage in criminal activity under those same
constitutions.234  

I.  A Rare Reversal on Insanity
Appellate courts defer significantly to the verdicts of juries and judges,

especially regarding the insanity defense.  Even when expert testimony has
unanimously concluded a person was insane, guilty verdicts have been affirmed
if lay testimony or “other sufficient probative evidence” suggested sanity.235  

In Galloway v. State,236 the Indiana Supreme Court offered an excellent
overview of the history and evolution of the insanity defense.  There, although
nonconflicting expert and lay testimony established the defendant was insane, a
trial court rejected the insanity defense because the defendant could continue to

228. Doug Llewelyn, IMDB, http://www.imdb.com/name/nm0515770/news (last visited June
5, 2012).

229. 943 N.E.2d 427 (Ind. Ct. App.), trans. denied, 962 N.E.2d 639 (Ind. 2011).
230. Id. at 431-32.
231. Id. at 428.  Although not mentioned in the opinion, Schalk’s plan could have been

difficult to carry through at trial in light of Indiana Rule of Professional Conduct 3.7, which
prohibits lawyers from acting as an “advocate at a trial in which the lawyer is likely to be a
necessary witness,” except under narrow circumstances.  

232. Id. at 430 (citing IND. CODE § 35-41-1-17 (2011)).  
233. Id. at 431.  
234. Id.
235. Galloway v. State, 938 N.E.2d 699, 710 (Ind. 2010), reh’g denied, 2011 Ind. LEXIS 349

(May 6, 2011); see, e.g., Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004).  
236. Galloway, 938 N.E.2d 699.



2012] CRIMINAL LAW 1091

be a danger to society due to the state’s inadequate mental health system.237  The
court emphasized “a person is either sane or insane at the time of the crime; there
is no intermediate ground.”238  Although one of the experts in the case submitted
a preliminary report opining the defendant was sane, he recanted that opinion
after learning critical facts on cross-examination.  Without a conflict in expert
testimony, lay testimony was necessary to establish sanity.  After a lengthy
discussion of the limited value of demeanor evidence, the court emphasized such
evidence “must be considered as a whole, in relation to all the other evidence.  To
allow otherwise would give carte blanche to the trier of fact and make appellate
review virtually impossible.”239  The court rejected the trial court’s findings,
including the defendant’s deterioration during trial, which is not probative of
sanity at the time of the offense.240  Perhaps most significantly, though, the court
made clear it was not appropriate “for the trier of fact to consider the condition
of our State’s mental health system” in rendering its verdict.241  Justices Rucker
and David joined Justice Sullivan’s opinion.

Chief Justice Shepard, joined by Justice Dickson, wrote an impassioned
dissent.242  Relying on the views of “our fellow citizens,” he disagreed with the
majority’s declaration that “it is not relevant what may happen as a result of this
reversal by appellate judges.”243  Rather than discussing or distinguishing the
precedent cited in the majority’s opinion, the dissent instead focused on “some
innocent future victim [being] placed at risk by this [c]ourt’s decision to second-
guess” the trial court.244  

J.  Sentencing Issues Under Appellate Rule 7(B)
Sentencing claims are among the most, if not the most, popular for defendants

to raise on appeal in Indiana.  They come in many varieties, but the robust  review
for “appropriateness” under appellate rule 7(B) is raised hundreds of times each
year.  

1.  Increasing Sentences on Appeal.—As discussed in detail in last year’s
survey,245 the Indiana Court of Appeals increased a sentence for the first time on
appeal in 2010 in Akard v. State.246  The court of appeals increased the ninety-
three-year sentence to 118 by focusing on the horrendous nature of the crime.247 
The court relied on the supreme court’s opinions in McCullough v. State,248 which

237. Id. at 703.  
238. Id. at 711.  
239. Id. at 714.  
240. Id. at 715.  
241. Id. at 716.  
242. Id. at 718 (Shepard, C.J., dissenting).
243. Id. at 719.  
244. Id. at 720.  
245. See Schumm, 2010 Recent Developments, supra note 26, at 1155-59.
246. 924 N.E.2d 202 (Ind. Ct. App.), aff’d in part, 937 N.E.2d 811 (Ind. 2010).
247. Id. at 211-12.
248. 900 N.E.2d 745 (Ind. 2009).



