Indiana Law Review V. Criminal Law and Procedure Stephen J. Johnson* A. Crimes 1. Statutory Developments.—a. Generally.—During the survey period, the Indiana legislature did not enact any sweeping revisions of criminal law or procedure. Nonetheless, some portions of Indiana's penal code were amended or augmented in significant ways.' Additionally, several new criminal laws were enacted during the last year.^ b. Sex crimes.—The definition of "deviate sexual conduct" in the penal code was amended to include not only acts which traditionally have been thought of as sodomy, but also to include "the penetration of the sex organ or anus of a person by an object."^ This offense had been previously punished as the crime of criminal deviate conduct. "* The amendment was designed to alleviate gaps in the law that had developed because Indiana had a general definition for "deviate sexual conduct"^ and a specific crime of "criminal deviate conduct"^ which included acts of deviate sexual conduct. The term "deviate sexual conduct" is used in a number of different sex offense statutes,"^ but, as previously defined, the term did not include the penetration of a sex organ or the anus by an object. Thus, for example, it was the crime of criminal deviate conduct to insert an inanimate object into the sex organ of a victim, but it was not child molesting to commit the same act on a child. This incongruity was remedied by the amendment to the term "deviate sexual conduct." The Indiana legislature also enacted a statute creating two new offenses designed to punish certain forms of sexual behavior or attempted Director of Research, Indiana Prosecuting Attorneys Council. B.S., Michigan State University, 1970; J.D,, Indiana University School of Law—Bloomington, 1973. 'See infra notes 3-7, 15, 18-24 and accompanying text. ^See infra notes 8-14, 17 and accompanying text. ^Act of Feb. 29, 1984, Pub. L. No. 183-1984, § 1, 1984 Ind. Acts. 1497 (codified at Ind. Code § 35-41-1-9 (Supp. 1984)). "Ind. Code § 35-42-4-2(b) (1982). 'Ind. Code § 35-41-1-2 (1982) (repealed 1983) defined "deviate sexual conduct" generally as "an act of sexual gratification involving a sex organ of one person and the mouth or anus of another person." Id. ^Ind. Code § 35-42-4-2 (1982). 'See Ind. Code § 35-42-4-3 (1982) (child molesting); Ind. Code § 35-42-4-4 (Supp. 1984) (child exploitation); Ind. Code § 35-45-4-2 (Supp. 1984) (prostitution); Ind. Code § 35-46-1-3 (1982) (incest); Ind. Code § 35-49-1-9 (Supp. 1984) (obscenity). Additionally, two newly enacted criminal statutes utilize the term "deviate sexual conduct." See Ind. Code § 35-42-4-5 (Supp. 1984) (vicarious sexual gratification); Ind. Code § 35-42-4-6 (Supp. 1984) (child solicitation). 157 158 INDIANA LAW REVIEW [Vol. 18:157 sexual behavior with children.^ The state's existing child molesting statute,^ strictly interpreted, neither punished someone who forced a child to fondle himself or another person, nor punished someone who forced a child to have sexual relations with a person other than the defendant. It was assumed that persons seeking to abuse children sexually would be the direct recipients of some form of physical contact with the child. This assumption overlooked those who derive pleasure from watching a child commit a sexual act with someone else. As a result, a new offense, vicarious sexual gratification, was created to prohibit this form of child sexual abuse. '° It prohibits a person eighteen years of age or older from directing, aiding, inducing, or causing a child to fondle himself or another child, or to engage in sexual intercourse, deviate conduct, or bestiality "with intent to arouse or satisfy the sexual desires of a child or the older person." '• The second new offense, child solicitation, prohibits a person more than eighteen years of age from soliciting a child under twelve years of age to engage in sexual intercourse, deviate sexual conduct, or fondling. '^ The new statute is designed to reach conduct that could be described as an attempted child molestation. Such conduct, however, is probably not within the reach of Indiana's general attempt statute'^ because mere verbal communication to the child might not be considered enough of a "substantial step" toward completion of the crime to constitute an attempt.''* The legislature amended a third sex offense statute to punish as indecent exposure the activities of one who engages in sexual conduct «Act of Feb. 29, 1984, Pub. L. No. 183-1984, §§ 4-5, 1984 Ind. Acts 1497, 1499- 1500 (codified at Ind. Code §§ 35-42-4-5, -6 (Supp. 1984)). 'Ind. Code § 35-42-4-3 (1982). '°Act of Feb. 29, 1984, Pub. L. No. 183-1984, § 4, 1984 Ind. Acts 1497, 1499 (codified at Ind. Code § 35-42-4-5 (Supp. 1984)). "iND. Code § 35-42-4-5 (Supp. 1984). '^Act of Feb. 29, 1984, Pub. L. No. 183-1984, § 5, 1984 Ind. Acts 1497, 1499 (codifed at Ind. Code § 35-42-4-6 (Supp. 1984)). ''Ind. Code § 35-41-5-1 (1982) provides in part: "A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime." Id. "•The drafters of Indiana's penal code relied heavily upon the Model Penal Code, but chose not to adopt the general solicitation offense defined in the model act. Model Penal Code § 5.02 (Proposed Official Draft 1962) defines criminal solicitation: A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission. Id. If the Indiana penal code drafters had included the general solicitation offense, the newly enacted child solicitation statute would not have been necessary. 1985] SURVEY—CRIMINAL LAW 159 in Other than a public place with the intent that he or she be seen by other persons. '5 The amendment was intended to prohibit the activities of someone who stands in front of his picture window inside his house while committing some form of pubhc indecency. The legislature ap- parently believed that this conduct could not be considered "public" indecency because the offender would be on his own private property at the time of the act. No Indiana appellate decision, however, has ever construed the public indecency statute so narrowly, and decisions from other jurisdictions indicate that this kind of activity could be considered to be in a "public place. "'^ c. Miscellaneous.—The legislature expanded the chapter dealing with offenses against the family to include protection for persons more than sixty years old who are classified as "endangered adults."'^ This provision was designed to give endangered adults the kind of protection presently afforded child abuse or neglect victims. In addition, the legislature broadened the scope of conduct that will elevate the charge of resisting law enforcement from a Class A mis- demeanor to a Class D felony.'^ Under the new law, if a person "operates a vehicle in a manner that creates a substantial risk of bodily injury to another person"'^ while resisting law enforcement, that person commits a Class D felony. Finally, the legislature changed the grade of offense in three kinds of criminal activities. First, Indiana's robbery statute was amended to lower the grade of felony to Class B when robbery "results in bodily '^Act of Mar. 5, 1984, Pub. L. No. 189-1984, § 1, 1984 Ind. Acts 1506 (codified at Ind. Code § 35-45-4-1 (Supp. 1984)). ''See State v. Vega, 38 Conn. Supp. 313, 444 A.2d 927 (1982); Hester v. State, 164 Ga. App. 871, 298 S.E.2d 292 (1982); People v. Legel, 24 111. App. 3d 554, 321 N.E.2d 164 (1974). '^Act of Feb. 24, 1984, Pub. L. No. 185-1984, 1984 Ind. Acts 1501 (codified at Ind. Code §§ 35-42-2-1, 35-46-1-1-, 35-36-1-12, 35-46-1-13, 35-46-1-14 (Supp. 1984)). An "en- dangered adult" is defined as a person sixty (60) years of age or older who is unable to protect his interests and who is harmed or threatened with harm by either himself or another person as a result of: (1) failure to comprehend either the nature of his situation or the consequences of the continuation of his situation; (2) incompetence; (3) neglect; (4) battery; or (5) exploitation of the person's personal services or property, Ind. Code § 35-46-1-1 (Supp. 1984). '^Act of Feb. 29, 1984, Pub. L. No. 188-1984, 1984 Ind. Acts 1505 (codified at Ind. Code § 35-44-3-3 (Supp. 1984)). '^IND. Code § 35-44-3-3 (Supp. 1984). 160 INDIANA LAW REVIEW [Vol. 18:157 injury to any person other than a defendant. "^° Formerly, a robbery that resulted in any form of bodily injury was a Class A felony. 2' Class A felony status was retained only in cases in which "serious bodily injury" happens to one other than a defendant. ^^ Second, the legislature raised the penalty for leaving the scene of an accident that causes serious bodily injury or death from a Class B misdemeanor to a Class D felony. ^^ Third, the intimidation statute was amended to make it a Class D felony to threaten a judge. ^"^ 2. Assisting a Criminal.