Indiana Law Review


Update—Criminal Law and Procedure
Susan D. Burke*

Introduction

During 1992, the United States Supreme Court issued only a limited

number of significant decisions dealing with criminal law and procedure.

Conversely, the Indiana Supreme Court granted transfer of a large

number of Indiana Court of Appeals decisions and further evinced its

apparent desire to adopt a formal set of evidentiary rules for Indiana.

Additionally, the court continued to exercise its right to review and

revise criminal sentences found to be inappropriate or contrary to the

Indiana Constitution. The court also expressed its interest in the provision

of legal services for indigent criminal defendants in Indiana.

Furthermore, two statutory enactments effective July 1, 1992, have

generated considerable debate since their effective date, but resolution

of the issues they raise must await the appellate courts' consideration.

Because of the high volume of significant state court decisions and the

availability of other sources reviewing United States Supreme Court

decisions, this Article will concentrate on Indiana law.

I. Statutory Enactments

A new provision that allows incarcerated criminal defendants to
petition for a reduction of their sentence under certain circumstances

became effective July 1, 1992. Indiana Code section 35-38-1-23, ' the

* Staff Attorney, Indiana Public Defender Council. B.S., 1973, Indiana University;

M.S., 1975, Purdue University; J.D., 1985, Indiana University School of Law—Indianapolis.
The author gratefully acknowledges the assistance in citation to authority of Jack Kenney,

J.D., 1991, Indiana University School of Law—Bloomington.
1. Ind. Code § 35-38-1-23 (Supp. 1992). The statute provides:

(a) Notwithstanding IC 35-50-2-2, a person may petition the sentencing court
for a reduction of sentence if:

(1) the person has been sentenced to more than four (4) years imprisonment;

(2) the person is in credit Class I;

(3) there are less than two (2) years remaining until the person's earliest possible

release date;

(4) the person has successfully completed an educational, a vocational, or a

substance abuse program that the department has determined to be appropriate;

and

(5) the person has demonstrated a pattern of behavior consistent with evidence



892 INDIANA LAW REVIEW [Vol. 26:891

"earned credit time" statute, allows even those with nonsuspendible

sentences to receive a reduction in their remaining sentence if they have

participated in certain therapeutic, training, or rehabilitative programs

while incarcerated. The grant of up to a two-year reduction in sentence

is at the discretion of the trial court, but does not require the approval,

or even the participation, of the prosecutor, as does the older sentence

modification statute. 2 Additionally, the earned credit time statute may
not be used unless the defendant has received greater than a four year

sentence and less than two years remain until the inmate's earliest release

date. 3 In contrast, the older modification statute, which applies only to

at least partially suspendible sentences, is more often applied for within

the first year of the prisoner's incarceration.

Although Indiana Code section 35-38-1-23 makes no mention of any
State involvement in the procedure for sentence reduction, a question

has been raised as to whether those defendants sentenced for a term of

years through plea agreements should be eligible for its benefits. This

question arises from the doctrine established in State ex rel. Goldsmith

v. Marion Superior Courts relating to the older sentence modification.

In Goldsmith, the Indiana Supreme Court held that a defendant sentenced

for a specific term of years under a plea agreement could not receive

of rehabilitation.

(b) Upon the filing of a petition under subsection (a), the court may reduce
the sentence of the person by up to two (2) years upon a finding that:

(1) all conditions of subsection (a)(1) through (a)(5) exist; and

(2) reduction of the sentence is in the best interests of justice.

(c) The court may grant or deny the petition without a hearing and without
making written findings or conclusions.

2. Id. § 35-38-1-17 (Supp. 1992). The statute provides in relevant part:

Within three hundred sixty-five (365) days after:

(1) the defendant begins serving his sentence;

(2) a hearing at which the defendant is present and of which the prosecuting

attorney has been notified; and

(3) obtaining a report from the department of correction concerning the

defendant's conduct while imprisoned; the court may reduce or suspend the
sentence. The court must incorporate its reasons in the record.

(b) If more than 365 days have elapsed since the defendant began serving

the sentence, and after a hearing at which the convicted person is present the

court may reduce or suspend the sentence, subject to the approval of the
prosecuting attorney. The court must give notice of the order to reduce or

suspend the sentence under this section to the victim (as defined in IC 35-35-

3-1) of the crime for which the defendant is serving the sentence.

(c) The court may suspend a sentence for a felony under this section only
if suspension is permitted under IC 35-50-2-2.

3. Id. § 35-38-1-23.

4. 419 N.E.2d 109 (Ind. 1981).