1092 INDIANA LAW REVIEW [Vol. 45:1067

made clear the power to review and revise sentences included the ability to
increase a sentence on appeal—but only when the defendant requested a sentence
reduction.249

Just a few weeks after granting transfer and hearing oral argument in Akard,
the supreme court unanimously vacated the increased sentence, emphasizing that
the prosecutor had requested a ninety-three-year sentence in the trial court and the
Attorney General had argued that sentence was appropriate on appeal.250  The
Akard opinion is a narrow one that largely begs the question of when an increased
sentence will be appropriate.  The supreme court has developed a rich body of
case law that applies coherent and consistent principles when decreasing a
sentence.251  In the absence of any principles for increasing sentences, though,
appellate counsel is hard-pressed to advise clients when they are at risk for
challenging a sentence.  For the time being anyway, the bar for an increase
appears to be a very substantial one that has not yet been met in the hundreds of
sentencing appeals since McCullough.  

Defendants who seek to insulate themselves from the possibility of an
increased sentence by challenging the sentence on only one count and waiving
review of the sentence imposed on other counts “to shield himself from the risk
of having his aggregate sentence revised upward on appeal” are out of luck under
Webb v. State.252  The court of appeals relied heavily on Cardwell v. State,253
where the supreme court made clear “appellate review should focus on the
forest—the aggregate sentence—rather than the trees—consecutive or concurrent,
number of counts, or length of the sentence on any individual count.”254  In Webb,
the defendant received a twenty-five year aggregate sentence when the maximum
possible sentence would have been forty-five years for one count of robbery as
a Class B felony, six D felony counts of fraud, two D felony counts of attempted
fraud, and an A misdemeanor count of driving while suspended.255  Although the
trial court appeared to have “exercised no leniency” in imposing the twenty year
maximum sentence for robbery, the aggregate sentence of twenty-five years
“could have been [imposed] in a number of different ways, and so long as that is
an appropriate sentence for Webb’s offenses as a whole,” the court found “no

249. Id. at 750-51.
250. Akard, 937 N.E.2d at 814.  As explained in last year’s survey, the Attorney General

requested increased sentences several times in the months after McCullough was issued.  Schumm,
2010 Recent Developments, supra note 26, at 1156.  This practice appears to have been curtailed
in the months following the supreme court’s opinion in Akard.

251. For example, in Smith v. State, 889 N.E.2d 261 (Ind. 2008), the court cited the
defendant’s minor criminal history, and poor mental health balanced against his violation of the
victim’s trust and psychological abuse in reducing a 120-year sentence to sixty.  Id. at 264.  The
opinion included a string citation of cases to demonstrate the revision was “consistent with this
[c]ourt’s general approach to [sentencing] matters.”  Id. at 264-65.

252. 941 N.E.2d 1082, 1087 (Ind. Ct. App.), trans. denied, 950 N.E.2d 1205 (Ind. 2011).
253. 895 N.E.2d 1219 (Ind. 2008).
254. Id. at 1225.
255. Webb, 941 N.E.2d at 1085, 1088.



2012] CRIMINAL LAW 1093

reason to meddle with the particular method used by the trial court.”256  
2.  Reducing Sentences on Appeal.—During the survey period, the court of

appeals issued 1,337 opinions in criminal cases, and nearly thirty percent (391
cases) included a claim for a reduced sentence under appellate rule 7(B).257 
Surprisingly, nearly thirty percent (114) of these cases with a sentencing claim
were appealed after the defendant entered into a plea agreement with the State of
Indiana.  Although many county prosecutors include explicit provisions in plea
agreement precluding an appeal of the sentence,258 some still do not.  Of the 391
opinions, less than seven percent (twenty-six cases) were reversed.  Reductions
sometimes occurred in cases with fairly graphic facts but weighty mitigation
regarding the defendant’s character.  For example, the defendant in Koch v.
State259 received a forty-five year sentence for offenses arising from a multi-state
abduction of his former girlfriend, which spanned Evansville to New Mexico and
included physical abuse, a shot to the ankle, and robbery of her debit card along
the way.260  The court of appeals reduced the sentence to thirty years,
emphasizing the defendant’s minimal criminal history (two misdemeanor
convictions nearly a decade earlier), his service in the military, and his mental
illness.261  Specifically, the court recounted the defendant “believed that someone
was trying to kill him, that there was a conspiracy against him, and that he was
hearing voices coming from the speakers of his vehicle causing him to rip the
speakers out.”262  