—In a 1983 decision, the Indiana Court of Appeals interpreted the "assisting a criminal" statute. ^^ In Moore v. State^^ the defendant was charged with murder and attempted murder. He eventually was convicted of assisting a criminal. On appeal, the defendant argued that he could not be convicted of a crime with which he was never charged and which was not a lesser included offense of the crimes charged. The State argued that assisting a criminal was a lesser included offense of murder or attempted murder, and alternatively that even if it were not a lesser included offense, the defendant invited any error in the verdict by tendering an instruction on assisting a criminal as a lesser included offense. ^^ The court agreed with the State's invited error argument and sustained the assisting a criminal conviction. ^^ The court stated, "assisting a criminal is a lesser included offense of murder and attempted murder. "^^ The court's authority for that statement, Smith v. State,^^ is of questionable value. The court in Smith held that when a person is convicted of robbery, murder, and assisting a criminal, the assisting conviction merges into the murder and robbery convictions "as an included offense in the commission of those crimes."^' By phrasing its decision in terms of the lesser included offense and merger doctrines, the Indiana Supreme Court, in Smith, confused the point it apparently was trying to make clear. ^°Act of Feb. 24, 1984, Pub. L. No. 186-1984, 1984 Ind. Acts 1504 (codified at Ind. Code § 35-42-5-1 (Supp. 1984)). ^'IND. Code § 35-42-5-1 (1982). ^^IND. Code § 35-42-5-1 (Supp. 1984). ^'Act of Feb. 24, 1984, Pub. L. No. 76-1984, §1, 1984 Ind. Acts 942 (codified at Ind. Code § 9-4-1 -40(b) (Supp. 1984)). ^^Act of Feb. 29, 1984, Pub. L. No. 183-1984, § 6, 1984 Ind. Acts 1497 (codifed at Ind. Code § 35-45-2- l(a)(Supp. 1984)). "Ind. Code § 75-44-3-2 (1982). ^445 N.E.2d 576 (Ind. Ct. App. 1983). ^'Id. at 578. ^^Id. ''Id. (citing Smith v. State, 429 N.E.2d 956, 959 (Ind. 1982)). '°429 N.E.2d 956 (Ind. 1982). ''Id. at 959. 1985] SURVEY—CRIMINAL LAW 161 The assisting a criminal statute is designed to reach conduct that would have been within the traditional accessory after the fact crime. ^^ Its objective is to punish someone who assists a criminal's escape after the criminal has committed a crime." Given that statutory purpose, it would be anomolous to punish someone as both the principal in a crime and as an accessory to that crime, even if he assisted his accomplice's escape instead of his own. The general rule has been that a person cannot be both the principal in a crime and an accessory after the fact.^^ This appears to be the theory of law the Indiana Supreme Court was trying to express in Smith, but its description in terms of greater and lesser included offenses confused the issue. Indeed, after applying the rules for determining when one offense is included in another, it is difficult to conceive of a situation in which assisting a criminal would be an included offense of murder. ^^ In 1984, the Indiana Supreme Court recognized this fact in Reynolds v. State^^ and declared that the court of appeals' view in Moore was overly broad: "Assisting a criminal is not, in every instance, a lesser included offense of murder. "37 The court said it was obvious that one may commit a murder without committing the crime of assisting a criminal. Therefore, assisting a criminal is not an "inherently included" lesser offense of murder, although it may be a "possibly included" lesser offense of murder. 38 The outcome of the lesser included offense inquiry depends upon the language of the charging instrument for murder. 3. Burglary.—In the last year, several Indiana courts clarified the key terms, "dwelling," "structure," and "breaking," contained in the ^^Ind. Code Ann. § 35-44-3-2 Indiana Criminal Law Commission Comments (West 1978). "Ind. Code § 35-44-3-2 (1982) provides in pertinent part: A person not standing in the relation of parent, child, or spouse to another person who has committed a crime or is a fugitive from justice who, with intent to hinder the apprehension or punishment of the other person, harbors, conceals, or otherwise assists the person commits assisting a criminal, a Class A mis- demeanor. Id. '^W. LaFave & A. Scott, Handbook on Criminal Law 523 (1972) [hereinafter cited as LaFave & Scott] R. Perkins, Criminal Law^ 669 (2d ed. 1969). ''See Lawrence v. State, 268 Ind. 330, 375 N.E.2d 208 (1978); Roddy v. State, 182 Ind. App. 156, 394 N.E.2d 1098 (1979). M60 N.E.2d 506 (Ind. 1984). ''Id. at 509. ^*The court explained the difference between the two types of included offenses identified in Indiana case law: "The 'inherently included' lesser offense exists when, by definition, it is impossible to commit the greater offense without committing the lesser offense. An offense is 'possibly included' depending upon the manner and means allegedly employed in the commission of the charged crime." 460 N.E.2d at 510 (citing Roddy v. State, 182 Ind. App. 156, 168, 394 N.E.2d 1098, 1105-06 (1979)). 162 INDIANA LAW REVIEW [Vol. 18:157 burglary statute. ^^ In Joy v. State,'^^ five men surreptitiously entered a lumber yard enclosed by a fence. A sixth man, the defendant, drove the others to the lumber yard and gave them a list of items he wanted stolen. While the defendant remained outside, the other five apparently hopped the fence and removed lumber from storage sheds that were completely open on one side. The fence surrounding the lumber yard was cut with a pair of wire cutters so the lumber could be taken out through the opening and loaded onto a waiting semitrailer."*' The issue before the court of appeals was whether or not the fence and open storage sheds were "buildings or structures" within the meaning of the burglary statute. The defendant contended they were not, sup- porting his argument with a Texas case that held that a defendant did not commit burglary when he cut through a chain link fence surrounding a lumber yard, entered through an open doorway of a building, and removed some lumber. ^^ The Indiana Court of Appeals distinguished the Texas decision because of differences between the Indiana and Texas burglary statutes. The Texas statute prohibited only burglary of a "build- ing," while the Indiana statute prohibited burglary of a "building or structure.' '"^^ The court noted that the Texas decision was based on a holding that the fence was not a "building," and that entering through an open door was not a "breaking." The Indiana Court of Appeals went on to conclude that the fence surrounding the lumber yard was a "structure" under Indiana's burglary statute. '*'* This conclusion focused on whether the fence surrounding the lumber yard was clearly "'for the purpose of protecting property within its confines and [was], in fact, an integral part of a closed compound.""*^ "IND. Code § 35-43-2-1 (1982) provides: A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon or if the building or structure is a dwelhng, and a Class A felony if it results in either bodily injury or serious bodily injury to any person other than a defendant. Id. M60 N.E.2d 551 (Ind. Ct. App. 1984). ''Id. at 555. '^Id. at 557 (citing Day v. State, 534 S.W.2d 681 (Tex. 1976)). ^'IND. Code § 35-43-2-1 (1982) (emphasis added); see 460 N.E.2d at 557 n.7. ^460 N.E.2d at 558. The court relied in part on four decisions from other jurisdic- tions that held that breaking into a fenced enclosure was burglary. See People v. Moyer, 635 P. 2d 553, (Colo. 1981) (fenced dog kennel was an "occupied structure" under burglary statute); Stanley v. State, 512 P.2d 829 (Okla. Crim. App. 1973); State v. Roadhs, 71 Wash. 2d 705, 430 P. 2d 586 (1967); State v. Livengood, 14 Wash. App. 203, 540 P. 2d 480 (1975). ^'460 N.E.2d at 558 (quoting State v. Roadhs, 71 Wash. 2d 705, 708-09, 430 P. 2d 586, 588 (1967)). 1985] SURVEY—CRIMINAL LAW 163 This will continue to be the test for determining whether or not a burglary has been committed when property enclosed by a fence has been entered with the intent to commit a felony therein. Because the court interpreted the word '^structure" in the burglary statute to include the fence, it did not answer the question of whether the open storage sheds inside the fence were buildings or structures. A secondary issue raised was whether there was sufficient evidence at trial to prove that a breaking had occurred. "^^ The evidence was unclear as to how entry into the lumber yard was made. It was possible that the defendant's accomplices simply cut through the fence and entered the lumber yard that way; if so, it is certain that this would constitute a breaking. It was also possible that the burglars climbed over the fence and later cut through it to "break out" of the lumber yard. Prior to this case, it was unclear whether climbing over a fence would constitute a breaking. "^^ Breaking has generally been interpreted to require at least the use of some shght force to gain entry, such as pushing open a door or turning a door handle."*^ Merely walking through an open door does not constitute a breaking."*^ Thus, the Joy case raised an interesting issue as to whether hopping over a fence constitutes a breaking. The court of appeals held that it does:^° We perceive no difference in our conclusion depending on how the confederates got past the fence. Whether they hopped over it, drove through it, or cut it with wire cutters is of no import. The fact that they crossed over a structure intended to keep them out is sufficient to estabUsh a breaking occurred.