1993] CRIMINAL LAW 893

a modification of sentence under Indiana Code section 35-38-1-17, unless
the right to receive such a modification was preserved in the agreement. 5

The rationale of Goldsmith was that if the defendant were allowed such

a modification, it would undermine the
'

"bargain" that had been ne-

gotiated in the plea agreement.6

It might be argued to the contrary, however, that those sentenced

under plea agreements should be eligible for relief under Indiana Code
section 35-38-1-23, because the statute on its face addresses rehabilitation

shown during the period of incarceration, something that could not have

been known at the time of plea bargaining and sentencing. The fact
that the statute does not call for the approval or participation of the

State in the process, and that it can be used in cases where the original

sentence was nonsuspendible, might also favor an argument for the

availability of the reduction to those sentenced by plea agreements.

Finally, it might be argued that the legislature, in omitting State approval

and participation from the new reduction procedure, specifically intended
to allow for reduction without consideration of the State's original

position regarding sentencing.7 Ultimate resolution these issues will rest

with the appellate courts.

Another statutory provision that seems sure to foster continuing

controversy is Indiana Code chapter 6-7-3, Indiana's Controlled Substance
Excise Tax. These statutes are nominally tax provisions; however, their

impact on criminal practice will be significant. In part, the statutes
provide that any controlled substances delivered, possessed or manu-
factured in violation of Indiana Code chapter 35-48-4 or 21 U.S.C. §§
841-85 are subject to the tax.8 The tax is assessed per gram of pure,

impure, or diluted substance, 9 and varies from ten dollars per gram to
forty dollars per gram. The more commonly possessed substances, such
as cocaine and marijuana, are taxed at the forty dollar per gram rate. 10

The tax is to be paid when the person receives delivery of, takes
possession of, or manufactures the substance. 11 When the tax is paid,
the department of revenue is to issue evidence of payment to the taxpayer,

5. Id. at 114.

6. Id.

7. Former Sen. Edward A. Pease, who was the original author of this legislation
and Chairman of the Indiana Senate Judiciary Committee, indicated by affidavit that the

intent of the bill was to allow for reduction of sentences which were imposed through

plea agreements. The use of such affidavits to discern legislative intent is questionable,

however. See, e.g., O'Laughlin v. Bartin, 571 N.E.2d 1258, 1260-61 (Ind. 1991).

8. Ind. Code § 6-7-3-5 (Supp. 1992).
9. The quantity of impure or diluted substance is counted so long as there is a

detectable quantity of the pure controlled substance, Id. § 6-7-3-6(b) (Supp. 1992).

10. Id. § 6-7-3-6(a)(l) (Supp. 1992).

11. Id. § 6-7-3-8 (Supp. 1992).



894 INDIANA LAW REVIEW [Vol. 26:891

which is valid for forty-eight hours after payment is made. 12 The taxpayer

must have evidence of payment in his or her possession to avoid the

nonpayment penalties. 13 Possession of the prohibited substances without

laving paid the tax is a class D felony, unless the criminal act giving
rise to the tax liability is a class A misdemeanor. 14 Failure to pay the
tax also subjects the person to a 100% penalty, 15 thus effectively doubling
the tax amount. An assessment for the tax due under the statute is a
jeopardy assessment, 16 which allows for immediate seizure of assets prior

to hearing. 17 The statute also provides that up to ten percent of the tax
amount collected may be paid to anyone providing information leading
to its collection and, that if the information is provided by a law

enforcement agency, the agency shall receive thirty percent of all amounts

collected. 18

Obviously, there has not been a rush of those seeking to pay this

new tax, 19 even though failure to pay results in a doubling of the

assessment and possible prosecution for a class D felony, and even
though the statute states that "[a] person may not be required to reveal
the person's identity at the time the tax is paid."20 There have been a

number of assessments issued, however, and the monetary amount of
the assessments has been staggering. 21 The amount is not surprising

because marijuana is taxed at forty dollars per gram plus an additional

forty dollars per gram penalty for failure to pay the tax. Given the

number of grams per ounce, twenty-eight, possession of just one ounce
of marijuana, including stems, dirt, and any other adulterants, would

result in an assessment of $2,240.

