RECENT DEVELOPMENTS IN INDIANA CRIMINAL LAW AND PROCEDURE JOEL M . SCHUM M * Indiana’s appellate courts confronted a variety of significant issues during the survey period October 1, 2015, to September 30, 2016. The Indiana Supreme Court saw the end of Justice Dickson’s three decades of service in April and the appointment of Justice Slaughter in June. B oth the Indiana Supreme Court and1 the Indiana Court of Appeals addressed a wide range of issues that affect cases from their inception to their conclusion. Some of the most significant2 developments are explored below. I. SPEEDY TRIAL Both the U.S. and Indiana Constitutions broadly guarantee a criminal3 defendant’s right to a speedy trial, while Indiana Criminal Rule 4 provides specific deadlines on which many defendants rely in challenging excessive pretrial incarceration or long delays between arrest and trial. On the constitutional front, the Indiana Supreme Court found no due process violation in the State filing charges in 2013 for a murder committed in 1977 in Ackerman v. State. Despite the thirty-six year delay, the justices found no actual4 and substantial prejudice from the deaths of three potential witnesses in the defendant’s favor (the pathologist who performed the autopsy and two first responders at the scene of the death); that two other law enforcement personnel involved in the case no longer had any recollection of the event; and the unavailability of medical records reflecting two previous hospitalizations of the victim. 5 On the rule front, however, a defendant prevailed in Allen v. State. Indiana6 Criminal Rule 4(C) requires criminal defendants be brought to trial within a year unless the delay was caused by the defendant or court congestion. Allen7 reiterated the responsibility of the trial court and the State— not the defendant— to * 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. Supreme Court Justices, COURTS.IN.GOV, https://mycourts.in.gov/JR/Default.aspx (last visited May 23, 2017). 2. 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 retirement of Justice Dickson marks a near complete change in membership since 2010, as only Justice Rucker remains as a justice with more than six years of service. Id. 3. U.S. CONST. amend. VI; IND. CONST. art. 1, § 12. 4. 51 N.E.3d 171 (Ind.), cert. denied, 137 S. Ct. 475 (2016). 5. Id. at 190. 6. 51 N.E.3d 1202 (Ind. 2016). 7. Id. at 1203 (citing IND. R. CRIM. P. 4(C)). http://doi.org/10.18060/4806.1168 1242 INDIANA LAW REVIEW [Vol. 50:1241 bring cases to trial. Thus, even if the defendant’s failure to appear for trial8 contributed to a delay, “such delay extended only for a reasonable period of time within which the court could take action to reschedule a new trial date and secure transportation of the incarcerated defendant for trial.” Although “reasonable9 period” was not defined, the court made clear it “certainly did not extend for more than 306 days as would have been required for the defendant’s trial to comply with Rule 4(C)”— and therefore reversed and ordered the defendant discharged.10 The Indiana Court of Appeals also found Criminal Rule 4 violations in two cases. In Arion v. State, the incarcerated defendant moved for a speedy trial after11 a warrant for burglary and other charges was served on him in September 2013.12 In December the defendant filed a motion to dismiss because he had not been brought to trial within seventy days, which was denied, and in January 2014 he filed a motion to reconsider the motion and attached a copy of the warrant that had been served on him.13 The court of appeals found a Criminal Rule 4 violation and ordered the charges dismissed. It concluded the trial court should have known the defendant14 was being held on the charges when he moved for a speedy trial and was unconvinced by the State’s argument that the trial court “did not see” the warrant attached to the later motion. Finally, the delay in transporting the defendant15 could not be used to penalize the defendant when there was no explanation why any necessary paperwork was not completed. 16 Finally, Tinker v. State provides a reminder of the important duty trial courts17 and the State have to bring a defendant to trial. In Tinker, some trial dates passed without a CCS entry explanation, despite Indiana Trial R ule 77(B) requirement that “[t]he judge of the case shall cause Chronological Case Summary entries to be made of all judicial events.” The court ordered discharge because it could18 “not remand for the trial court to explain those delays at this late date, as the record already should have contained the support required to determine their proper assignment.”19 II. “R EFUSAL” TO TAKE C HEM ICAL TEST C LARIFIED W hen a police officer has probable cause to believe a motorist has operated 8. Id. 9. Id. at 1205. 10. Id. 11. 56 N.E.3d 71 (Ind. Ct. App. 2016). 12. Id. at 72. 13. Id. at 73. 14. Id. at 77. 15. Id. at 76. 16. Id. at 77. 17. 53 N.E.3d 498 (Ind. Ct. App. 2016). 18. Id. at 504. 19. Id. 2017] CRIM INAL LAW 1243 a vehicle while intoxicated, the officer is required by statute to offer the motorist an opportunity to submit to a chemical test. If the motorist “refuses to submit20 to a chem ical test, the arresting officer shall inform the person that refusal will result in the suspension of the person’s driving privileges.” 21 In Burnell v. State, the Indiana Supreme Court addressed what constitutes22 a “refusal” to submit to such a chemical test. The court observed that a “physical failure to cooperate can amount to a refusal” and held a refusal “occurs when the conduct of the motorist is such that a reasonable person in the officer’s position would be justified in believing the motorist was capable of refusal and manifested an unwillingness to submit to the test.” 23 In Burnell, the motorist was capable of refusal because she heard and understood the officer’s offer to take a chemical test. M oreover, a reasonable24 person in the officer’s shoes was justified to believe she was unwilling to submit to the test because she “stepped away from the officer twice” after initially saying “I guess I gotta can take it.” Thus, even though the evidence “present[ed]25 conflicting inferences,” the court upheld the trial court judgment of suspension because the defendant failed to carry her burden in appealing from a negative judgment. 26 III. D EFENSE D EPOSITIONS AND EXPERTS Although depositions are routinely conducted in criminal cases, lawyers representing indigent defendants are often expected to seek prior approval. In27 Hale v. State, the trial court denied the defendant’s request to depose two of the State’s witnesses “after they had pleaded guilty to pending charges and were disclosed as State’s witnesses.” The Indiana Supreme Court reversed, finding28 the defense’s request satisfied the three-part test for discovery in a criminal case: the request (1) identified the two witnesses specifically, (2) explained why they were material to the State’s case, and (3) the State made no show of a paramount interest in non-disclosure when “the motion was denied the same day it was filed, without explanation.” 29 The opinion offered “further guidance as to how to treat such motions in the 20. IND. CODE § 9-30-6-2(a) (2016). 21. Id. § 9-30-6-7(a). 22. 56 N.E.3d 1146 (Ind. 2016). 23. Id. at 1150-51. 24. Id. at 1151. 25. Id. 26. Id. 27. Hale v. State, 54 N.E.3d 355, 357 (Ind. 2016). Although not discussed in the opinion, some Indiana counties have public defender agencies with their own budgets, which allow lawyers considerably more autonomy to pay expenses like depositions and experts without seeking court approval. 28. Id. at 358. 29. Id. (applying Dillard v. State, 274 N.E.2d 387, 392 (Ind. 1971)). 1244 INDIANA LAW REVIEW [Vol. 50:1241 future.” A ll three requirements “should be administered so as to maximize pre-30 trial discovery,” and, as to the third requirement, courts “must grant the request” without a showing of “paramount interest in nondisclosure.” The justices noted31 some concerns regarding materiality (the second part of the test), specifically that trial testimony is generally briefer than deposition testimony, defendants could use depositions “as a harassment technique” without “any real expectation of obtaining new information,” and depositions used as a fishing expedition could impede rather than promote the administration of justice.32 The opinion concluded that in future cases trial courts should issue factual findings addressing the three-part test because trial judges are “in the best position to consider the sincerity of the parties’ arguments regarding the three- part test, as well as the overall costs associated with the proposed depositions, and potential alternatives that may better promote pre-trial efficiency of the case.”33 The court of appeals addressed a similar issue in Schuck v. State, in which34 a trial court denied a defendant’s motion for public funds for investigation expenses. Fundamental fairness entitles “an indigent defendant to an adequate opportunity to present his claims fairly within the adversary system.” However,35 “[a] court is not required to fund any and all experts the defense believes might be helpful.” The key inquiry is “whether the services are necessary to provide36 an adequate defense and whether the defendant specifies precisely how he would benefit from the requested expert services.” 