Beyond mental illness, other reductions by the court of appeals focused on
considerations such as the defendant’s age and even reduced sentences below the
advisory term.  For example, in Eiler v. State,263 the sentence appealed was near
the minimum—twenty-two years (with four years suspended) for a Class A
felony, which has a sentencing range of twenty to fifty years.  In modifying the

256. Id. at 1088.
257. This data came from Westlaw searches in the Indiana Court of Appeals database on

October 10, 2011, which were later tabulated and are on file with the Author.  The following search
yielded a total of 1337 opinions:  “DA(aft 09-30-2010 & bef 10-01-2011) & dn(cr).”  A narrowing
search then yielded 483 results, which were individually assessed to remove those in which a 7(B)
claim was not raised on appeal:  “(rule-7 inappropr!) & DA(aft 09/30/2010 & bef 10/01/2011) &
DN(cr).”

258. The supreme court upheld the enforceability of these provisions in Creech v. State, 887
N.E.2d 73 (Ind. 2008).  See Schumm, 2008 Recent Developments, supra note 144, at 944.

259. 952 N.E.2d 359 (Ind. Ct. App.), trans. denied, 962 N.E.2d 653 (Ind. 2011).
260. Id. at 364-65, 367.
261. Id. at 376.  
262. Id.  As other cases make clear, however, not every defendant suffering from a mental

illness will secure reduced sentence on appeal, especially when less than the maximum sentence
is imposed.  See, e.g., Washington v. State, 940 N.E.2d 1220, 1223-24 (Ind. Ct. App.) (affirming
thirty-five year sentence for Class A felony battery when the defendant’s “mental illness bears little
weight on our analysis of his character”), trans. denied, 950 N.E.2d 1202 (Ind. 2011).

263. 938 N.E.2d 1235 (Ind. Ct. App. 2010), reh’g denied, 2011 Ind. App. LEXIS 400 (Feb.
24, 2011).



1094 INDIANA LAW REVIEW [Vol. 45:1067

sentence to twenty-two years with ten years suspended, the court focused on the
defendant’s age (sixty), “his minimal criminal history, his ability to maintain a
job for the past twenty-five years, his taking responsibility for his actions, and
that he was the family’s main financial provider, as well as the fact that he sold
cocaine only to the same people with whom he used and that he did not profit
financially from doing so.”264  

During the survey period, the Indiana Supreme Court reduced sentences in
four cases.  In Sanchez v. State,265 Justice David authored an opinion reducing an
eighty-year sentence for child molesting convictions involving the defendant’s
two stepdaughters to forty years.  As to the nature of the offense, the opinion
noted the offenses were isolated incidents and the absence of “significant force”
or injury.266  Although the defendant had four prior unrelated arrests, none were
even remotely related to child molesting.267  The court concluded the aggravating
circumstances warranted an enhanced sentence for an A felony but not
consecutive sentences.268  Justice Dickson dissented in Sanchez, as he frequently
does when the court reduces a sentence.269  He emphasized the limited ability of
appellate judges to “fully perceive and appreciate the totality of the circumstances
personally perceived by the trial judge,” which should “restrain appellate revision
of sentences to only extremely rare, exceptional cases.”270  He also expressed
concern that appellate revisions could foster reliance and “serve as a disincentive
to the cautious and measured fashioning of sentences by trial judges,” who may
not believe their decisions are “essentially final.”271

Two of the three additional cases in which a sentence was reduced were also
child molesting cases, which often include particularly lengthy enhanced and
consecutive sentences.  In Horton v. State,272 a unanimous court reduced a 324-
year sentence to 110 years,273 which even with good time credit will likely be a
life sentence.274  There, the defendant had no adult criminal history but was in a

264. Id. at 1239.
265. 938 N.E.2d 720 (Ind. 2010).
266. Id. at 722.  
267. Id.
268. Id. at 723.
269. Id. (Dickson, J., dissenting); see also Smith v. State, 889 N.E.2d 261, 265 (Ind. 2008)

(Dickson, J., dissenting); Cardwell v. State, 895 N.E.2d 1219, 1227 (Ind. 2008) (Dickson, J.,
dissenting).