Although collection of such massive amounts of money would seem
to be problematical at best, the provision for immediate seizure and

levy of assets has implications far beyond the collection of the whole

amount. For example, what will be the effect on the already overburdened

12. Id. § 6-7-3-10 (Supp. 1992).

13. Id.

14. Id. § 6-7-3-1 1(b) (Supp. 1992).

15. Id. § 6-7-3-1 1(a) (Supp. 1992).

16. Id. § 6-7-3-13 (Supp. 1992).

17. Id. § 6-8.1-5-3 (Supp. 1992).

18. Id. § 6-7-3-16 (Supp. 1992).

19. In the first three months after the effective date of the tax, only one instance

of taxpayer payment was noted by the Indiana Department of Revenue. Indianapolis

Star, Oct. 9, 1992, at B-l.

20. Ind. Code § 6-7-3-8 (Supp. 1992).
21. As of Dec. 28, 1992, assessments under the new tax totalled $49,345,679.

Telephone Interview with Commissioner's Office of the Indiana Department of Revenue

(Dec. 28, 1992).



1993] CRIMINAL LAW 895

public defender system22 if those who initially have assets to retain counsel
for any accompanying or resultant criminal prosecution suddenly have

insufficient assets to do so? Additionally, if a person's assets have been

seized, will he or she be able to effectively pursue any of the statutory

remedies to contest the tax or seizure?

Other issues that may arise and be litigated in regard to the new
statutory scheme include the adequacy of its protection against self-

incrimination, and the impact of the Fourth Amendment of the United
States Constitution and Article I, section 11 of the Indiana Constitution23

on the use of illegally seized evidence to support the tax assessment.

Challenges based on whether the tax is truly a "excise tax" rather than

a criminal penalty might also be expected—especially because the tax
and penalty frequently far exceed the value of the taxable item. 24 If the

tax is considered a fine or penalty, rather than a valid tax, additional

issues arise, such as: double jeopardy concerns when a criminal pros-
ecution is also involved25 and whether the possible disposition of the

monies collected is proper under the Indiana Constitution. 26 A number
of other states have similar statutes,27 many of which have been upheld
against constitutional challenges, 28 but the various statutory provisions

are not identical, and it remains to be seen whether Indiana's statute

will withstand the challenges expected.

While an exhaustive analysis of possible areas of contention regarding

the new statutory scheme is beyond the scope of this note, it certainly

appears that the excise tax will continue to foster considerable debate

and litigation in the near future.

22. On Nov. 9, 1992, the Indiana Supreme Court recognized the problems with
the public defender system in Indiana when it issued an order announcing the possible

use of its rule-making authority to reform this system, and soliciting comments from those

with an interest in the problem. Order Seeking Comment on Petition for Rule Making,
Cause No. 49S00-9210-MS-822.

23. U.S. Const, amend. IV. The Fourth Amendment to the U.S. Constitution
states in relevant part that "[t]he right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and seizures, shall not be violated."

Article I, § 11 of the Indiana Constitution contains identical language.

24. For example, the one ounce of marijuana mentioned previously would have

a tax and penalty totalling $2,240, far exceeding its market value.

25. See, e.g., United States v. Halper, 490 U.S. 435 (1989).

26. Article VIII, § 2 of the Indiana Constitution provides that the Common School
Fund consists of "the fines assessed for breaches of the penal laws of the State," and

"all forfeitures which may accrue." Ind. Const, art. VIII, § 2.
27. Some of the other states with similar statutory schemes include Minnesota,

Florida, Alabama, Colorado, Illinois, and Wisconsin.

28. See, e.g., Briney v. State Dep't of Rev., 594 So.2d 120 (Ala. Civ. App. 1991),

cert, denied, 1910 187 (Ala. 1992); Harris v. Department of Revenue, 563 So.2d 97 (Fla.

App. 1990); Sisson v. Triplett, 428 N.W.2d 565 (Minn. 1988).



896 INDIANA LAW REVIEW [Vol. 26:891

II. Case Law Decisions

A. Evidentiary Decisions

The Indiana appellate courts issued a number of decisions this year
that will affect the admissibility of evidence in criminal trials. The Indiana

Supreme Court continued to consider the adoption of a standardized

system of written evidentiary rules, whether through its rule-making

powers,29 or through a more piecemeal, case-by-case process. 30 Probably
the most significant 1992 decision in this regard is that rendered in

Lannan v. State? 1 wherein the Indiana Supreme Court rejected Indiana's

long-standing use of the Depraved Sexual Instinct (DSI) rule32 as a special

exception to the general prohibition against the use of other misconduct

as substantive evidence to show the guilt of the accused.33

Although upholding the defendant's conviction in Lannan, the court

found that consideration of evidence of the defendant's depraved sexual

instinct as substantive evidence of guilt in certain sex offense trials34

29. Pursuant to its rule-making authority, the Indiana Supreme Court has established

an ad hoc committee with representatives from throughout the State to study and propose

a system of written rules of evidence. In re the Appointment of Supreme Court Committee