37 In Schuck, private attorneys agreed to represent the defendant pro bono in a murder case, provided the trial court would approve funds to hire an investigator to question a witness who may have committed the crime. The attorneys38 believed the investigator was necessary because the attorneys lacked expertise in criminal cases and were afraid they would be forced testify at trial in violation of Indiana Rule of Professional Conduct 3.7 if they were the only ones to question the witness. Even though the defendant eventually pleaded guilty, the court39 nevertheless held the trial court improperly denied funds for the investigator.40 The opinion made clear the attorneys were not required to secure preapproval from the county public defender’s office before asking the trial court for public 30. Id. at 359. 31. Id. (emphasis omitted) (quoting Dillard, 274 N.E.2d at 393). 32. Id. at 359-60. 33. Id. at 360. In a footnote, the opinion noted alternatives to depositions that provide similar benefits, citing local rules from counties that permit “sworn tape-recorded interview[s],” and a rule that prohibits court-appointed counsel from using “private reporting firms” without the court granting leave for good cause. Id. at 360 n.6. 34. 53 N.E.3d 571 (Ind. Ct. App. 2016). 35. Id. at 574 (quoting Scott v. State, 593 N.E.2d 198, 199 (Ind. 1992)). 36. Id. (quoting Tidwell v. State, 644 N.E.2d 557, 560 (Ind. 1994)). 37. Id. (quoting Tidwell, 644 N.E.2d at 560). 38. Id. at 572-74. 39. Id. at 573-74. 40. Id. at 576. 2017] CRIM INAL LAW 1245 funds. Indiana Public Defender Comm ission’s Standard for Indigent Defense Services in Non-Capital Cases, Standard N, addresses when a person has hired private counsel but cannot afford to pay for an investigator necessary to prepare a defense and does not require consent of the public defender. The court41 reversed and remanded for the trial court to determine the amount of public funding that should be awarded to reimburse the attorneys.42 IV. JURY ISSUES Although a small fraction of Indiana criminal cases are resolved by jury trials, those relatively few cases generate a great deal of case law involving a wide range of issues from securing the jury trial, arguments of counsel, jury instructions, and the jury’s deliberations. A. Personal Waiver In Horton v. State, the defendant “merely remained silent while his attorney43 requested a bench trial on the second phase of a bifurcated trial.” The justices emphasized the requirement of a “personal waiver” is “rooted in Indiana Code section 35-37-1-2 and longstanding precedent” to ensure that felony prosecutions “will not proceed to a bench trial against the defendant’s will by demanding direct evidence that waiver is the defendant’s choice.” Because the defendant’s44 silence fell “well short of personal waiver, the trial court committed fundamental error in proceeding to a bench trial.”45 The court of appeals applied Horton’s personal waiver requirem ent from a bench trial to the guilty plea context in Saylor v. State. There, the defendant did46 not personally waive his right to a jury trial for a habitual offender charge; trial counsel telling the judge his client is waiving the right is not sufficient.47 Therefore, the court vacated the habitual offender enhancement and remanded the case for a new trial on that charge.48 B. Prosecutor’s Comments During Closing Argument Although claims of prosecutorial misconduct can arise in a variety of settings, they appear most common during closing arguments of jury trials. In M iles v.49 41. Id. at 576. 42. Id. 43. 51 N.E.3d 1154, 1155 (Ind. 2016). 44. Id. at 1160. 45. Id. at 1155. 46. 55 N.E.3d 354 (Ind. Ct. App.), trans. denied, 62 N.E.3d 1203 (Ind. 2016). 47. Id. at 366. 48. Id. at 367. 49. Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 48 IND. L. REV. 1241, 1253-55 (2015). https://doi.org/10.18060/4806.0041 1246 INDIANA LAW REVIEW [Vol. 50:1241 State, the trial court interrupted a deputy prosecutor’s closing argument, which50 included a PowerPoint slide that suggested the defendant had a burden to explain what happened. The slide was not read to the jurors, but some may have read51 it. The trial court admonished the jury that the defendant was not required to52 “present any evidence to prove his innocence or to prove or explain anything.”53 Because the defendant did not move for mistrial, he was required to establish fundamental error. In light of the jury instruction on the presumption of54 innocence, the trial court’s admonition, and “the abundant evidence of guilt,” the court of appeals concluded the defendant had not demonstrated, “such an undeniable and substantial effect on the jury’s decision that a fair trial was impossible.” 55 As a final point, the court of appeals noted in a footnote that its “review of this issue has been hampered by the defendant’s failure to make the content of the slide part of the record at trial so that on appeal we might know what the jury may have read from the allegedly prejudicial slide.” In cases involving slides or other56 displays to the jury, trial counsel should ensure a photograph or electronic copy of the material is made part of the record. Establishing facts surrounding the length of time the m aterial was displayed to the jury may also be important to later appellate review. C. Jury Instructions The Indiana Supreme Court discussed jury instructions in three significant cases, ordering new trials based on erroneous instructions in two. First, Hernandez v. State involved a challenge to the denial of a defense57 request for an instruction on the affirmative defense of necessity. Long-standing58 decisional law requires a requested instruction on “any theory or defense which has some foundation in the evidence,” even if the evidence is weak and inconsistent, so long as there is some probative value to support it. Testimony59 at trial supported each of the six necessity factors, and “[e]ven if there is only a ‘scintilla’ of evidence in support of a criminal defendant’s proposed defense instruction, it should be left to the province of the jury to determine whether that evidence is believable or unbelievable.”60 The failure to instruct on the defense of necessity may have impacted the 50. 51 N.E.3d 305 (Ind. Ct. App.), trans. denied, 49 N.E.3d 107 (Ind. 2016). 51. Id. at 311-12. 52. Id. at 312. 53. Id. 54. Id. 55. Id. (quoting Jerden v. State, 37 N.E.3d 494, 498 (Ind. Ct. App. 2015)). 56. Id. at 311 n.2. 57. 45 N.E.3d 373 (Ind. 2016). 58. Id. at 374. 59. Id. at 376 (quoting Toops v. State, 643 N.E.2d 387, 389 (Ind. Ct. App. 1994)). 60. Id. at 378. 2017] CRIM INAL LAW 1247 jury’s verdict because the jurors could have found the defendant guilty even if they believed his testimony, which supported his lawful defense. Therefore, the61 error was not harmless and a new trial was ordered.62 In the second case, Keller v. State, the supreme court addressed the63 propriety of a jury instruction that defined “dwelling” in a burglary case of a vacant farmhouse. Dwelling is defined by statute as “a building, structure, or64 other enclosed space, permanent or temporary, movable or fixed, that is a person’s home or place of lodging.” In Keller, the trial court gave a more65 expansive definition, which included the following: “Any such place where a person keeps personal items with the intent to reside in the near future is considered a dwelling.”66 The majority held the added language improperly emphasized “a set of facts that would satisfy the statutory definition of a dwelling,” which “restricted the jury’s discretion in applying the statutory definition in light of all the admitted evidence about the farmhouse. This also misled the jury by encouraging it to single out certain facts while ignoring others that it may and should consider.”67 Finally, the court reiterated that the existence of language in appellate opinions “does not make it proper language for instructions to a jury,” especially language from sufficiency of the evidence cases “because the determination is fundamentally different.” 68 Justice M assa, joined by Chief Justice Rush, dissented, observing that the quoted language came from an appellate opinion that, “in no uncertain term s, identified a set of circumstances where a ‘dwelling’ would exist,” and reversal was not warranted simply because the trial court “made the judgment call” to add that language. The dissent suggested if the majority disagreed with the holding69 of the earlier case, “it could do so directly (rather than declining to reach the issue by limiting its holding to the jury instruction), and sustain the adequacy of the 61. Id. 62. Id. at 379. 63. 47 N.E.3d 1205 (Ind. 2016), reh’g denied, (Apr. 11, 2016). 64. Id. at 1208. 65. Id. at 1207 (quoting IND. CODE § 35-31.5-2-107 (2016)). 66. Id. 67. Id. at 1208. 68. Id. at 1209 (internal quotation marks and citations omitted). Shortly after Keller was decided, the court of appeals cited it in rejecting a challenge to a jury instruction that stated “[a] knowing killing may be inferred from the use of a deadly weapon in a way likely to cause death.” Miles v. State, 51 N.E.3d 305, 311 (Ind. Ct. App.), trans. denied, 49 N.E.3d 107 (Ind. 2016). The opinion summarized Keller as “holding language from appellate opinion that emphasized certain facts was improper for jury instruction and invaded the province of the jury, requiring reversal of conviction” but noted that Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000), had upheld a similarly worded instruction, that the jury could “infer intent to commit murder from the use of a deadly weapon in a manner likely to cause death or great bodily injury.” Miles, 51 N.E.3d at 311. 