270. Sanchez, 938 N.E.2d at 723 (Dickson, J., dissenting).  
271. Id.
272. 949 N.E.2d 346 (Ind. 2011).
273. Id. at 349.
274. The date of the offense is unclear from the court’s opinion.  Defendants who are at least

twenty-one and commit A felony child molesting offenses against victims under age twelve after
June 30, 2008 are classified as credit-restricted felons and must serve nearly eighty-five percent of
their sentences instead of the fifty percent for those defendants convicted of other offenses who
maintain good behavior in prison.  See Upton v. State, 904 N.E.2d 700, 704-05 (Ind. Ct. App.
2009).  



2012] CRIMINAL LAW 1095

position of trust with the seven-year-old victim who was molested on a daily
basis and contracted herpes.275    

Justice David was not always in the majority in sentence reduction cases.  In
Pierce v. State,276 the three-justice majority reduced a 120-year sentence for
multiple counts of child molesting against the same ten-year-old victim to eighty
years.277  Although the defendant was in a position of trust and had a prior
conviction for child molesting, the majority noted the prior offense had occurred
eight years earlier and the defendant had no other criminal record.278  Justice
David, joined by Justice Dickson, emphasized the trial court “did exactly what he
was supposed to do—exercise discretion within the required statutory and case
law framework” and suggested concern that the majority opinion “is more akin
to a second guessing by this [c]ourt.”279  In addition to the prior conviction, the
dissent noted that “the molestations occurred over a span of one year and
involved fondling, oral sex, and intercourse on multiple occasions.”280

Outside the realm of child molesting, in Carpenter v. State281 the supreme
court cut a forty-year sentence in half for a defendant who was convicted of being
a felon in possession of a handgun and a habitual offender.282  The defendant had
stipulated to the latter enhancement, which punished his lengthy criminal history,
but offered a fairly benign nature of the offense:  he was found asleep in the
waiting room of a dental office “apparently drunk or overdosed.”283

K.  Other Sentencing Claims
The appellate courts also addressed a variety of other legal claims of

sentencing error involving minimum sentences for A felonies, enhancements,
limitations on crimes committed within the same criminal episode, and
restrictions on modifying D felonies to Class A misdemeanors.

From the basic realm, in Mauricio v. State,284 the Indiana Supreme Court
offered yet another reminder to counsel and trial courts that sentencing statutes
at the time of an offense are controlling, and the failure to argue a significant
statutory conflict may constitute ineffective assistance of counsel.285  Beginning
with Smith v. State,286 the court has held that a forty-year presumptive sentence
applies to murders committed between July 1, 1994, and May 5, 1995, a period

275. Horton, 949 N.E.2d at 348-49.  
276. 949 N.E.2d 349 (Ind. 2011).
277. Id. at 353.
278. Id. at 352-53.
279. Id. at 353 (David, J., dissenting).  
280. Id.
281. 950 N.E.2d 719 (Ind. 2011).
282. Id. at 721-22.
283. Id. at 719.
284. 941 N.E.2d 497 (Ind. 2011).
285. Id. at 499.
286. 675 N.E.2d 693 (Ind. 1996).



1096 INDIANA LAW REVIEW [Vol. 45:1067

when conflicting statutes were on the books.287  Because the court in Mauricio
could not say the trial court “clearly intended to sentence [the defendant] to fifty
years as a specific term rather than as the presumptive sentence,” the supreme
court held appellate counsel was ineffective for failing to raise the issue and
remanded the case for resentencing.288  

1.  Minimum Sentence for Class A Felonies.—Other cases have presented
statutory conflicts regarding the appropriate parameters of a sentence.  Class A
felonies generally carry a sentencing range of twenty to fifty years.289  Another
statute, however, provides other restrictions on sentences for A felony child
molesting.  Indiana Code section 35-50-2-2(b) provides that “the court may
suspend only that part of the sentence that is in excess of the minimum sentence,”
while section 2(i) restricts the court to suspending “only that part of the sentence
that is in excess of thirty . . . years” if the defendant was over twenty-one and the
victim was younger than twelve.290  The court of appeals held in Hampton v.
State291 that section 2(i) “dictates only the discretion trial courts have in
designating which portions of a defendant’s sentence may be suspended and does
not expressly set sentencing minimums,”292 but that trial courts retain discretion
“whether to sentence defendants to the advisory sentence, and require those so
sentenced to serve thirty years of executed time, or to sentence defendants to a
sentence below the advisory level under certain circumstances.”293  The Indiana
Supreme Court in Miller v. State,294 held that Hampton “correctly decided the
issue.”295  Because the trial court in Miller originally sentenced the defendant to
thirty years with ten suspended but later changed the sentence to thirty years
executed when the State erroneously asserted section 2(i) required a minimum
thirty-year sentence, the supreme court remanded the case to the trial court for
resentencing.296  