^' While this interpretation of breaking has much to commend it, there may be difficulty in reconciling it with the general common law rule that merely crossing an imaginary line does not constitute a breaking. ^^ Nevertheless, a fence is not a mere imaginary boundary. It is designed as a form of security to keep intruders out. Scaling a fence is much more intrusive than walking across an invisible line on the ground. If M60 N.E.2d at 556. ''^Alternatively, one might argue that even if climbing the fence was not a breaking, cutting through the fence to make an exit was a breaking. It is a matter for debate whether or not "breaking out" constitutes a breaking for purposes of a burglary statute. See LaFave & Scott, supra note 34, at 197. ''See, e.g., Howard v. State, 433 N.E.2d 753 (Ind. 1982); Jacobs v. State, 454 N.E.2d 894 (Ind. Ct. App. 1983); McCormick v. State, 178 Ind. App. 206, 382 N.E.2d 172 (1978). '"See, e.g., Passwater v. State, 248 Ind. 454, 229 N.E.2d 718 (1967). But cf. Smith V. State, 454 N.E.2d 412 (Ind. 1983). ^°460 N.E.2d at 558-59. ''Id. at 559 n.8. "4 W. Blackstone, Commentaries 226 (1857); R. Perkins, supra note 34, at 192 (2d ed. 1969); Annot., 70 A.L.R.3d 881 (1976). 1 64 INDIANA LAW REVIEW [Vol . 1 8 : 1 57 the gate to the fence had been unlocked and the burglars had exerted the slightest effort to open it, their actions would been a breaking. It is difficult to see why surmounting the same obstacle by climbing over it, with the same intent to steal, should not be punishable as burglary." Whether the burglarized place is ultimately defined as a "building" or a "structure" will make little difference to most defendants charged with burglary. If the burglary is of either a building or a structure, it will be punished as a Class C felony.^'* The important question for burglars will be whether or not the building fits the definition of a "dwelHng," because burglary of a dwelling is a Class B felony. ^^ In Jones v. State,^^ the issue was whether a vacation cabin was a dwelling within the meaning of the burglary statute." The victim's vacation cabin was a three-room log structure, furnished sparsely and used as a sportsman's retreat. The owner was in the process of repairing the cabin and slept overnight there on the day of the burglary. ^^ It was not the owner's principal place of residence. On appeal, the defendant argued that he did not burglarize a dwelling. He relied on three Indiana cases that held that temporary retreats or vacation homes do not quahfy as dwelhngs.^^ The court of appeals characterized the holdings on which the defendant relied as nullities because of significant statutory developments since the earlier cases. ^° The burglary statute in effect at the time of those decisions made it the crime of first degree burglary to break and enter "any dwelHng house or other place of human habitation. "^^ In contrast, the court of appeals emphasized the broader terminology in the current statutory definition of "dwelling," concluding that the Indiana legislature intended a less "Finally, it should be noted that the Indiana Court of Appeals held that the trial court did not abuse its discretion in refusing the defendant's tendered instructions defining "building or structure" and "breaking and entering." 460 N.E.2d at 565. The court noted that a trial court has discretion to permit a jury to rely on its common sense understanding of words that are not terms of art. Id. The court's correct resolution of this issue seems somewhat ironic given the amount of effort the appeals court engaged in when analyzing the meanings of "structure" and "breaking." 5^lND. Code § 35-43-2-1 (1982). "/i/. The difference in penalty is what makes the difference in definitions significant. One may burglarize a building or a structure without burglarizing a dwelling. See Goodpaster V. State, 273 Ind. 170, 175, 402 N.E.2d 1239, 1242 (1980). M57 N.E.2d 231 (Ind. Ct. App. 1983). "/£/. at 233. Unlike the terms "building" or "structure," there is a statutory definition of "dwelling." The term means "a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person's home or place of lodging." Ind. Code § 35-41-1-10 (Supp. 1984). '«457 N.E.2d at 233. '^Id. (citing Smart v. State, 244 Ind. 69, 190 N.E.2d 650 (1963); Carrier v. State, 227 Ind. 726, 89 N.E.2d 74 (1949); Middleton v. State, 181 Ind. App. 232, 391 N.E.2d 657 (1979)). ^457 N.E.2d at 234. ^'IND. Code § 10-701 (Burns 1956) (current version at Ind. Code 35-43-2-1 (1982)). 1 985] SURVEY—CRIMINAL LAW 165 restrictive interpretation of the term, one which includes a vacation cabin. ^2 jj^ ^n alternative ground for its holding, the court observed that one of the earher cases held that a recreational cabin might be a dwelling if it were occupied at the time the break-in occurred. ^^ Under the rule of that case, the vacation cabin in Jones would still be considered a dwelling. Finally, in Gaunt v. State,^'^ the defendant broke and entered into an attached garage and removed some property. The garage was attached to the house through an interior door and was used for family storage. Although by entering the garage the defendant did not have immediate access to the actual living quarters of the house, the supreme court held that the defendant had, nonetheless, entered a private part of the victims' dwelHng and was thus guilty of burglary of a dweUing.^^ The decisions of Joy, Jones, and Gaunt represent the courts' con- tinuing common sense, expansive interpretations of Indiana's burglary statute, a trend away from strict adherence to a traditional common law concept of burglary. The trend is appropriate because, as one commentator has noted, "Of all common law crimes, burglary today perhaps least resembles the prototype from which it sprang. "^^ 4. Disorderly Conduct.—From the standpoint of legal analysis, dis- orderly conduct cases are some of the most interesting because they often involve a free speech issue. Two cases decided during the survey period, Cavazos v. State^^ and Mesarosh v. State,^^ illustrate the point. In Cavazos, a police officer arrested the defendant's brother for disorderly conduct after a heated argument in a tavern. Afterward, the defendant began to yell at the pohce officer as he was placing handcuffs on her brother. The defendant came to the front of the gathering crowd and yelled at the officer again, calling him an "asshole." The officer told the defendant to be quiet, but she loudly persisted. ^^ The defendant was arrested for disorderly conduct. ^^ Her conviction was reversed by the Second District Indiana Court of Appeals.^' ^H51 N.E.2d at 234. "M (citing Smart v. State, 244 Ind. 69, 190 N.E.2d 650 (1963)). "457 N.E.2d 211 (Ind. 1983). "M at 213-14 (citing Abbott v. State, 175 Ind. App. 365, 371 N.E.2d 721 (1978); Burgett V. State, 161 Ind. App. 157, 314 N.E.2d 799 (1974)). ^Note, Statutory Burglary— The Magic of Four Walls and a Roof, 100 U. Pa. L. Rev. 411, 411 (1951). ^^455 N.E.2d 618 (Ind. Ct. App. 1983). *«459 N.E.2d 426 (Ind. Ct. App. 1984). ^M55 N.E.2d at 619. ^°The disorderly conduct charge was based on Ind. Code § 35-45-1-3(2) (1982): "A person who recklessly, knowingly, or intentionally . . . makes unreasonable noise and continues to do so after being asked to stop . . . commits disorderly conduct, a Class B misdemeanor." Id. ^'455 N.E.2d at 621. 166 INDIANA LAW REVIEW [Vol. 18:157 The sole issue on appeal was whether or not there was sufficient evidence to support a conviction for disorderly conduct. The elements of that offense are: (1) recklessly, knowingly, or intentionally; (2) making unreasonable noise; (3) which continues; (4) after being asked to stop.^^ In this case, the defendant yelled at the arresting officer, was told to be quiet, continued to yell at the officer, called him an asshole, was again told to be quiet, and still continued yelhng. The only issue before the court was whether or not the noise was unreasonable. The court of appeals noted that speech punished by a disorderly conduct statute must fall into one of the four categories of speech unprotected by the con- stitutional guarantee of freedom of speech—obscenity, fighting words, public nuisance speech, or an incitement to imminent lawless action. ^^ The court of appeals easily rejected a theory that the defendant's language rose to the level of obscenity. ^"^ The court also said that the noise did not constitute a public nuisance that invaded privacy interests. Although the defendant's speech was loud, the court said, "Evidence of loudness, standing by itself, does not constitute evidence of unrea- sonable noise in the public nuisance sense. "^^ Whether the loudness was unreasonable must be determined from the surrounding circumstances. The noise at issue was made in a bar with a band playing fifty feet away, and there was no evidence that the defendant spoke louder than anyone else or louder than was necessary to be heard. Therefore, the court concluded that the speech was not unreasonable noise in the public nuisance sense. ^^ Nor was the defendant's speech an incitement to im- mediate lawless action. Although the defendant's conduct agitated the crowd, the court said there was no evidence that her speech was '"directed to inciting or producing imminent lawless action and [was] likely to incite or produce such action. '"^^ The remaining form of constitutionally unprotected speech, fighting words, drew the most attention from the court. The basic definition of "fighting words" is words "'which by their very utterance . . . inflict injury or tend to incite an immediate breach of the peace. '"^^ According ''Id. at 619. 