69. Keller, 47 N.E.3d at 1210 (Massa, J., dissenting). 1248 INDIANA LAW REVIEW [Vol. 50:1241 jury instruction given based on the state of the law at that time.”70 In a third case involving alcohol concentration equivalents, however, the supreme court upheld a challenged instruction. In Pattison v. State, the jury was71 instructed that it “shall presume” a person with at least a 0.08 alcohol concentration equivalent (ACE) at the time of a chemical test was driving with at least that ACE if the chemical test was performed within three hours. T he72 instruction concluded, “the presumption is rebuttable.” 73 The Indiana Supreme Court upheld the mandatory rebuttable presumption instruction, which is constitutional as long as it “maintains the State’s obligation to prove every element beyond a reasonable doubt.” It reasoned the instruction’s74 presumption did not relieve the State of its burden to prove the defendant’s A CE “but merely negate[d] the need for live testimony explaining retrograde extrapolation” to determine his ACE at the time he was driving, which “makes pragmatic and scientific sense.” Because the presumption is rebuttable,75 defendants are free to present relevant evidence, such as the consumption of alcohol after driving or that the results were affected by the use of an inhaler.76 Finally, seemingly taking a different path from Keller, the court of appeals concluded in Cowans v. State, that “a defendant charged with resisting law77 enforcement by fleeing by vehicle would be entitled, if he so requested, to have a jury instruction regarding the definition of the word ‘flee.’” Concerned about78 the uncertainty regarding when someone must pull over police, the court wrote: If a motorist on a ten-lane highway sees flashing lights, is she required to “stop in her tracks” to avoid committing a felony? If a motorist is aware that there are criminals impersonating police officers in the area, and sees flashing lights on an isolated road at night, is he required to “stop right there” to avoid committing a felony? It would be an intolerable state of affairs if basic common sense, not to m ention the explicit advice of many police departments, turned ordinary citizens into felons.79 The court explained that “a person who drives to a location of greater safety for her or the officer, intending only to be in a location of greater safety, is not ‘fleeing’ from the police” because she is not attempting to “avoid arrest,” or “escape law enforcement,” or “prevent apprehension and punishment.” Drivers80 70. Id. 71. 54 N.E.3d 361 (Ind. 2016). 72. Id. at 363-64. 73. Id. at 364. 74. Id. at 367 (citing Francis v. Franklin, 471 U.S. 307, 314 (1985)). 75. Id. 76. Id. at 368-69. 77. 53 N.E.3d 540 (Ind. Ct. App. 2016). 78. Id. at 545-46. 79. Id. at 544-45. 80. Id. at 545. 2017] CRIM INAL LAW 1249 have some discretion in deciding when to pull over, which is ultimately an issue for the factfinder, who must consider “myriad facts: how long the driver continued, the speed, the use of hazard lights, the location, the weather, the surroundings, the presence of bystanders, the availability of places to stop, the credibility of witnesses, etc.” 81 Although not suggesting verbatim instructional language, the court made clear an instruction would explain that a person who is attempting to escape police, or attempting to unnecessarily prolong the time before he is stopped, would be fleeing. The definition should also explain, however, that if a reasonable driver in the defendant’s position would have felt unsafe to come to an immediate halt, and if the defendant took reasonable steps to increase the safety of the stop without unnecessarily prolonging the process, then the defendant was not fleeing. In short, the jury instruction would put the question of whether the driver had an “adequate justification” squarely before the factfinder.82 D. Jury Deliberations In 2014, the Indiana Supreme Court clarified the standards for addressing claim s of unauthorized contacts and communication with jurors in Ramirez v. State. The court explained: 83 Defendants seeking a mistrial for suspected jury taint are entitled to the presumption of prejudice only after making two showings, by a preponderance of the evidence: (1) extra-judicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or communications pertained to the matter before the jury. The burden then shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless. If the State does not rebut the presumption, the trial court must grant a new trial. On the other hand, if a defendant fails to make the initial two-part showing, the presumption does not apply. Instead, the trial court must apply the probable harm standard for juror misconduct, granting a new trial only if the misconduct is “gross and probably harm ed” the defendant. But in egregious cases where juror conduct fundamentally com prom ises the appearance of juror neutrality, trial courts should skip Currin’s two-part inquiry, find irrebuttable prejudice, and immediately declare a mistrial. At all times, trial courts have discretion to decide whether a defendant has satisfied the initial two-part showing necessary to obtain the presum ption of prejudice or a finding of irrebuttable 81. Id. at 546. 82. Id. 83. 7 N.E.3d 933 (Ind. 2014). 1250 INDIANA LAW REVIEW [Vol. 50:1241 prejudice.84 Although the cases applying Ramirez last survey period did not result in a reversal, this year a divided Indiana Supreme Court did find unauthorized85 communication to warrant a new trial. In W ahl v. State, a juror contacted the86 trial court to advise that the alternate juror, who was instructed not to participate in deliberations, had “immediately began to involve himself in the deliberations and began taking over the deliberations by leading discussions.” 87 The majority found the juror’s affidavit established the alternate’s participation “was an external influence that pertained to the case” and created a presumption of prejudice. Because the State did not rebut the presumption by88 showing the jury was nevertheless im partial, a new trial was ordered. Justice89 M assa dissented, noting the “incomplete record” and need to “know more” before ordering a new trial.90 But in Pribie v. State, the court of appeals quickly dispatched a challenge91 by a defendant in a case where a juror told the bailiff that she “knew people on both sides” of the case. The bailiff responded that they lived in a small, close92 community and asked whether the people the juror recognized were close friends. The juror said no, and the bailiff then asked whether it would prejudice93 her decision. The bailiff did not bring the issue to the judge’s attention and the94 defendant and counsel were not present for the investigation. The court of95 appeals found the bailiff’s actions “inappropriate” but harmless error because if the “proper procedure had been followed, the trial judge, rather than the bailiff, would have asked substantially the same questions as the bailiff.”96 V. PUBLIC TRIALS IN THE TW ITTER A GE The Indiana Code of Judicial Conduct requires judges, unless given prior approval by the Indiana Supreme Court, to prohibit “broadcasting, televising, recording, or taking photographs in the courtroom” and adjacent areas while court 84. Id. at 939 (citations omitted). 85. Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 49 IND. L. REV. 1023, 1032-34 (2016). 86. 51 N.E.3d 113 (Ind. 2016), reh’g denied, (May 17, 2016). 87. Id. at 115 (internal quotation marks omitted). 88. Id. at 117. 89. Id. 90. Id. (Massa, J., dissenting). 91. 46 N.E.3d 1241, 1251 (Ind. Ct. App. 2015), aff’d, 47 N.E.3d 629 (Ind. Ct. App. 2015), withdrawn from bound volume (June 22, 2016), trans. denied, 48 N.E.3d 316 (Ind. 2016). 92. Id. 93. Id. 94. Id. 95. Id. 96. Id. https://doi.org/10.18060/4806.01119 2017] CRIM INAL LAW 1251 is in session. In Compton v. State, the court of appeals rejected a defendant’s97 98 claim that allowing media to send live updates of the trial on Twitter violated his due process rights. The court declined to address whether Tweeting live updates99 was “broadcasting” under the judicial code because “broadcasting is not inherently prejudicial” and the defendant failed to show any specific prejudice to him considering the trial court’s instructions to jurors, the media, and the attorneys regarding the use of Twitter. 100 A few months later, in February 2017, the Judicial Qualifications Commission issued an advisory opinion on the subject, taking a similar view and concluding: means of instant communication, such as Twitter or microblogging, in the courtroom is not considered broadcasting under Rule 2.17 of the Code of Judicial Conduct, except in those limited situations when a user transmits video or audio of court proceedings or a link to videotaped court testimony. Further . . . a judge continues to act within the spirit of the Code of Judicial Conduct if he or she imposes reasonable restrictions on how and when an individual may use Twitter or other electronic communication tools during courtroom proceedings.101 VI. C RIM E OF N OT A C RIM E? As suggested in previous survey articles, challenges to the sufficiency of evidence in a criminal case are often raised by frequently fail. This section begins with cases where the appellate courts reversed for insufficient evidence and then turns to those where convictions were upheld based on the constitutionality of statues or a finding of sufficient evidence. A. Not a Crime 1. “Household or Family M ember” in Domestic Battery Statute.