2.  Firearm Enhancements.—Other cases addressed enhancements, such as
the five-year sentence enhancement if a defendant knowingly or intentionally
“used” a firearm during the commission of certain delineated crimes, including
B felony criminal confinement.297  In Nicoson v. State,298 the majority upheld the
enhancement over the defendant’s double jeopardy and statutory challenges.299 
Criminal confinement is enhanced from a C to B felony if a person is “armed”

287. Id. at 696-98.
288. Mauricio, 941 N.E.2d at 499.
289. IND. CODE § 35-50-2-4 (2011).  
290. Id. § 35-50-2-2.
291. 921 N.E.2d 27, 30-31 (Ind. Ct. App.), trans. denied, 940 N.E.2d 821 (Ind. 2010).
292. Id. at 31.
293. Id. at 31 n.5.
294. 943 N.E.2d 348 (Ind. 2011).
295. Id. at 349.
296. Id. 
297. IND. CODE § 35-50-2-11 (2011).
298. 938 N.E.2d 660 (Ind. 2010).
299. Id. at 665.



2012] CRIMINAL LAW 1097

with a deadly weapon, but the section 11 enhancement requires more—the “use”
of a firearm in the offense.300  Justice Rucker, joined by Justice Sullivan,
dissented on double jeopardy grounds because the defendant was “armed” with
the firearm the entire time he was “using” it.301  Relying on Nicoson, the court of
appeals found no double jeopardy violation in Cooper v. State,302 where the
defendant was convicted of  reckless homicide and a five-year firearm
enhancement under Indiana Code section 35-50-2-11 was imposed.  In language
that rings more in statutory construction than state constitutional double jeopardy
jurisprudence, the court concluded:

[E]ven though the jury relied upon Cooper’s use of the shotgun for both
the underlying offense and the enhancement, the legislature’s intent is
clear that criminal offenses committed with firearms are to receive
additional punishment.  Moreover, if the legislature intended that
offenses resulting in serious bodily injury alleged to have been
committed with a firearm were to be excepted from the firearm
enhancement, it could have drafted the statute in that manner.303

3.  Conspiracies Are Not Crimes of Violence.—Although trial courts
generally have considerable discretion to impose consecutive sentences, Indiana
Code section 35-50-1-2(c) limits the total of consecutive terms of imprisonment
“arising out of an episode of criminal conduct” to the advisory sentence for the
next class of felony.304  Crimes of violence are excepted from the rule.305  In
Coleman v. State,306 the defendant was convicted of conspiracy to commit
robbery, a Class A felony, and possession of a firearm by a serious violent felon,
a class B felony, and sentenced to a total of sixty years.  The offenses were part
of the same episode of criminal conduct, and the defendant argued the sentence
should be limited to fifty-five years, the advisory sentence for murder, because
neither offense is listed as a crime of violence.307  The court of appeals agreed,
finding conspiracies “akin to attempts,” which the Indiana Supreme Court
previously held were not crimes of violence.308  “The legislature has been on clear
notice for at least ten years that Indiana courts will strictly construe the meaning
of ‘crimes of violence’ under Section 35-50-1-2, and that courts will not infer that
the legislature intended any unlisted offenses to qualify as such crimes.”309  

4.  Restrictions on Modifying D Felonies to Misdemeanors.—The difference
between a misdemeanor and felony conviction goes far beyond the sentencing

300. Id.
301. Id. at 666 (Rucker, J., dissenting).
302. 940 N.E.2d 1210 (Ind. Ct. App.), trans. denied, 950 N.E.2d 1208 (Ind. 2011).
303. Id. at 1216.
304. IND. CODE § 35-50-1-2 (2011).
305. Id.
306. 952 N.E.2d 377 (Ind. Ct. App. 2011).
307. Id. at 380.
308. Id. at 383 (citing Ellis v. State, 736 N.E.2d 731 (Ind. 2000)).  
309. Id.