'Ud. at 620 (citing Hess v. Indiana, 414 U.S. 105 (1973)). The majority emphasized, "we are assuming and do not decide 'unreasonable noise' as used in [Ind. Code §] 35- 45-1-3(2) criminalizes the foregoing categories of constitutionally unprotected speech." 455 N.E.2d at 620. ^M55 N.E.2d at 620. "M at 621. '"Id. at 620. ''Id. at 621 (quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). ^«455 N.E.2d at 619 (quoting Stults v. State, 166 Ind. App. 461, 468, 336 N.E.2d 669, 673 (1975)). Another definition of fighting words is '"personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge. 1985] SURVEY—CRIMINAL LAW 167 to the court, "It may be a question of fact whether the words in question constitute 'fighting words.' However, where all reasonable persons would agree the words are not 'fighting words' the question becomes one of law."^^ Because of the free speech element, less deference is paid by an appellate court to the factfinder's determination that the evidence is sufficient to sustain a conviction. The question of sufficiency of the evidence in such cases is a mixed question of law and fact, perhaps more so than for any other criminal offense. The majority methodically evaluated the facts to decide whether or not the defendant's speech constituted fighting words. The defendant's original outburst, that the officer had a grudge against her brother and had no right to arrest him, was not considered to be fighting words because, as a matter of law, they could not reasonably provoke a listener to violent action. ^° Ad- ditionally, as a matter of law, the term ''asshole" is not so inflammatory that when addressed to an ordinary citizen it is inherently likely to provoke violent action. The court stated, "While the word is indeed derogatory, it does not describe, reference, or characterize national origin, race, religion, sex, or parentage, categories into which fighting words now commonly fall."^' Finally, even if the word "asshole" were con- sidered a fighting word, it could not support a conviction for disorderly conduct because the speech preceding or following it was not unreasonable noise. ^2 The second disorderly conduct case, Mesarosh v. State,^^ also focused on words spoken by a bystander as he objected to the arrest of another person. After the defendant's companion was arrested, both he and the defendant began to shout loudly and profanely. ^"^ A crowd gathered to watch, and although some of the spectators may have been shouting, no one attempted to interfere with the arrest. inherently likely to provoke violent action." 455 N.E.2d at 619 (quoting Cohen v. Cahfornia, 403 U.S. 15, 21 (1971)). ^^55 N.E.2d at 619. ^Id. at 619-20. ''Id. at 620. '^Id. Chief Judge Buchanan wrote a vigorous dissent. In it he contended that the word "asshole" was a fighting word and thus unprotected speech. Id. at 622. In addition, because the defendant disobeyed the officer's order to be quiet after uttering the "fighting word," the dissent would have permitted an inference of unreasonable noise even without testimony as to the specific content of her second outburst. Id. Finally, Judge Buchanan stated that even before the defendant used the word "asshole" she had spoken fighting words because of the circumstances in which they were uttered. Id. "459 N.E.2d 426 (Ind. Ct. App. 1984). ^The defendant shouted, "Look at this shit going on here." Brief for Appellant at 4, Mesarosh v. State, 459 N.E.2d 426 (Ind. Ct. App. 1984). "[F]uck you pigs, all you want to do is pick on us, we're going to get your ass. I'm going to see you in court. I'll get you mother fuckers, you son-of-a-bitches." Brief for Appellant at 5, Mesarosh V. State, 459 N.E.2d 426 (Ind. Ct. App. 1984). 168 INDIANA LAW REVIEW [Vol. 18:157 The defendant was arrested and convicted of disorderly conduct for making unreasonable noise after being asked to stop.^^ The fourth district court of appeals agreed with the second district's analysis in Cavazos that there are four basic categories of unprotected speech which may be punished criminally. ^^ However, unlike Cavazos, the Mesarosh court affirmed the disorderly conduct conviction on the "fighting words" theory. ^^ The fourth district stated that fighting words are '"personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent action. '"^^ The words must be a face to face personal insult, and a determination of whether the words are personally abusive must be based on an objective rather than a subjective standard. ^^ The fourth district compared the second district's Cavazos case, but said it would apply the dissent's rationale and hold that the speech in Mesarosh crossed the line into constitutionally unprotected expression. ^^ In both Cavazos and Mesarosh, the alleged "unreasonable noise" was created by the defendants' objections to the arrests of others. The "noise" in both cases was directed at poHce officers. Both defendants employed unfavorably descriptive terms when insulting the police officers. Both used words which would probably, even today, be considered profane, although the speech was not obscene. This is where the sim- ilarities end. The defendant in Mesarosh, in simple numbers, used more profanity than did the defendant in Cavazos. Additionally, if there can be degrees of offensive language, the language in Mesarosh was probably worse. The shouting in Mesarosh occurred outside a building, apparently with enough volume to draw spectators from other buildings. The shout- ing in Cavazos occurred in a noisy bar. Therefore, from a nuisance speech standpoint, the noise in Mesarosh was far more likely to be unreasonable noise. Judge Young's concurring opinion in Mesarosh ap- pears correct on this point. Also, in the context of all the facts in Mesarosh, the speech was probably not an incitement to imminent lawless action. The shouting occurred in the open street, apparently with more «H59 N.E.2d at 427. The defendant's conviction was based on the same statute discussed in Cavozos. See supra text accompanying note 70. M59 N.E.2d at 427-28. ^'Id. at 430. ^^Id. at 428 (quoting Commonwealth v. A Juvenile, 368 Mass. 580, 591, 334 N.E.2d 617, 624-25 (1975) (quoting Cohen v. Cahfornia, 403 U.S. 15, 20 (1971))). ^H59 N.E.2d at 428. '^Id. at 429-30. In a separate concurrence. Judge Young wrote that the conduct in Mesarosh was disorderly simply because the noise was unreasonably loud. Id. at 430. "[T]he content of the loud noise is irrelevant. A person could violate the statute by reading the scriptures in an unreasonably loud manner. This is not an obscenity case." Id. 1985] SURVEY—CRIMINAL LAW 169 than one police officer preent, and many of the spectators merely watched. The same, however, cannot be said of the facts in Cavazos, where a lone police officer was attempting to arrest a person in a confined area in a bar at one o'clock in the morning while the arrestee's sister shouted at him. Indeed, the officer in Cavazos was assaulted. The majority in Cavazos emphasized that the defendant's speech was not "directed to" inciting immediate lawless action: "She was simply arguing with a policeman about whether her brother should be arrested. "^' The Cavazos court failed to recognize that speech can be an incitement to immediate lawless action even if the speaker does not literally say "Let's riot!" On the other hand, the state ought not punish as disorderly conduct a speech Hke Marc Antony's "Friends, Romans, countrymen"^^ address simply because it eventually does lead to a riot. But if Marc Antony delivered his oration in the closed quarters of a bar at one o'clock in the morning where one individual representing authority is surrounded by eight intoxicated persons, a different conclusion would be warranted. While the court in Cavazos insisted that nuisance speech must be considered in the entire context in which it is delivered, the context of the speech was virtually ignored when determining whether or not it was an incitement to immediate lawless action. Furthermore, as was pointed out by the fourth district in Mesarosh, it is not always easy to pigeonhole speech in one category or another; there is often a substantial overlap between the imminent lawless action and fighting words exceptions. ^^ Viewing these cases, it is easy to see how a defendant might claim that the disorderly conduct statute is unconstitutionally vague. ^^ During the last year, the first district court of appeals avoided that question, but did hold that an indictment or information alleging that the defendant committed disorderly conduct by engaging in "tumultuous conduct"^^ must allege the specific facts which comprise the tumultuous conduct. ^^ A prosecuting attorney would be well advised to also specifically allege "'455 N.E.2d at 621. '^W. Shakespeare, The Tragedy of Julius Caesar, The Complete Signet Classic Shakespeare 825 (2d ed. 1972). "'459 N.E.2d at 428 n.3. Indiana's provocation statute, Ind. Code § 35-42-2-3 (1982), would seem to specifically punish fighting words. In Evans v. State, 434 N.E.2d 940 (Ind. Ct. App. 1982), the court of appeals interpreted the provocation statute in light of the fighting words doctrine. ""Kerr, Foreword: Indiana's Bicentennial Criminal Code, 1975 Survey of Recent Developments in Indiana Law, 10 Ind, L. Rev. 1, 26 (1976). Indiana's former disorderly conduct statute was upheld against a void-for-vagueness attack in Hess v. State, 260 Ind. 427, 297 N.E.2d 413 (1973), rev'd on other grounds, 414 U.S. 105 (1973). "^IND. Code § 35-45-1-3(1) (1982). "^Gebhard v. State, 459 N.E.2d 58, 61 (Ind. Ct. App. 1984). 