— Captioned “Family or household member,” Indiana Code section 35-31.5-2-128 lists several relationships that m ay, along with other required elements, enhance a battery conviction. At issue in Suggs v. State, were Indiana Code section 35-31.5-2-102 128(a)(4), “is related by blood or adoption to the other person,” and Indiana Code section 35-31.5-2-128(a)(5), “is or was related by m arriage to the other 97. IND. CODE JUD. CONDUCT R. 2.17. 98. 58 N.E.3d 1006 (Ind. Ct. App.), trans. denied, 64 N.E.3d 1205 (Ind. 2016). 99. Id. at 1009-10. 100. Id. at 1011-12. 101. Advisory Opinion #1-17, at 4, http://www.in.gov/judiciary/jud-qual/files/jud-qual-adops- 1-17.pdf (last visited May 12, 2017). 102. 51 N.E.3d 1190 (Ind. 2016). 1252 INDIANA LAW REVIEW [Vol. 50:1241 person.” Although the statute does include in-laws, use of the term “related by103 marriage” was not “intended to include an infinite variety of relationships whose only connection is a marriage or series of marriages identified somewhere on the remote branches of a family tree.” The victim was “the sister of a brother who104 was once married to the defendant’s aunt”; thus, although “related by blood to her own brother and related by affinity to her brother’s wife (the sister of Suggs’ mother), she is not related by blood or affinity to Suggs.” Concluding that the105 General Assembly intended “to em ploy the term in its commonly understood meaning namely, related by ‘affinity,’” the justices reversed. 106 2. Feticide Does Not Apply to Women Ending a Pregnancy.— In P atel v. State, a woman who took abortion-inducing medication to terminate her107 pregnancy was convicted of feticide in the first case in Indiana in which the State “used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion.” The court of appeals noted that prior Indiana108 Supreme Court precedent had held “illegal abortions are governed by ‘the109 provisions regulating abortion’ (now in Title 16), and not the feticide statute (still in Title 35).” The court could not conclude the General Assembly “intended for110 the specific provisions and lesser penalties in Indiana Code Section 16-34-2-7 to be subsumed by the general and more punitive feticide statute.” Finally,111 rejecting the State’s reading of the statutes, the court found it would be “illogical to presum e that our legislators specifically exempted pregnant women from prosecution for those types of abortion they found to be most odious while allowing prosecution of pregnant women for other types of abortions pursuant to the feticide statute,” concluding “the legislature never intended the feticide statute to apply to pregnant women in the first place and therefore never saw the need to create an exception.”112 3. Lack of Proximate Cause for Police Officer’s Injuries.— In M oore v. State, the defendant challenged his felony resisting law enforcement conviction113 103. Id. at 1193. 104. Id. at 1194. 105. Id. at 1192, 1195. 106. Id. at 1195. 107. 60 N.E.3d 1041 (Ind. Ct. App. 2016). 108. Id. at 1058. 109. Id. (citing Baird v. State, 604 N.E.2d 1170 (Ind. 1992)). 110. Id. at 1059. 111. Id. 112. Id. at 1061-62. The opinion also reduced a Class A felony conviction for neglect of a dependent to a Class D felony. Id. at 1062. The defendant’s conduct before the birth of her child could not be considered, and expert testimony on the possibility of survival with earlier treatment fell short of satisfying the State’s burden to prove that her failure to provide medical care resulted in the baby’s death. Id. at 1053-54. 113. 49 N.E.3d 1095, 1108 (Ind. Ct. App. 2016), trans. denied, No. 49A02-1505-CR-321, 2017] CRIM INAL LAW 1253 because it was elevated based on injury to the police officer who fell while chasing him. The majority found earlier precedent “troubling” because it had114 not framed the issue in terms of proximate cause, and “causation for purposes of a criminal conviction must be proximate, rather than contributing.” Although115 the injured officer “would not have received his injury if he had not pursued” the defendant, the “actual cause” of the fall was “not clear from the record” and the defendant “did not put [the officer] in a position where his only option was to suffer injury.” Because there was insufficient evidence to support causation of116 the injury, the case was remanded for entry of conviction as a Class A misdemeanor.117 Judge Bradford dissented, noting the trial court’s role as fact-finder and concluding “it is not unreasonable to anticipate that a consequence of fleeing from the police would be that an officer could fall and be injured during the ensuing chase.”118 B. Case Upholding Convictions or Criminal Code Sections 1. Synthetic and Look-Alike Drugs.— In Tiplick v. State, the Indiana119 Supreme Court rejected several constitutional challenges to Indiana’s synthetic and look-alike drug statutes. First, in rejecting a vagueness challenge to the synthetic drug statute, the court reas1oned that a person with ordinary experience and knowledge may not k n o w “ w h a t [ ( 1 – ( 5 – f l u o r o p e n t y l ) i n d o l – 3 – y l ) - ( 2 , 2 , 3 , 3 - tetramethylcyclopropyl)methanone] is made of, but that is not the test; rather, it is whether a person of ordinary intelligence would understand his conduct was proscribed.” But “an ordinary H oosier, armed with this chemical formula for120 XLR11, could determine through appropriate testing whether he was attempting to sell any products containing it,” which is what is required of penal statutes.121 Nor was the court persuaded that the statutory scheme presents a “statutory maze” that prevents a person of ordinary intelligence from being able to discover which conduct is proscribed. “Synthetic drug” is defined in section 321, which122 “names the Section 4.1 emergency rules as the only additional source for prohibited substances, and Section 4.1(c) describes where to look for those 2017 WL 237751 (Ind. Jan. 12, 2017). 114. Id. at 1098. 115. Id. at 1108. 116. Id. 117. Id. 118. Id. at 1109 (Bradford, J., dissenting). 119. 43 N.E.3d 1259 (Ind. 2015). 120. Id. at 1263. 121. Id. 122. Id. 1254 INDIANA LAW REVIEW [Vol. 50:1241 published rules,” based on statutory procedures. Rather than a “maze,” the123 statutes are “a chain with three links— three discrete statutes which give clear guidance as to how to find everything falling within the definition of ‘synthetic drug’ under Section 321.”124 As to the look-alike statutes, the court acknowledged that the terms “substance,” “dosage unit,” “consistency,” “control,” and “nature” are undefined. Nevertheless, it found “there is no construction of these phrases125 which would ‘embrace a vast assortment of very acceptable and even salutary conduct that is clearly not criminal in nature,’ thus rendering the statute unduly vague despite inclusion of a specific intent requirement.” 126 Finally, the unanimous opinion concluded as a matter of first impression that the General Assembly may delegate rule-making power to an administrative agency even if violation of such rules would result in penal sanctions.127 Specifically, the Pharmacy Board “has merely been given the power to determine, via emergency rule, whether additional substances should qualify as ‘synthetic drugs’ under Section 321”; the “rules are expressly incorporated into Section 321,” which means “disobedience is in violation of the statute, and not of a rule of the ministerial board”; and the Pharmacy Board can only exercise its power when a substance “(1) has been scheduled or emergency scheduled by the United States Drug Enforcement Administration; or (2) has been scheduled, emergency scheduled, or criminalized by another state.” 128 2. Indiana’s RIC O (C orrupt Business Influence) Statute.— Indiana’s Racketeer Influenced and Corrupt Organizations (“RICO”) Act requires “a pattern of racketeering activity,” which is defined by statute as “engaging in at least two (2) incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics that are not isolated incidents.”129 In Jackson v. State, the Indiana Supreme Court acknowledged differences130 between the federal and Indiana RICO Acts, noting under the Indiana statute “the State is not required to prove that racketeering predicates am ount to or pose a threat of continued criminal activity.” The opinion acknowledged that two131 earlier appellate opinions had read a “continuity requirement” into the statute and 123. Id. at 1264. 124. Id. 125. Id. 126. Id. at 1265 (quoting Brown v. State, 868 N.E.2d 464, 468 (Ind. 2007)). 127. Id. at 1267. 128. Id. at 1269 (internal quotation marks and citations omitted). 129. IND. CODE §§ 35-45-6-1(d), 6-2(2) (2016). 130. 50 N.E.3d 767 (Ind. 2016). 131. Id. at 771. 2017] CRIM INAL LAW 1255 disapproved those cases.132 T he plain language of the Indiana statute requires proof that two or m ore predicate criminal acts were “not isolated,” and thus “continuity” remains a relevant consideration. The opinion candidly acknowledged it had not provided133 “a precise formulation on what proof will suffice.” In some cases “proving that134 two or more criminal incidents are not isolated will be straightforward, as the very nature of the crimes will suggest that they are not sporadic.” But in others135 proof will be “more elusive, perhaps indicating that the State is overreaching in its attempt to obtain a conviction under the Indiana RICO Act.” Thus “future136 case law will shape and bring clarity to the concept of ‘not isolated.’”137 Applying these principles in Jackson, the court affirmed the corrupt business influence conviction against a defendant who acquired money “from multiple armed robberies.” The defendant “orchestrated” the “planning and138 coordination” of three “increasingly sophisticated” robberies during the same month, allowing a jury to “reasonably infer from the nature of the crim es that they were not isolated or sporadic.”139 3. Conditional Threat Language Constitutes Intimidation.