1098 INDIANA LAW REVIEW [Vol. 45:1067

ranges of a maximum of one year in jail and three years in prison, respectively.310 
Misdemeanors are often seen as “college-aged high jinks or youthful indiscretions
that harmed no one,” while felony convictions “are met with much more
suspicion and caution.”311  One might think trial courts would be encouraged to
give defendants convicted of low level felonies an opportunity to have their
convictions later modified to a misdemeanor.  After all, as explained in Part I.C.,
many Hoosiers with D felony convictions may now have those records restricted
after waiting eight years and meeting certain conditions such as no additional
felony convictions.  But in State v. Brunner the Indiana Supreme Court reversed
a trial court’s modification of a pro se defendant’s request to change his past D
felony drunk driving conviction from 2000 to a Class A misdemeanor nine years
later, which the trial court had ordered because the felony conviction “was
preventing him from obtaining a second job.”312  The Indiana Supreme Court
reasoned that the trial court lacked statutory authority for the modification
because Indiana Code section 35-50-2-7(b) limits any such modification “to the
moment the trial court first entered its judgment of conviction and before the trial
court announced its sentence.”313  “Although it may be equitable and desirable for
the legislature to give a trial court discretion in modifying a conviction years later
for good behavior, we recognize at this time the legislature has not given any
such authority.”314

L.  Probation Revocation
A variety of issues sometimes arise when a defendant is placed on probation,

including issues surrounding the type of proof to establish a violation.  Generally
speaking, the State must prove a violation by a preponderance of the evidence.315 
In Runyon v. State,316 the supreme court considered the burden of proof when the
State seeks to revoke a defendant’s probation for failure to pay child support. 
Specifically, the court held the State “has the burden to prove (a) that a
probationer violated a term of probation and (b) that, if the term involved a

310. See generally IND. CODE § 35-50-2-7 (2011).
311. State v. Brunner, 947 N.E.2d 411, 417 (Ind. 2011), reh’g denied, 2011 Ind. LEXIS 696

(Aug. 19, 2011).  
312. Id. at 413.  
313. Id. at 416.
314. Id. at 417.  The court acknowledged that a separate statute, IND. CODE § 35-38-1-1.5

(2011), allows modifications within three years “if the person fulfills certain conditions,” which
includes a guilty plea and consent of the prosecutor.  Id.  The court applied this statute in reversing
a trial court’s modification in another case decided the same day as Brunner.  See State v. Boyle,
947 N.E.2d 912, 914 (Ind. 2011) (noting the State did not consent, more than three years had
passed, and “neither a copy of Boyle’s sentencing order is in the record, nor does the CCS entry
mention the possibility of modifying his sentence from a Class D felony to a Class A
misdemeanor”).  

315. IND. CODE § 35-38-2-3(e) (2011).
316. 939 N.E.2d 613 (Ind. 2010).



2012] CRIMINAL LAW 1099

payment requirement, the failure was reckless, knowing, or intentional.”317 
However, the probationer has the burden “to show facts related to an inability to
pay and indicating sufficient bona fide efforts to pay so as to persuade the trial
court that further imprisonment should not be ordered.”318  In Runyon, the court
upheld the revocation of probation because the defendant had “an opportunity to
present facts and explanation regarding his alleged resources, employment
circumstances, inability to pay, and efforts to make the required payments.”319  

Justice Sullivan dissented.  Although he agreed with the allocation of the
burden of proof, he opined that the State had not proven the failure to pay was
reckless, knowing, or intentional, and the defendant had established his inability
to pay resulted from his job loss, inability to find new employment, and
extremely low wages when he was working.320  

Two days after Runyon was issued, the court of appeals reversed a revocation
of probation because the State failed to prove that a defendant’s failure to pay
child support was willful.321  The probation violation in that case was filed a mere
forty-one days after the defendant was placed on probation.322  The probation
officer testified that he had not investigated whether the nonpayment was willful
or intentional, and the defendant testified that he was not employed and had not
been employed for more than three years.323  