170 INDIANA LAW REVIEW [Vol. 18:157 the conduct which constitutes unreasonable noise when alleging disorderly conduct under that subsection. '^^ 5. Homicide.—Several decisions during the survey period clarified the holding of Head v. State.^^ In that case, the Indiana Supreme Court held that there can be no crime of attempted felony murder because the specific intent required for an attempt cannot be supplied by the intent necessary to prove the underlying felony. In Brown v. State,^^ the defendant challenged the constitutionality of the felony murder statute*°° on the ground that it dispensed with the need to prove a specific intent to kill. The Indiana Supreme Court stated that the only intent the State must prove is the mens rea for the underlying felony, that the intent to kill is not an element of felony murder and that its absence did not render the statute unconstitutional. '°' While the Head decision may have held that there is no crime of attempted felony murder, the court in Brown said this would not be extended to mean that the felony murder statute itself was unconstitutional. The Indiana Supreme court addressed a related sentencing issue in Anderson v. State. ^^^ In that case, the defendant was convicted of attempted murder and armed robbery and sentenced for both offenses. He contended that this was error because the robbery was the underlying felony for attempted murder and should have merged into it for sent- encing purposes. Indiana case law holds that an underlying felony sentence merges into the sentence for felony murder. '^^ j^g supreme court dis- tinguished this case, however, because the defendant was convicted of attempted murder rather than felony murder. Therefore, the merger doctrine did not apply. Nevertheless, the court raised sua sponte the issue of whether the defendant was erroneously convicted of attempted felony murder under the Head decision. After reviewing the charging information, the court found that the defendant had been charged correctly with an attempted "knowing" murder rather than attempted felony murder. '^"^ "^IND. Code § 35-45-1-3(2) (1982). 9»443 N.E.2d 44 (Ind. 1982). For a complete discussion of the case, see Johnson, Criminal Law and Procedure, 1983 Survey of Recent Developments in Indiana Law, 17 Ind. L. Rev. 115, 127-28 (1984). ^^448 N.E.2d 10 (Ind. 1983). 'ooInd. Code § 35-42-1-1(2) (1982) provides: "A person who . . . kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery; commits murder, a felony." Id. ""448 N.E.2d at 15. '°H48 N.E.2d 1180 (Ind. 1983). '^'Id. at 1187 (citing Biggerstaff v. State, 432 N.E.2d 34, 37 (Ind. 1982); Williams V. State, 267 Ind. 700, 703, 373 N.E.2d 142, 144 (1978); Chandler v. State, 266 Ind. 440, 458, 363 N.E.2d 1233, 1243 (1977)). '°^448 N.E.2d at 1187. 1985] SURVEY—CRIMINAL LAW 171 In Taylor v. State, ^^^ the Indiana Court of Appeals evaluated the sufficiency of evidence supporting a reckless homicide conviction based on an automobile accident. The evidence indicated that the defendant ran a stop sign while driving forty miles an hour more than the posted limit and struck another vehicle, kiUing the driver and a passenger in that car. The defendant testified that he had consumed two beers on the day of the collision. He was charged with reckless homicide and driving while intoxicated.'^^ The defendant was acquitted of driving while intoxicated. The def- inition of "intoxicated" under the apphcable statute'^^ described intox- ication as being under the influence of intoxicants "such that there is an impaired condition of thought and action and the loss of normal control of a person's faculties to such an extent as to endanger any person. "'0^ The court of appeals held that the acquittal meant that the defendant's consumption of beer was totally irrelevant to the question of whether the defendant acted recklessly. '^^ The remaining facts that could be weighed in the recklessness equation focused almost exclusively on the issue of excessive speed. The court of appeals said it could consider "only the fact that Taylor was driving approximately forty miles per hour over the posted speed limit in de- termining whether he acted recklessly. "''^ The issue had not been directly answered by the trial court. Nevertheless, the court of appeals concluded that driving forty miles an hour over the posted limit constituted reck- lessness.'" The court found support in the reckless driving statute, which partially defines that offense as driving at "such an unreasonably high rate of speed . . . under the circumstances, as to endanger the safety or the property of others. ""^ The court stated: Initially, it would appear the Reckless Driving statute is of minimal assistance in resolving the issue before us, given the use therein of the word "recklessly." We believe, however, that the adverb "recklessly" was employed to lend flexibility to the operation of the statute. As we interpret the statute, Reckless Driving may be based on any one of the enumerated acts, but '°'457 N.E.2d 594 (Ind. Ct. App. 1983). "^Id. at 596-97. '°The defendant was charged under Ind. Code § 9-4-1-54 (1982), which was repealed in 1983 when Indiana's drunk driving laws were substantially revised. See Johnson, supra note 98, at 116. 'o«lND. Code § 9-11-1-5 (Supp. 1984). '°'457 N.E.2d at 597. The court of appeals also criticized the trial court's comments at sentencing, in which the trial judge stated his belief that the defendant was a drunken driver. Id. at 597 n.5. "°M at 597 (footnote omitted). '''Id. at 598. "Ud. (quoting Ind. Code § 9-4-1-5.6-1 (Supp. 1984)). 172 INDIANA LAW REVIEW [Vol. 18:157 proof thereof creates a presumption of recklessness which the defendant may rebut. Therefore, in certain circumstances, op- erating a motor vehicle at an "unreasonably high rate of speed" may be sufficient to support a conviction of Reckless Driving."^ Although the court of appeals said that operating a vehicle at an unreasonably high rate of speed might support a conviction of "Reckless Driving," it seems obvious from the context that the court meant to say "reckless homicide." Because the reckless driving statute itself spe- cifically prohibits an unreasonably high rate of speed, it would be a non sequitur to simply declare that unreasonable speed would be reckless driving. The court said that failure to adhere to the speed limit does not necessarily constitute recklessness, because a slight deviation from the limit would not create a great risk of danger. The court also pointed out that the legislature had not defined "unreasonably high rate of speed." Yet the court declared that a speed in excess of the speed Hmit by forty miles an hour was unreasonable and reckless. Added to the high rate of speed were the facts that the pavement was wet and that the defendant was unfamiliar with the area. The court of appeals also stated that its determination of recklessness would stand absent the reckless driving statute, since the defendant satisfied the general intent necessary to support a conviction for reckless homicide. '•'* Although the court of appeals held that the evidence was sufficient to sustain a reckless homicide conviction, it reversed the conviction because the trial court had prohibited the defense counsel's final argument to the jury regarding the difference between negligence and recklessness. The trial court ruled that such arguments were irrelevant. The court of appeals disagreed, stating that the discussion would have aided the jury in its dehberations.'