— Indiana’s intimidation statute requires proof of a threat “with the intent . . . that the other person be placed in fear of retaliation for a prior lawful act.” Some Indiana140 appellate cases had found insufficient evidence when anger, conditional language, 132. Id. at 775 (disapproving Waldon v. State, 829 N.E.2d 168 (Ind. Ct. App. 2005); Kollar v. State, 556 N.E.2d 936 (Ind. Ct. App. 1990)). 133. Id. at 776. 134. Id. 135. Id. 136. Id. 137. Id. 138. Id. 139. Id. at 769-70, 777. The court of appeals, however, reversed a conviction in its first case to begin bringing “clarity to the concept of ‘not isolated.’” Id. at 776. In Robinson v. State, 56 N.E.3d 652 (Ind. Ct. App.), trans. denied, 59 N.E.3d 252 (Ind. 2016), the defendant merely shoplifted or attempted to shoplift similar items from the same store. The court reasoned there was no evidence of an ongoing criminal enterprise, no evidence of “extensive planning or increasing sophistication,” and no accomplices. Id. at 659. Moreover, “the crimes were isolated and sporadic.” Id. 140. IND. CODE § 35-45-2-1(a)(2) (2016). 1256 INDIANA LAW REVIEW [Vol. 50:1241 or threats were aimed at future action. In Roar v. State, however, the justices141 142 adopted a court of appeals opinion that disapproved of that approach and instead concluded: M ere use of conditional language in the course of communicating a threat does not vitiate the statute’s application when the factual predicate for the threat was a prior lawful act of the victim. Stated another way, the language a defendant uses in communicating a threat may be relevant to the fact-finder’s assessment of the defendant’s intent, but the language used is not the only relevant consideration.143 Thus, the intimidation conviction in Roar was upheld against a defendant who told an apartment manager who left an eviction notice that he would kill her if she returned to the property because he communicated a threat to the m anager with the intent to place her in fear of retaliation for a prior lawful act of leaving the notice. 144 4. “Fighting” Requires Physical Altercation.— In Day v. State, the Indiana145 Supreme Court addressed the meaning of “fighting” in the disorderly conduct statute. As an initial matter, the court concluded the statute applies to both public and private disturbances, and thus a defendant in a domestic encounter was “not immune from prosecution simply because he confined his ‘fighting’ to his house.” 146 B ut “fighting” includes only “physical altercations” and does not extend to “verbal altercations.” Because the word has both a broad and narrow meaning,147 the justices applied rules of statutory construction to adopt the narrow meaning.148 Based on the rule of lenity, “[j]udicially stretching” the term fighting to include commonplace verbal altercations “would deprive Hoosiers of fair notice and impinge upon our legislature’s power to define the law.” 149 Nevertheless, the court upheld the defendant’s conviction because a reasonable factfinder could have found that his “intentional, point-blank spitting” 141. See, e.g., Causey v. State, 45 N.E.3d 1239, 1242 (Ind. Ct. App. 2015) (“While the words ‘shoot’ and ‘kill’ may relate to injury, they do not necessarily relate to unlawful injury, as would be required to constitute a ‘threat’ under the statute.”); C.L. v. State, 2 N.E.3d 798, 801 (Ind. Ct. App. 2014) (“[W]hile C.L.’s threats against his grandfather are condemnable and reprehensible, the statements were not directed at an identifiable prior act. Rather, they each point to a specific future act.”). 142. 54 N.E.3d 1001 (Ind. 2016). 143. Roar v. State, 52 N.E.3d 940, 943 (Ind. Ct. App.), aff’d in part, vacated in part, 54 N.E.3d 1001 (Ind. 2016). 144. Id. at 944. 145. 57 N.E.3d 809 (Ind. 2016). 146. Id. at 813. 147. Id. 148. Id. 149. Id. at 814. 2017] CRIM INAL LAW 1257 on the victim was a physical altercation. 150 5. Refusal to Identify Conviction Affirmed.— In Weaver v. State, a man who151 had been stopped by the police and who was unable to produce his license engaged in an obdurate discussion with police about his name and only provided his date of birth after being handcuffed and questioned for sixteen minutes.152 Indiana’s statute criminalizes the refusal to provide a person’s “name, address, and date of birth” or a driver’s license in their possession. In a short per curiam153 opinion, the Indiana Supreme Court agreed with the dissenting court of appeals’ opinion of Judge Altice that the evidence was sufficient to support the conviction. 154 6. Enhanced Burglary Even Though O ccupant Recently Died.— Burglary is enhanced when breaking into a “dwelling,” which is defined by statute as “a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person’s home or place of lodging.” Decisional law has155 explained “burglary of a dwelling is not so much an offense against property as it is an offense against the sanctity and security of habitation.” 156 As a matter of first impression in Indiana, the court of appeals held in Howell v. State that “dwelling” includes “buildings and structures that have been occupied in the immediate past by a recently deceased resident,” an interpretation consistent with the purpose of providing “an increased penalty for burglarizing a dwelling because of the potential danger to the probable occupants.” 157 VI. A PPELLATE SENTENCE R EVIEW U NDER R ULE 7(B) For many years, substantive appellate sentence review under A ppellate Rule 7(B) was a one-way street, with the supreme court reducing a few sentences on transfer each year. That rule, which implements the Indiana Constitution’s158 power to review and revise sentences, allows appellate courts to revise a statutorily authorized sentence “if, after due consideration of the trial court’s decision, the Court find that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” As summarized in recent159 surveys, the Indiana Supreme Court took a different course in 2012 in issuing opinions reinstating the trial court’s sentence after vacating the court of appeals- 150. Id. 151. 56 N.E.3d 25 (Ind. 2016). 152. Id. at 26. 153. Id. (quoting IND. CODE § 34-28-5-3.5 (2016)). 154. Id. 155. IND. CODE § 35-31.5-2-107 (2016). 156. Howell v. State, 53 N.E.3d 546, 549 (Ind. Ct. App.), trans. denied, 54 N.E.3d 371 (Ind. 2016). 157. Id. at 550 (internal quotation marks and citation omitted). 158. See Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 46 IND. L. REV. 1033, 1057-62 (2013). 159. IND. R. APP. P. 7(B). 1258 INDIANA LAW REVIEW [Vol. 50:1241 ordered reductions; the court also became considerably less likely to grant transfer to reduce a sentence. 160 A. Sentences Reduced During last year’s survey period, the justices reduced just one sentence, in a drug case, while the court of appeals reduced nine in a variety of cases. During161 this year’s survey period, defendants were considerably less successful, with one reduction and one reinstatement at the supreme court and just three reductions at the court of appeals. 1. Indiana Supreme Court.— In short per curiam opinions during the survey period, the Indiana Supreme Court reduced one sentence and reversed the court of appeals’ reduction in another. First, in Eckelbarger v. State, the justices162 reviewed an aggregate sentence of thirty-two years for three counts of dealing methamphetamine (by delivery in two counts and manufacture in another) and possession in a fourth count. The three-justice majority reiterated that163 “[c]onsecutive sentences are not appropriate when the State sponsors a series of virtually identical offenses,” the reason for concurrent sentences imposed by164 the trial court on the two counts involving possession by delivery. B ut the165 opinion broke new ground in holding the sentences on the remaining counts— ”convictions supported by evidence seized pursuant to a search warrant procured based on the dealing methamphetamine by delivery counts”— must also be served concurrently. Thus, the sentence was cut in half, to sixteen years with166 four suspended.167 Justice Dickson, joined by Justice M assa, dissented, “believing the extraordinary relief of appellate sentence revision [was] not warranted in this case.”168 In the other case, the court reinstated the trial court’s sentence, reversing the court of appeals’ reduction. In Bess v. State, the defendant who asked his169 fourteen-year-old niece to sit on his lap and “kissed her on the cheek and tickled her” was convicted of Level 5 felony child solicitation. The trial court170 sentenced him to the advisory term of three years, all executed in prison, but the 160. Schumm, supra note 85, at 1047. 161. Id. at 1047-51. 162. 51 N.E.3d 169 (Ind. 2016). 163. Id. at 170. 164. Id. (quoting Gregory v. State, 644 N.E.2d 543, 544 (Ind. 1994)). 165. Id. 166. Id. 167. Id. at 170-71. 168. Id. at 171 (Dickson, J., dissenting). 169. 58 N.E.3d 174 (Ind.), corrected on reh’g, 65 N.E.3d 593 (Ind. 2016). 170. Although the original opinion stated the defendant “had her sit on his lap,” the Court clarified in response to a pro se petition for rehearing that he “solicited his niece to sit on his lap and she declined.” Bess v. State, 65 N.E.3d 593, 594 (Ind. 2016) (opinion on rehearing). 