Beyond the child support payment context, the court of appeals in Beeler v.
State,324 addressed the necessity of an evidentiary hearing when a CCS entry
noted an admission by the defendant.  The court found the entry is
“presumptively true” unless “it is shown to be otherwise.”325  Moreover, an
alleged error is generally waived for appeal when no objection is made in the trial
court, unless fundamental error is shown.326  Judge Crone dissented, concluding
the defendant had established fundamental error because the transcript “does not
contain even a single reference” to an admission.327  Going beyond the State’s
concession that “it would be a better practice for the trial court to record a
defendant’s admissions on the record,” the dissent opined “it was incumbent upon
the State to ensure that the admission was repeated on the record.”328

CONCLUSION

For more than two decades under the leadership of Chief Justice Shepard, the

317. Id. at 617.  
318. Id.  
319. Id. at 618.  
320. Id. (Sullivan, J., dissenting). 
321. Snowberger v. State, 938 N.E.2d 294 (Ind. Ct. App. 2010).  
322. Id. at 298.  
323. Id. at 297-98.
324. 959 N.E.2d 828 (Ind. Ct. App. 2011).
325. Id. at 830-31.
326. Id. at 830.
327. Id. at 831 (Crone J., dissenting).  
328. Id.



1100 INDIANA LAW REVIEW [Vol. 45:1067

Indiana Supreme Court has generally been receptive to many claims presented by
criminal defendants in non-capital cases.329  This survey period included relief for
defendants in the sentencing realm and a rare reversal based on insanity in a 3-2
opinion, but defendants did not succeed in most of the supreme court cases
summarized above.330  

For the first time in over a decade, the membership of the Indiana Supreme
Court changed in 2010, which could mean a shift in some of its jurisprudence. 
Justice David, who replaced Justice Boehm, has been a swing vote in some of the
criminal cases summarized above.  He has largely gone along with the majority
in reducing sentences and joined Justice Sullivan and Justice Rucker over a
strongly worded dissent by Chief Justice Shepard in an insanity defense case.  But
he also authored the court’s 3-2 opinion in Barnes, which included broad
language that led to a strong public reaction regarding the right to resist unlawful
entry into a home by police.  The most glaring example of the difference a new
justice can make comes from Hopper v. State,331 which was summarized in last
year’s survey and required trial courts to provide an advisement of the specific
risks of waiving counsel before pleading guilty.332  That 3-2 opinion was authored
by Justice Boehm over an impassioned dissent by Chief Justice Shepard, who was
joined by Justice Dickson.333  The Attorney General sought rehearing, which was
granted and resulted in a 3-2 opinion authored by Chief Justice Shepard and
joined by Justice David.334  The dissent aptly noted the rehearing opinion
“entertains and effectively grants the State's petition even though the State's claim
is that this [c]ourt’s original opinion was wrongly decided . . . making essentially
the same arguments it made before.”335

Shortly after the survey period ended, Chief Justice Shepard announced his
retirement, effective March 2012.  Then, in April 2012, Justice Sullivan
announced his retirement.  One might expect a further shift in approach and
perspective in cases summarized in next year’s survey, especially without the
Chief Justice’s leadership in the realm of appellate sentence review.

329. In capital cases the supreme court has often divided on 3-2 lines in rejecting claims. See
generally Joel M. Schumm & Paul L. Jefferson, Tribute to Justice Theodore R. Boehm, 44 IND. L.
REV. 347, 350 n.30 (2011).

330. Of the seventy-six criminal or civil opinions issued by the Indiana Supreme Court during
the survey period, Nicoson was one of only two that divided along so-called partisan lines with the
three justice appointed by Republican governors (Shepard, Dickson, and David) in the majority and
the two appointed by Democratic governors (Sullivan and Rucker) in dissent.  The other was Sloan
v. State, 947 N.E.2d 917 (Ind. 2011), where the majority held the statute of limitation for criminal
offenses is tolled when concealment is established “until a prosecuting authority becomes aware
or should have become aware of sufficient evidence to charge the defendant.”  Id. at 919.

331. 934 N.E.2d 1086 (Ind. 2010), aff’d on reh’g, 957 N.E.2d 613 (Ind. 2011).
332. Schumm, 2010 Recent Developments, supra note 26, at 1150-51.
333. Id.
334. Hopper, 957 N.E.2d 613.
335. Id. at 624 (Rucker, J., dissenting).