*^ A close examination of Taylor reveals a number of interesting aspects. At first, the court seemed to say that excessive speed, by itself, will support a finding of reckless conduct. At the same time, however, the court pointed out that the road was wet and the defendant was unfamiliar with the area. One must conclude that the recklessness of the speed is measured not simply by miles an hour exceeding the limit, but also by the driving conditions. Nor is the recklessness of the speed determined solely by whether or not it exceeds a posted speed limit. Driving slightly faster than the speed limit, without more, would not indicate recklessness. One would reasonably suppose that driving within a posted speed limit would not necessarily indicate the absence of reckless conduct. For example, a driver could maintain "H57 N.E.2d at 598. "Vc^. The intent element for reckless homicide was defined as "a choice of action, either with the knowledge of serious danger to others involved therein or with the knowledge of facts which would disclose danger to a reasonable person." Id. (citations omitted). '''Id. at 599-600. 1985] SURVEY—CRIMINAL LAW 173 the fifty-five miles an hour speed Hmit on an icy road where traffic was heavy. This would certainly be reckless conduct. The court's opinion in Taylor suggests that the recklessness of the driver's conduct must be determined by all of the surrounding circumstances. The Taylor decision initially appears to adopt a rule equivalent to "recklessness per se": that is, if the State proves an "unreasonably high rate of speed" under the reckless driving statute, the State has at least shown a presumption of recklessness which the defendant must rebut. On the other hand, "unreasonably high rate of speed" seems to be simply a different way to say "recklessness." When the State has proven that a speed was "unreasonable" it has, in effect, made its prima facie proof of recklessness. It is no more of a presumption than exists when the State makes a prima facie case in any other criminal trial. The Taylor decision also indicates that an appellate court might be wiUing to focus on one particular act, such as the speeding in this case, and sustain a finding of reckless conduct. '^^ Previous appellate court decisions had been unwiUing to find reckless conduct based on a single factor, such as intoxication, no matter how severe the impairment of driving may have been.'*^ This was a very artificial distinction to make, and an extremely restricted way to view the recklessness of conduct. 6. Neglect.—In the last year, the Indiana legislature enacted a series of statutes designed to give certain adults the same protection from abuse provided for children. ^'^ First, a new crime, "exploitation of endangered adult," was created.''^ The battery statute also was amended to upgrade the crime to a Class D felony if bodily injury is inflicted on an endangered adult. '^^ The sentencing statute was amended to require a sentencing judge to consider whether the victim of the crime was sixty- "^The fact that the defendant also ran a stop sign was ignored in the case, except as a part of the statement of the facts. 457 N.E,2d at 596. '''Compare Williams v. State, 423 N.E.2d 598 (Ind. 1981) (blood alcohol level of .37 alone was insufficient evidence of criminal recklessness) with Carter v. State, 424 N.E.2d | 1047 (Ind. Ct. App. 1981) (evidence of intoxication combined with excessive speed and weaving off both sides of the road was sufficient evidence of reckless homicide); Salrin v. State, 419 N.E.2d 1351 (Ind. Ct. App. 1982) (.36 blood alcohol level plus crossing center Hne twice sufficient evidence of reckless driving). '^.-^ "^See supra note 17 and accompanymg text. "^Act of Feb. 24, 1984, Pub. L. No. 185-1984, § 3, 1984 Ind. Act 1501, 1503 (codified at Ind. Code § 35-46-1-12 (Supp. 1984)). The statute provides, in part, "[a] person who recklessly, knowingly, or intentionally exerts unauthorized use of the personal services of the property of: (1) an endangered adult ... for one's own profit or advantage, or for the profit or advantage of another, commits exploitation of . . . [an] endangered adult, a Class A misdemeanor." Ind. Code § 35-46-1-12 (Supp. 1984). •^"Act of Feb. 24, 1984, Pub. L. No. 185-1984, § 1, 1984 Ind. Acts 1501, 1502 (codified at Ind. Code § 35-42-2- 1(2)(E) (Supp. 1984)). 174 INDIANA LAW REVIEW [Vol. 18:157 five years of age or older. '2' Finally, persons who are aware of adult abuse are now required to report that fact.'^^ It was in this year of heightened awareness of the problem of adult abuse that the first case of adult neglect was decided. Bean v. State^^^ was based on a "very sordid story" '^'^ of the abuse and neglect of an adult incompetent that resulted in her death. One defendant, Judy Bean, was the victim's legal guardian. She was eventually convicted of voluntary manslaughter and neglect and received consecutive sentences of twenty years and four years. The other defendant was her husband, Raymond Bean. Although Raymond Bean was not a legal guardian of the victim, he was convicted of involuntary manslaughter and neglect and received consecutive sentences of eight and four years. Both of the defendants were prosecuted for neglect of a dependent. '^5 xhe defendant husband contended that he could not be prosecuted for neglect because, unlike his wife, he was not an appointed legal guardian of the victim. The supreme court, however, emphasized that the neglect statute clearly provides that one who has the care, custody, or control of a dependent may be held liable for acts that constitute neglect of a dependent. . . . There is no requirement in [Indiana Code section] 35-46-1-4 that the person charged with the crime be the legal guardian or natural parent of the child or incompetent adult. 126 According to the court, it was clear that the husband knew that the victim was a dependent and that both he and his wife were concerned with the care, custody, and control of the victim. Indeed, the court found that the husband at times exerted "abusive control" over the victim, and that his neglect was not merely passive. '^^ Alternatively, the court found that the defendant could also have been convicted of neglect as his wife's accomphce.'^^ '2'Act of Feb. 24, 1984, Pub. L. No. 181-1984, § 1, 1984 Ind. Acts 1489 (codified at Ind. Code § 35-38-1-7 (a)(4) (Supp. 1984)). •^^Act of Feb. 24, 1984, Pub. L. No. 185-1984, § 4, 1984 Ind. Acts 1501, 1503 (codified at Ind. Code § 35-46-1-13 (Supp. 1984)). '"460 N.E.2d 936 (Ind. 1984). '^'Id. at 938. '25/g?. The charges were brought under Ind. Code § 35-46-1-4, punishing neglect of a dependent. A "dependent" is defined as "a person of any age who is mentally or physically disabled." Ind. Code § 35-46-1-1 (1982). The "endangered adult" provisions, see supra note 17, were not in effect at the time, and it is not clear that the victim would have fit that definition because her age was not reported. '^H60 N.E.2d at 942. '^'Id. ^^^Id. Another important holding in Bean was that the husband could be convicted and sentenced for both involuntary manslaughter and neglect. Id. at 944. In Smith v. State, 408 N.E.2d 614 (Ind. Ct. App. 1980), the Indiana Court of Appeals held that a 1985] SURVEY—CRIMINAL LAW 175 Thus, the Bean decision clearly indicates that a neglect prosecution may be brought against an accused who is not the parent or legal guardian of the victim. The terms "care, custody, or control" are to be interpreted according to the facts of the particular case, not solely by reference to the legal relationship between the victim and the accused. This is important for family abuse situations like that revealed in Bean, also for mental institutions, nursing homes, or other institutions that are entrusted with the care, custody, or control of dependents. 7. Robbery.—In Simmons v. State,^^^ the court of appeals affirmed the defendant's robbery conviction. '^^ The facts revealed that the de- fendant entered a liquor store, approached the manager and demanded money. As the defendant ordered the manager, to open the register, he put his hand to a bulge at his waist. The manager thought he saw the outline of a revolver under the defendant's shirt. The manager handed over the money and the defendant left the store with $295.'^' The defendant was charged with robbery by threatening the use of force, rather than with robbery by putting the victim in fear.'^^ On appeal, the defendant argued that the evidence was insufficient to show that he threatened the use of force. The court of appeals, however, held that the appearance of having a gun, as observed by the robbery victim, was sufficient to prove "threatening the use of force," regardless of whether the victim was actually put in fear.'" The court said, '"threat- ening the use of force' . . . can be measured objectively without having to gauge the victim's reaction, "'^'^ while "putting in fear" is considered subjectively by looking at the reaction of the victim. In other words, one may rob a hero as well as a coward by threatening the use of force. If a person does not threaten or use force of any kind, but simply takes a victim's property by causing fear in an unduly timid victim, he has committed a different form of robbery. Finally, if the robber meets defendant could not be convicted of both manslaughter and neglect where one act of neglect was the underlying crime for both the neglect and manslaughter charges. The supreme court in Bean distinguished Smith on the ground that the neglect conviction in Bean could have been founded on a series of acts that spanned a period of three years, while the manslaughter conviction could have been based on the acts during the last two weeks of the victim's Hfe which led to her death. 