2017] CRIM INAL LAW 1259 court of appeals found the fully executed sentence inappropriate and ordered his release to serve the remainder of his sentence on probation. The Indiana171 Supreme Court affirmed the trial court’s sentence in a short per curiam opinion, concluding its “collective judgment” was that the sentence was not inappropriate and did not warrant revision. 172 Unlike the reductions of the Shepard-led court, which often reduced sentences in cases involving lengthy sentences imposed in child sex crimes cases, the current justices have shown little inclination to reduce sentences in173 cases with child victims— instead limiting reductions largely to cases involving young defendants or drug-related crimes.174 2. Court of Appeals.— As explained in recent survey articles, the Indiana Supreme Court’s decreased receptiveness to reducing sentences has been greeted by a similar trend in the court of appeals. Instead of reducing several sentences175 each year (twenty-six in one survey period, sixteen in another) at the beginning of this decade, one or two reductions have become more common in recent years. During this survey period, a net of three sentences were reduced,176 177 which is just over one percent of the 255 requests from criminal defendants.178 The only reduction in a published opinion was in Schaaf v. State. There, the179 defendant was sentenced to concurrent sentences for two offenses of dealing heroin. The A felony count involved a sale of just “8/100ths of a gram of180 heroin for $50.00” while within 1000 feet of a public park. The court181 characterized the offenses as “relatively minor as drug deals go: both sales were 171. Bess, 58 N.E.3d at 175. 172. Id. In a third case, the justices granted transfer simply to address the language used by the court of appeals in rejecting a sentencing challenge. Specifically, in Karp v. State, 61 N.E.3d 271 (Ind. 2016), the three-justice majority in the 178-word per curiam opinion did not share court of appeals’ assessment of the defendant’s “sentencing argument,” which had been described as “specious and not supported by cogent reasoning.” 173. Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 42 IND. L. REV. 937, 949 (2009). 174. Schumm, supra note 158, at 1047-48. 175. Id. at 1048. 176. Id. 177. As discussed above, the court of appeals reduced the sentence in Bess, but that reduction was vacated by the Indiana Supreme Court and therefore is excluded from the “net” count here. See supra notes 166-69 (discussing Bess). 178. The most recent year’s data came from a Westlaw search of Indiana Court of Appeals’ cases and is on file with the author. The author thanks Josh Woodward, Indiana University Robert H. McKinney School of Law Class of 2017, for his invaluable research assistance. The supreme court upheld the enforceability of plea provisions that waive a right to challenge a sentence on appeal in Creech v. State, 887 N.E.2d 73 (Ind. 2008). Although those provisions are now standard in many counties, they appear to be never or rarely used in other counties or before certain judges. 179. 54 N.E.3d 1041 (Ind. Ct. App. 2016). 180. Id. at 1045. 181. Id. at 1042. 1260 INDIANA LAW REVIEW [Vol. 50:1241 to a confidential informant, both were monitored by law enforcement, and both involved very small amounts of heroin.” Nevertheless, the “defendant’s182 criminal history would make below-advisory sentences inappropriately lenient” (he had been convicted of “six felonies and six misdemeanors”) while “the nature of his offenses render[ed] his above-advisory sentences inappropriately harsh.”183 Thus, the court of appeals reduced the sentence to the advisory term of thirty years.184 Schaaf is unlikely to be relied upon much in the future because the crimes occurred before the 2014 overhaul of the criminal code, which significantly reduced sentences for most drug offenses. A s the court explained in a footnote, had the defendant committed the offense three months later, he would have faced a sentencing range of just two to twelve years for the more serious charge.185 Sentences were also reduced in two memorandum (unpublished) decisions. First, unlike the offense-driven reduction in Schaaf, the reduction in Jackson v. State was grounded in both the nature of the offense and his character.186 A lthough involved in a “brazen robbery” of a store that endangered employees and customers, the defendant was an accomplice who did not enter the store and no evidence suggested the extent of his involvement in planning the offense or any knowledge that his co-conspirators would rob a customer in addition to the store.187 As to the defendant’s character, Jackson was only nineteen at the time of the offenses. M oreover, he “pleaded guilty as charged without any concessions188 from the State, and this was his first felony case as an adult.” The opinion189 concluded his the forty-year sentence, “which will consume most of his adult life,” was inappropriate but reduced it a mere five years to thirty-five years.190 Next, Hampsch v. State, involved a challenge to a six-year sentence for191 sexual misconduct with a minor in Knox County, which was ordered served consecutively to a twenty-year sentence involving the same victim in another county. A lthough concluding six years was not inappropriate, the court of192 appeals nevertheless ordered the sentence served concurrently with the other 182. Id. at 1045. 183. Id. 184. Id. 185. Id. at 1045 n.2. As the opinion appropriately notes, though, “our legislature enacted savings clauses that specifically prohibit courts from taking the statutory changes into consideration when addressing offenses committed before July 1, 2014.” Id. 186. No. 20A03-1510-CR-1693, 2016 WL 2626428 (Ind. Ct. App. May 9, 2016), trans. denied, 57 N.E.3d 816 (Ind. 2016) (unpublished disposition). 187. Id. at *3. 188. Id. at *4. 189. Id. 190. Id. 191. No. 42A01-1510-CR-1682, 2016 WL 2626619 (Ind. Ct. App. May 9, 2016) (unpublished disposition), trans. denied, 59 N.E.3d 252 (Ind. 2016). 192. Id. at *1-2, *4. 2017] CRIM INAL LAW 1261 offense. The defendant “committed both offenses in similar circumstances, less193 than a month apart, and both involved the same victim”; if the offenses had not occurred in different counties, “the trial court may well have ordered the sentences to be served concurrently.”194 3. Appellate Rule 7(B) Burden on Appellants.— Judges on the court of appeals are divided on the burden that a criminal defendant must meet for a sentence revision under Appellate Rule 7(B). The language of the rule authorizes reductions when the appellate court “finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”195 In Connor v. State, Judge R obb, joined by Judge Crone, cited numerous196 opinions supporting their view that Indiana courts have “frequently treated the two prongs as separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.”197 As the majority opinion explained, the reviewing court must consider both of those prongs in our assessment, and not as a requirement that the defendant must necessarily prove each of those prongs render his sentence inappropriate. In practice . . . we often exercise our review and revise power where only one of the prongs weighs heavily in favor of either affirming or revising the sentence.198 Judge Najam disagreed with the interpretation of Rule 7(B) but concurred in the result affirming the sentence. In his view, an appellant must demonstrate199 inappropriateness in light of both the nature of the offense and character of the offender. T o hold otherwise, “dilutes our standard of review.200 Appellate revision of a sentence under R ule 7(B) is intended to be an exception reserved for those rare cases in which the defendant can satisfy both conditions.” 201 B. Possibility of an Increase The power to review and revise sentences is not limited to reducing a sentence. The Indiana Court of Appeals increased a sentence for the first time on appeal in 2010 in Akard v. State, where the ninety-three-year sentence was202 193. Id. at *5. 194. Id. at *4. 195. IND. R. APP. P. 7(B). 196. 58 N.E.3d 215 (Ind. Ct. App. 2016). 197. Id. at 218-19. 198. Id. at 219 (internal footnote omitted). 199. Id. at 222 (Najam, J., dissenting). 200. Id. at 223. 201. Id. 202. 924 N.E.2d 202 (Ind. Ct. App.), aff’d in part, vacated in part, 937 N.E.2d 811 (Ind. 2010). 1262 INDIANA LAW REVIEW [Vol. 50:1241 raised to 118 based on the horrendous nature of the crime. Akard relied on the203 supreme court’s opinions in M cCullough v. State, which made clear the power204 to review and revise sentences included the ability to increase a sentence on appeal— but only when the defendant requested a sentence reduction.205 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 A ttorney General had argued that sentence was appropriate on appeal. T he206 opinion was a narrow one that largely begs the question of when an increased sentence will be appropriate. The supreme court’s rich body of case law had often applied principles when decreasing a sentence — but not for increasing207 sentences, leaving appellate counsel hard-pressed to advise clients when they are at risk for challenging a sentence. A lthough no majority opinion since Akard has increased a sentence on appeal, two court of appeals judges wrote separate opinions during the survey period expressing their willingness to do so. In Kunberger v. State the defendant challenged his two-and-a-half-year208 sentence for criminal confinement, strangulation, and domestic battery, with all but six months suspended. The majority refused to reduce the sentence, reviewing both the serious nature of the offenses and the defendant’s “flagrant violations of the no-contact order issued to protect the victim from further violence” as well as his statement to the victim in open court that he was “going to f* * *ing get [her]” at one hearing. 209 Judge Pyle dissented, believing this “behavior toward the victim, combined with his outrageous lack of respect for the court’s authority and his failure to abide by its no-contact order, warrant a fully executed sentence to the Department of Correction.”210 The other case involved a challenge to an aggregate six-year sentence for crim inal recklessness as a class D felony and failure to return to the scene of an accident resulting in serious bodily injury as a class D felony, which was 203. Id. at 211. 204. 900 N.E.2d 745 (Ind. 2009). 205. Id. at 750-51. 206. 937 N.E.2d at 814. As explained in the 2011 survey, the Attorney General requested increased sentences several times in the months after McCullough was issued. Joel M. Schumm, Recent Developments in Indiana Criminal Law & Procedure, 44 IND. L. REV. 1135, 1156 (2011). That practice severely curtailed in the months and years following the supreme court’s opinion in Akard. 207. 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 Court’s general approach to [sentencing] matters.” Id. at 264-65. 208. 46 N.E.3d 966 (Ind. Ct. App. 2015). 209. Id. at 974. 210. Id. at 975 (Pyle, J., dissenting). 2017] CRIM INAL LAW 1263 enhanced by an habitual offender adjudication. The majority declined to reduce211 the sentence, recounting that the defendant had participated in a fight before driving “aggressively” in parking lots where he struck three separate people, dragging one beneath his vehicle, resulting in injuries including a broken cheekbone and loss of two teeth. A s to character, the defendant had three prior212 juvenile adjudications and six felony convictions.213 Judge Crone wrote a separate concurring opinion, stating he “would have been inclined” to increase the sentence if the State had requested it. He noted214 the “senseless decision to mow down [one victim] with his car instead of leaving the area, the severity of [the victim’s] injuries, and [the defendant’s] significant criminal history.” Nevertheless, he “reluctantly” concurred in the result because215 the trial court “was the sole factfinder at [the defendant’s] trial and Appellate Rule 7(B) requires us to give ‘due consideration’ to its sentencing decision.”216 C. Death & Life Without Parole Sentences Affirmed Although sentencing is usually the sole function of trial judges, the jury plays a determinative role when the State seeks a sentence of death or life without parole. Two cases, directly appealed to the Indiana Supreme Court because they217 involved such sentences, addressed aspects of that statute. 218 In Gibson v. State, a defendant sentenced to death argued that his219 probationary status was trivial enough to render a death sentence unconstitutionally disproportionate because the underlying felony bore no relationship to the present murder. The court disagreed and affirmed the death220 sentence, noting both a distinct nexus between his probationary offense and his capital offense and that this “murder was the final act in a long string of [the defendant’s] probation violations.” 221 Viewing Indiana’s sentencing and parole statutes “in harm ony,” Clippinger v. State upheld the im position of consecutive life sentences without the222 possibility of parole. The court noted the defendant’s concession that the result223 211. Higgins v. State, No. 82A01-1409-CR-426, 2015 WL 5838150, at *2 (Ind. Ct. App. Oct. 7, 2015). 212. Id. at *5. 213. Id. 214. Id. (Crone, J., concurring). 215. Id. 216. Id. at *6. 217. IND. CODE § 35-50-2-9(e) (2016) (“If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly.”). 218. IND. R. APP. P. 4(A)(1). 219. 51 N.E.3d 204 (Ind. 2016), cert denied, 137 S. Ct. 1082 (2017). 220. Id. at 213 (citing Knapp v. State, 9 N.E.3d 1274, 1289-90 (Ind. 2014)). 221. Id. at 214. 222. 54 N.E.3d 986 (Ind. 2016). 223. Id. at 991. 1264 INDIANA LAW REVIEW [Vol. 50:1241 would have no bearing on the amount of time he would serve in prison. 224 VII. O THER SENTENCING C LAIM S Outside the realm of reducing sentences under Rule 7(B), the supreme court and appellate court addressed other sentencing challenges. First, in Bowman v. State, a defendant’s heroin-dealing conviction was225 enhanced because he sold drugs from his apartment, which was less than 1,000 feet from a school. He urged the adoption of the principle of “sentencing factor226 manipulation,” which is recognized in some federal courts and “precludes sentence enhancement where law enforcement officials, for the purpose of increasing the defendant’s sentence, engaged in conduct that was so outrageous or extraordinary as to violate the defendant’s right to due process of law.” The227 Indiana Supreme Court declined, noting the defendant had “not met his own proposed standard” of outrageous police conduct; his decision to reside within 1,000 feet of a school was voluntary, and a three-year-old child who also lived at the apartment complex was present during the transaction.228 In Jackson v. State, the court of appeals reiterated the importance of trial229 court issuing sentencing statements that will facilitate appellate review. There,230 the defendant’s sentencing was deferred during his participation in drug court.231 His participation was terminated after he admitted “smoking a compound called Spice and driving another drug court participant to purchase Spice.” In232 sentencing him to the m axim um term of twenty years, the trial court’s short sentencing statement included that the defendant was “an active participant in helping other Drug Court participants evade detection for repeated drug use. So we have a situation where his criminal thinking not only harmed him but it directly participated in greater harm to other people.” Because “the trial court233 does not have the option of selecting a sentence based solely on the defendant’s conduct apart from the circumstances of the crime,” the court remanded “with instructions to the trial court to sentence Jackson for the offense to which he pled 224. Id. 225. 51 N.E.3d 1174 (Ind. 2016). 226. Id. at 1177. 227. Id. at 1178 (internal quotation marks omitted). 228. Id. The justices have been receptive to reducing sentences under Appellate Rule 7(B) when an enhanced charge resulted from police action. See, e.g., Walker v. State, 968 N.E.2d 1292 (Ind. 2012) (quoting Abbott v. State, 961 N.E.2d 1016, 1017-19 (Ind. 2012) (“[B]ut for the police officer’s choice of location in stopping the car in which Abbott was a passenger, he would have received no more than the maximum three-year sentence for his possession of less than three grams of cocaine.”)). 229. 45 N.E.3d 1249 (Ind. Ct. App. 2015). 230. Id. at 1252. 231. Id. at 1250. 232. Id. 233. Id. at 1251. 2017] CRIM INAL LAW 1265 guilty, accompanied by a sentencing statement that is adequate to facilitate appellate review.”234 Next, Shotts v. State reiterated that “the offender risk assessment scores”235 from the evidence-based Indiana Risk Assessment System widely used in recent years in Indiana “do not in themselves constitute, and cannot serve as, an aggravating or mitigating circumstance.” Such assessments are prepared by236 probation officers and other administrators relying on data and evaluations that “are not necessarily congruent with a sentencing judge’s findings and conclusions regarding relevant sentencing factors.” Nevertheless, the court of appeals found237 no error because “a review of the record ma[de] clear that the trial court was considering the score in light of what type, rather than length, of sentence to impose.”238 Finally, turning to an issue that potentially impacts every prison sentence, a statute provides: “W hen the court pronounces the sentence, the court shall advise the person that the person is sentenced for not less than the earliest release date and for not more than the maximum possible release date.” In Henriquez v.239 State, the court of appeals noted the clarity of the statutory language requiring240 an advisement of specific release dates. But the opinion explained the241 incredible difficulty for trial courts “to determine these dates with any certainty” considering such things as other sentences imposed, “credit time earned before sentencing, the maximum amount of credit time in the current credit class, possible educational credit time, and the possibility of parole and probation violations and revocations down the road.” Although the trial court had failed242 to provide any potential release dates, the court of appeals affirm ed, concluding “to the extent that the trial court ‘erred’ by failing to provide specific dates, estimated or otherwise, Henriquez ha[d] not shown that he was harmed in any way by this omission.” 243 Judge Baker dissented, noting the “General Assembly has mandated this action, and it is not within our purview to exempt trial courts from a mandatory statute simply because it may be difficult to comply with its requirements.” H e244 would require remand for the trial court to provide the required advisement but 234. Id. 235. 53 N.E.3d 526 (Ind. Ct. App.), trans. denied, 59 N.E.3d 252 (Ind. 2016). 