460 N.E,2d 942-43. '^^55 N.E.2d 1143 (Ind. Ct. App. 1983). ''°/g?. at 1148. The defendant was charged under Ind. Code § 35-42-5-1 (1982) which provides in part: "A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear; commits robbery, a Class C felony." Id. '^'455 N.E.2d at 1144. '"See Ind. Code § 35-42-5-1. '"455 N.E.2d at 1148. '''Id. 176 INDIANA LAW REVIEW [Vol. 18:157 a person with no fear in his heart, and the robber takes his property by force or threat of force, he has again committed a robbery. Force and fear are generally considered alternatives. "[I]f there is force, there need be no fear, and vice versa. ''^^^ From an objective viewpoint, a person attempting to steal money who reaches toward a bulge under his shirt at his waist can be seen as threatening the use of force. From a subjective standpoint, a victim might be in fear because of such actions. Under either theory, Simmons illustrates that a defendant need not actually display a weapon to threaten force or create fear, nor is it necessary that the threat to use force be spoken. 8. Theft.—The law of theft developed significantly during the survey period. One major decision resulted from an investigation into the practices of vehicle transmission repair shops in Marion County. Harwei, Inc. V. State^^^ contains an illuminating discussion of the crime of theft by creating a false impression. In that case, a prosecutor's employee drove a car to a transmission shop and described the car's mechanical problems to the defendant. Despite the fact that the car was in certifiably good condition, with only one defective gear purposefully placed in the transmission, the defendant stated that the car's clutches and some transmission gears were ruined. They were replaced at a cost of $194. Two weeks later, a police officer drove a car that was in the same condition to the same shop, where the defendant told him that the transmission was beyond repair. The defendants installed a rebuilt trans- mission and converter for $502. Both drivers knew their cars' mechanical defects could have been remedied by replacing a gear without removing the transmission.'^^? jj^g defendants were charged with two counts of theft by creating a false impression. '^^ On appeal, the defendants argued that there was insufficient evidence to sustain their theft convictions because the victims in this case knew what was wrong with their transmission, so that a false impression was not created in their minds. The court of appeals agreed, and said that '"W. LaFave & A. Scott, Handbook on Criminal Law § 94, at 698 (1972) (foot- note omitted) [hereinafter cited as LaFave & Scott]. 'M59 N.E.2d 52 (Ind. Ct. App. 1984). '"/Id. at 1209-10. '»°M at 1211-12 (quoting Lance v. State, 425 N.E.2d 77, 78 (Ind. 1981) (citations omitted)). '«'459 N.E.2d at 1212. ''^Id. 1985] SURVEY—CRIMINAL LAW 187 search. The majority and dissent sharply disagreed on whether it was readily apparent that the other vehicles in the storage shed might have been evidence of a crime, and thus within the plain view doctrine. According to the dissent, when the officers were executing the warrant, it was obvious that they had come upon an illegal *'chop shop."'^^ If it were readily apparent that a chop shop operation was uncovered in Manning, then the officers should have had the authority to seize the vehicles as evidence of a crime. The dissent also stated that no illegal search occurred when the police recorded vehicle identification and license numbers because those identifying characteristics "are in plain view on all autos for the purpose of aiding identification. "•^'^ The dissent ignored the majority's observation that the police opened doors and hoods to obtain the vehicle identification numbers. The different statements of facts presented by the majority and dissent are crucial in explaining their different outcomes. If, as the dissent asserted, the pohce officers only observed vehicle identification numbers on a dashboard through the windshield or wrote down license numbers, such activity should be upheld under the plain view doctrine. If, as the majority stated, the police officers opened car doors and hoods to search for identification numbers, the plain view doctrine was inappHcable and the admissibility of the results must be justified on a different theory. It could be argued that such a search should be upheld because there is no expectation of privacy in a vehicle identification number, '^5 or that police should be permitted to search for the iden- tification number under a lesser standard than probable cause, such as reasonable suspicion. '^^ The facts in Manning indicated that the police officers could have met this lesser standard. Nevertheless, as written, the majority did not satisfactorily explain why dashboard-imbedded ve- hicle identification numbers or Hcense plate numbers were illegally seized by the poHce. It imphed that the officers should not have examined '"M at 1214 (Hoffman, J., concurring in part and dissenting in part). The dissent's description of the facts differed significantly from that of the majority: "Once inside [the shed], they [police officers] observed late model automobiles in various degrees of dis- mantlement. Cutting torches had been used to 'chop' cars that appeared too new and undamaged to be in a salvage yard. The locks on several vehicles had been punched out, and steering columns were mysteriously dismantled." Id. '''Id. at 1215. '''See W. LaFave, Search and Seizure § 2.5(d) (1978) (citing United States v. Polk, 433 F.2d 644 (5th Cir. 1970)). If there is a lesser expectation of privacy in vehicle identification numbers, that limited expectation would be further lessened in an auto salvage yard. See Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F.2d 1072 (7th Cir. 1983) (upheld administrative inspection warrants for the search of auto salvage yards). See also Ind. Code § 9-1-3.6-14 (Supp. 1984). ''^See 1 W. LaFave, supra note 185, at § 2.5(d) (citing United States v. Powers, 439 F.2d 373 (4th Cir. 1971); State v. Colon, 6 Conn. Cir. Ct. 722, 316 A.2d 797 (1973); Commonwealth v. Navarro, 2 Mass. App. Dec. 214, 310 N.E.2d 372 (1974)). 188 INDIANA LAW REVIEW [Vol. 18:157 what was in plain view before them once the particular car sought was not found. The plain view doctrine was also the focus of the Indiana Supreme Court in McReynolds v. State. ^^'^ In this case, police obtained a warrant to search the defendant's home. The only item listed in the warrant was the sawed-off barrel of a double-barrel shotgun that had been used to kill two persons and injure three others. In the course of his search, a police officer looked inside a cabinet large enough to conceal the gun barrel. Inside the cabinet, the officer discovered marijuana seeds in a clear plastic bag and seized the marijuana. The defendant argued that the marijuana was improperly discovered and should have been sup- pressed. '^^ There are three basic requirements for a search and seizure based on the plain view doctrine: (1) the officer must first make a lawful intrusion or lawfully be in a place where he can observe the evidence; (2) the officer must discover the evidence inadvertently; and (3) it must be immediately apparent that the items the officer observes are evidence of a crime, contraband, or otherwise subject to seizure. '^^ In McReynolds, the first requirement was met because the officers were on the premises pursuant to a valid search warrant. The officer who looked in the cabinet was properly doing so since it was in a place where the shotgun barrel might have been hidden. Second, the discovery of the marijuana was inadvertent because the poHce did not know in advance that the marijuana was there. In determining whether or not the third requirement had been sat- isfied, the court discussed whether the evidence inadvertently discovered in plain view must be connected in some way to the crime which gave rise to the initial intrusion. '^° If this were true, the marijuana would be suppressed because it was not related to the murders or the shotgun. The Indiana Supreme Court refused to place such a restriction on the plain view doctrine, and instead stated that the item seized need only be evidence of a crime, not evidence of the crime which gave rise to the search.'^' In this case, the officer testified at the suppression hearing that he knew the item was marijuana. Because the evidentiary value of the item seized was immediately apparent, the third requirement of the plain view doctrine was met. After McReynolds, it is clear that police need not ignore evidence of criminal activity that is in plain view simply because it is unrelated to the crime that gave rise to the police inves- tigation. •«M60 N.E.2d 960 (Ind. 1984). '««M at 962. '^"Id. (citing Texas v. Brown, 103 S. Ct. 1535, 1540 (1983)). 'M60 N.E.2d at 963. 1985] SURVEY—CRIMINAL LAW 189 c. Probable Cause Affidavits.