236. Id. at 538 (quoting J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010)). 237. Id. (quoting Malenchik v. State, 928 N.E.2d 564, 573 (Ind. 2010)). 238. Id. 239. IND. CODE § 35-38-1-1(b) (2016). 240. 58 N.E.3d 942 (Ind. Ct. App.), trans. denied, 62 N.E.3d 1202 (Ind. 2016). 241. Id. at 943. 242. Id. 243. Id. at 944. In a shorter opinion on the same issue, the panel in Simons v. State, 54 N.E.3d 445, 447 (Ind. Ct. App. 2016), found the error harmless because “Simons ha[d] not alleged that he was prejudiced or harmed by the trial court’s failure to advise him of his earliest release date and maximum possible release date.” 244. Henriquez, 58 N.E.3d at 944 (Baker, J., dissenting). 1266 INDIANA LAW REVIEW [Vol. 50:1241 agreed with the majority that “this lapse provides no relief for this defendant.”245 VIII. R ESTITUTION Three cases addressed important issues regarding restitution: (1) the propriety of vacating or rem anding an erroneous award, (2) the apparent conflict between statutory and case law for meth lab cleanup costs, (3) the impropriety of ordering restitution for a “deep dive” audit of employee theft, and (4) the necessity of providing evidence beyond the probable cause affidavit. It is well-settled that trial courts may order restitution as a condition of probation but must inquire into the defendant’s ability to pay. In Bell v. State,246 the majority vacated a restitution order because of the rare circumstances that a defendant presented evidence of her inability to pay, the trial court made no further inquiry, and the State did not rebut the defendant’s testimony. Remand247 for a new restitution hearing, however, will be appropriate remedy when the defendant fails to provide evidence of the inability to pay and the trial court fails to make any inquiry. 248 Justice Slaughter, in his first written words since joining the court, dissented in an opinion joined by Justice M assa, believing the appropriate remedy when a defendant cannot afford restitution is “remand to allow the trial court to enter a fully lawful sentence.” 249 Next, trial courts generally may not order restitution if it is not mentioned in a plea agreement or at the guilty plea hearing. However, Fisher v. State250 involved an offense of dealing methamphetamine and a statute that requires trial courts to order restitution to cover the costs of environmental cleanup in such cases. The court of appeals acknowledged the “apparent conflict” between the251 case law prohibition on ordering restitution unless it is included in the plea agreement, and the statute that requires restitution orders in methamphetamine cleanup cases. Noting that “plea agreements are contractual in nature,” the252 court concluded the “agreement implicitly incorporated the statutory restitution requirement,” which was enacted more than a decade earlier.253 The restitution statute authorizes trial courts to order restitution for damages incurred “as a result of the crime.” In M organ v. State, a sales m anager254 255 pleaded guilty to theft from her employer, and the State offered evidence of the 245. Id. 246. IND. CODE § 35-38-2-2.3(a)(6) (2016); Bell v. State, 59 N.E.3d 959, 963 (Ind. 2016). 247. 59 N.E.3d at 966. 248. Id. 249. Id. at 967 (Slaughter, J., dissenting). 250. Fisher v. State, 52 N.E.3d 871, 873 (Ind. Ct. App. 2016). 251. Id. (citing IND. CODE § 35-48-4-17 (2016)). 252. Id. 253. Id. 254. IND. CODE § 35-50-5-3(a)(l) (2016). 255. 49 N.E.3d 1091 (Ind. Ct. App. 2016). 2017] CRIM INAL LAW 1267 agreed-upon amount of the insurance payout. T he defendant challenged the256 award of an additional $16,000, arising from the controller’s testimony at the restitution hearing that “additional monies were missing” based upon a “deep dive” audit. The court of appeals agreed that additional amount was improper257 because the witness did not “offer testimony or documentation showing a nexus between those missing funds and conduct by [the defendant],” which is necessary to prove the losses were a “direct and immediate result” of her acts. In addition,258 the award for the “deep dive” audit was improper based on precedent that expenditures “to determine the amount of a loss” fall outside the crim inal restitution statute but may be subject to a civil claim.259 Finally, in Garcia v. State, the defendant was ordered to pay restitution in260 a forgery case involving the sale of fake coins. The State merely “asked the261 court to enter a restitution order in the amount reflected in the probable cause affidavit.” The court of appeals reversed the restitution order, holding “[m]ore262 was required,” such as an affidavit from the victim. 263 Judge Bradford dissented, concluding “under the circumstances of this case, a probable cause affidavit whose authenticity and accuracy have not been questioned, much less shown to be suspect, may be considered by the trial court in ordering restitution.” He also expressed concern with “requiring the victim264 to appear at sentencing or file an affidavit of loss in potentially every restitution case,” which is an “unnecessary and unwarranted re-victimization” and imposes an “unacceptable burden” on Indiana’s high-caseload criminal justice system.265 The Indiana Supreme Court denied transfer by a 3-2 vote (Chief Justice Rush and Justice M assa dissenting from the denial), suggesting the issue might266 resurface in a future case, especially as the court’s membership changes. IX. C HALLENGES TO PROBATION C ONDITIONS AND PROBATION R EVOCATION A number of cases addressed challenges to probation conditions imposed by trial courts or various aspects of trial courts’ revocation of probation. First, in M eunier-Short v. State, the court of appeals held requiring a267 defendant “to return to school and maintain a ‘C’ average while also working full 256. Id. at 1094. 257. Id. 258. Id. 259. Id. 260. 47 N.E.3d 1249, 1253 (Ind. Ct. App. 2015), trans. denied, 46 N.E.3d 1240 (Ind. 2016). 261. Id. at 1250-51. 262. Id. at 1253. 263. Id. 264. Id. at 1254 (Bradford, J., concurring in part and dissenting in part) (internal footnote omitted). 265. Id. at 1255. 266. 46 N.E.3d 1240 (Table). 267. 52 N.E.3d 927 (Ind. Ct. App. 2016). 1268 INDIANA LAW REVIEW [Vol. 50:1241 time” as conditions of probation was “not reasonably related to [the defendant’s] rehabilitation or the public’s safety.” The case was remanded to the trial court268 with instructions to provide “the option to either maintain full time employment or ‘faithfully pursue’ a course of study that will equip him for suitable employment.”269 Other cases dealt with the propriety of revoking a defendant’s probation. In Trammell v. State, the court of appeals reversed the revocation of probation270 because the State failed to prove the alleged violation occurred during the defendant’s period of probation. The court declined to find the defendant had “invited any error because he did not assert during the revocation hearing that he was not on probation and admitted to the acts alleged.” R ather, it found the271 defendant was “under no obligation to point out to the State that it has failed to prove its case” and noted that an “admission to the conduct is not an admission that he has violated probation by engaging in that conduct.”272 Although most claims asserted on appeal must first be raised in the trial court, in Hilligoss v. State the court of appeals found fundamental error when the trial273 court failed to ensure that a probationer who admitted a probation violation had received the required advisements. Because the record was silent regarding274 whether the defendant was advised, the court was compelled to conclude he was not properly advised and thus remanded to the trial court.275 Finally, although a community corrections case, Sullivan v. State relies on276 probation revocation cases and principles. There, the court of appeals reiterated that “zero tolerance” policies in which any violations automatically result in the revocation are “constitutionally suspect.” Despite a defendant’s admission, he277 “must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation.” In response to the allegation that he278 did not report to begin his sentence on home detention, “the defendant offered evidence that his house and phone were approved for home detention, that he was hospitalized at the time he was to report, and that he was under the impression his 268. Id. at 937. 269. Id. The court also noted “a division of authority” among panels regarding whether defendants must object to probation conditions in order to preserve the issue for appeal. Id. at 936. Relying on the majority approach the court held no objection was required, analogizing “the appeal of a probation condition to an appeal of a sentence, which we may review without insisting that the claim first be presented to the trial judge.” Id. (internal quotation marks and citation omitted). 270. 45 N.E.3d 1212 (Ind. Ct. App. 2015). 271. Id. at 1216. 272. Id. at 1216-17. 273. 45 N.E.3d 1228 (Ind. Ct. App. 2015). 274. Id. at 1232 (citing IND. CODE § 35-38-2-3(e) (2016)). 275. Id. 276. 56 N.E.3d 1157 (Ind. Ct. App. 2016). 277. Id. at 1162. 278. Id. (quoting Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012)). 2017] CRIM INAL LAW 1269 counsel would contact the court and community corrections.”279 The court of appeals reversed the revocation and resulting prison sentence based “ on the totality of the circumstances, including the nature of the violation and sanction,” remanding for placement in community corrections.280 279. Id. 280. Id. at 1162-63.