—The Indiana Supreme Court explained the use of probable cause affidavits in Baker v. State. ^'^^ In that case, the defendant claimed an arrest warrant was defective because it was based on a probable cause affidavit that did not expressly state that the witnesses quoted therein spoke with personal knowledge and because the affidavit was not incorporated into the warrant. First, the supreme court held that the failure to incorporate the affidavit into the warrant was not a fatal defect when the warrant alone was sufficiently specific as to its object and scope. ^^^ By statute, the form of the warrant requires a description of the place to be searched and the property that is the subject of the search. '^^ Because there was no lack of specificity and no prohibited discretion vested in the police, the court concluded that the warrant was not totally defective. '^^ Second, the supreme court stated that because the probable cause affidavit was sufficient to support the warrant, it was reasonable to assume that the witnesses quoted therein were speaking about facts within their knowledge. The court said the defendant mistakenly relied on Madden v. State, ^^^ a decision based on a search warrant statute that had been amended twice since that case. After Baker, it appears that Madden has finally been laid to rest. During the survey period, the Indiana General Assembly again amended the arrest and search warrant statute to expand the potential bases for a finding of probable cause. ^^^ Previously, the law required that when probable cause is based on hearsay, the supporting affidavit must "con- tain rehable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished. "'^^ After the 1984 amend- ments, the law provides: When based on hearsay, the affidavit must either: (1) contain reUable information estabhshing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or (2) contain information that estabhshes that the totality of the circumstances corroborates the hearsay. '^^ '^H49 N.E.2d 1085 (Ind. 1983). See supra text accompanying notes 165-69. '^M49 N.E.2d at 1090. ''"Ind. Code § 35-33-5-3 (1982). '^^49 N.E.2d at 1090. '^^263 Ind. 223, 328 N.E.2d 727 (1975). ''^Act of Feb. 24, 1984, Pub. L. No. 177-1984, 1984 Ind. Acts 1478 (codified at Ind. Code § 35-33-5-2 (Supp. 1984)). ''«lND. Code § 35-33-5-2 (1982). '^IND. Code § 35-33-5-2 (Supp. 1984). 190 INDIANA LAW REVIEW [Vol. 18:157 Previously, the Indiana law codified the Aguilar-Spinelli two-pronged approach to demonstrating probable cause. ^^^ The Aguilar-Spinelli test was significantly modified by the United States Supreme Court in Illinois V. Gates.^^^ The new Indiana law reflects this modification. It presents alternative approaches to demonstrating probable cause when based on hearsay. The first is still the Aguilar-Spinelli test, and the second is the totality of the circumstances approach of Gates. 2. Pretrial Issues.—a. Grand Juries.—Under Indiana grand jury procedure, a target witness has the right to an attorney, including an appointed attorney. ^02 Before this year, however, there had been no statutory or recognized constitutional right^°^ to have counsel present with the witness in the grand jury room. The common practice has been for counsel to remain outside the grand jury room to consult with the witness if the witness has a question. This year the General Assembly amended the grand jury statutes to provide that a target witness may be assisted by an attorney in the grand jury room.^^"* The new statute provides: (a) A target subpoenaed under section 5(35-34-2-5] of this chapter is entitled to the assistance of his attorney when the person is questioned in the grand jury room, subject to this section. (b) The target's attorney: (1) must take an oath of secrecy administered by the foreman; (2) while in the grand jury room may not, without first obtaining the consent of the prosecutor and the foreman: (A) address the grand jury or the prosecuting attorney; (B) make objections or arguments; (C) question any person; or (D) otherwise participate in the proceedings; and (3) may advise the client so long as the conversation is not overheard by any member of the grand jury. (c) The court that impaneled the grand jury may remove any attorney from the grand jury room and may find him to be in contempt of court if the attorney has violated the requirements of subsection (b) or has otherwise disrupted or unnecessarily delayed the grand jury proceeding. ^o^ ^'^The two-pronged test takes its name from Spinelli v. United States, 393 U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964). ^«'103 S. Ct. 2317 (1983), reh'g denied, 104 S. Ct. 33 (1983). 2°^lND. Code § 35-34-2-5 (1982). 2°3United States v. Mandujano, 425 U.S. 564 (1976). ^o^Act of Mar. 8, 1984, Pub. L. No. 170-1984, § 3, 1984 Ind. Acts 1391 (codified at Ind. Code § 35-34-2-5.5 (Supp. 1984)). ^°'lND. Code § 35-34-2-5.5 (Supp. 1984). 1985] SURVEY—CRIMINAL LAW 191 Prosecutors operating under the new statute have reported that at- torneys for target witnesses have been actively involved in the proceedings. If the attorney for the witness asks permission to ask questions, the grand jury foreman will usually agree and the prosecuting attorney often will not want to disagree with the foreman. ^^^ Therefore, as a practical matter, the attorney for a target witness may have a significant role in grand jury proceedings. The Indiana Supreme Court also had an occasion to rule on the constitutionality of the grand jury witness immunity statutes. In In re Caito,^^^ the defendant was subpoenaed before a grand jury as a target witness. Upon his attorney's advice, Caito refused to testify after being sworn, except to identify himself. He claimed his answers might tend to incriminate him. The State moved to grant Caito use immunity under Indiana Code section 35-34-2-8,^°^ and requested that he answer a list of written questions. The court granted use and derivative use immunity and ordered Caito to answer questions. When he again asserted his privilege against self-incrimination, Caito was found in contempt. ^^^ The defendant challenged the constitutionality of the witness im- munity statutes as applied to target witnesses. The court said the immunity statute would be upheld as constitutional if it were found to be coextensive with the privilege against self-incrimination. ^lo The court reviewed the various forms of immunity: Three types of immunity may be granted a witness in exchange for his testimony: (1) transactional immunity: which prohibits the State from criminally prosecuting the witness for any trans- action concerning that to which the witness testifies; (2) use immunity: where the testimony compelled of the witness may not be used at a subsequent criminal proceeding; and (3) de- rivative use immunity: whereby any evidence obtained as a result of the witness' compelled testimony may not be admitted against him in a subsequent criminal prosecution. 2' ' The court explained that transactional immunity is constitutional because the witness granted it receives the same protection as if he had never testified. Contrarily, use immunity alone is not coextensive with fifth amendment protections because the compelled testimony may still be employed by investigators to obtain other incriminating evidence. The Indiana statute combines use and derivative use immunity, and as such ^°*This scenario is derived from the author's conversations with Indiana prosecuting attorneys since the statute became effective. ^0^459 N.E.2d 1179 (Ind. 1984). ^°«lND. Code § 35-34-2-8 (1982). ^'^459 N.E.2d at 1181. ''°Id. at 1182 (citing Kastigar v. United Sates, 406 U.S. 441 (1972)). ^"459 N.E.2d at 1182-83 (citations omitted). 192 INDIANA LAW REVIEW [Vol. 18:157 provides immunity that is coextensive to the privilege against self incrimination, according to the Indiana Supreme Court. ^'^ b. Change of Judge.—In 1984, the Indiana legislature attempted to reinstate the right to an automatic change of judge. ^'^ Activity on the part of the Indiana Supreme Court, however, indicates that the legis- lature's attempt has failed. In State ex rel. Gaston v. Gibson Circuit Court,^^'^ the supreme court found that a previous legislative effort to restore the right to an automatic change of judge was in conflict with Criminal Rule 12.^'^ Because the statute was construed to be procedural in nature and in conflict with Criminal Rule 12, the court held that Criminal Rule 12 controlled and the statute was declared a nullity. ^'^ Shortly after Gaston, an original action challenging the 1984 version of the change of judge statute came before the supreme court in State ex rel. Jeffries v. Lawrence Circuit Court.^^^ The court, following Gaston, once again found the legislative enactment in conflict with Criminal Rule 12 and held that Criminal Rule 12 controlled changes of judge. There remains no right to an automatic change of judge. Another decision concerning changes of judge was decided by the court of appeals in Hobbs v. State.^^^ In that case the defendant contended that he was denied a fair trial because the prosecutor always has the right to a change of judge by virtue of his authority to select the court ^'V