On Rules Of Evidence, 602 N.E.2d 137 (Ind. 1992).
30. See, e.g., Modesitt v. State, 578 N.E.2d 649 (Ind. 1991) (abandoning the

Patterson rule and adopting Fed. R. Evid. 801 (d)(1)(A) regarding hearsay testimony);

Thomas v. State, 580 N.E.2d 224 (Ind. 1991) (adopting Fed. R. Evid. 804(b)(3) regarding
admissibility of statements against penal interest); see also the more recent decision in

Nunn v. State, 601 N.E.2d 334, 338 (Ind. 1992) (adopting Fed. R. Evid. 609(c) regarding
impeachment of a witness with a prior conviction for which he had been pardoned).

31. 600 N.E.2d 1334 (Ind. 1992).

32. The DSI rule allowed for admission of other incidents of sexual "misconduct"

under the theory that the defendant possessed a "depraved sexual instinct" which caused

him or her to repeatedly commit certain kinds of aberrant sexual acts. These other acts

were admissible to show that it was more likely than not that the defendant acted in

conformity with his or her deviant sexual character. See, e.g., Stwalley v. State, 534

N.E.2d 229 (Ind. 1989); Kerlin v. State, 265 N.E.2d 22 (Ind. 1970).

33. Lannan, 600 N.E.2d at 1339. The general rule against the use of other mis-

conduct evidence prohibits the use of such evidence to show that the defendant has a

propensity to engage in criminal conduct. 12 Robert L. Miller, Indiana Evidence §
404.201 (1984) (Supp. 1993). There are, however, certain exceptions to this rule, such as

allowing admission of prior acts that are very similar in nature and show a common
scheme or plan; acts that go to the defendant's identity or motive when they are at issue;

or acts that negate the defenses of mistake or accident. See 12 id. § 404.20. Additionally,

such acts are not admissible if they are too remote in time, otherwise of questionable

reliability, or greatly prejudicial. 12 id. § 404.203-04.

34. DSI evidence was most commonly used in prosecutions for child molestation

and deviate conduct, but was not admissible in prosecutions for rape. 12 Miller, supra

note 33, § 404.216.



1993] CRIMINAL LAW 897

when the evidence would not ordinarily be admissible under the other

misconduct rule, was no longer justified. 35 The court rejected any re-

cidivism argument to justify the old DSI rule, noting that despite the

fact drug dealers are high recividists, evidence of other similar misconduct

is not admissible in their prosecutions unless it fits within the standard

exceptions to the prohibition of such evidence. 36 The court also rejected

justification for this special rule based on one of its original premises

for admission: that juries would be unlikely to believe the complaining

witness's claim that such an event occurred unless it also heard evidence

the defendant possessed a depraved sexual instinct. This premise was

rejected because, in the present day and age, the layperson is all too

familiar with allegations of child molesting.37

The court therefore adopted Federal Rule of Evidence 404(b)38 in

its entirety, 39 and noted there would still be a number of instances in
which DSI evidence would be admissible against the defendant under
the new standard. 40

Although the court in Lannan decided the adoption of Fed. R. of
Evid. 404(b) would be effective from the date of the decision forward,41

in another decision, it applied the rule to a case in which review was

still pending. In Pirnat v. State, 42 the defendant had appealed his con-

viction, in part based on the admission of DSI evidence. The court of

appeals affirmed his conviction, and he petitioned for transfer to the

Indiana Supreme Court. Because the Petition for Transfer was still

pending when Lannan was decided, the court remanded the case to the
court of appeals for reappraisal in light of the new rule.43

35. Lannan, 600 N.E.2d at 1339.

36. Id. at 1336-37. See, e.g., Conklin v. State, 587 N.E.2d 725 (Ind. Ct. App.

1992) (finding evidence that the defendant had sold an informant drugs in the past did

not fit within the exception to the prohibition of other crimes evidence, and was therefore

not admissible). This holding in Conklin was affirmed on transfer, 596 N.E.2d 1369 (Ind.

1992), although the case was remanded in part for retrial on other grounds.

37. Lannan, 600 N.E.2d at 1337.

38. The rule states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident, pro-

vided that upon request by the accused, the prosecution in a criminal case shall

provide reasonable notice in advance of trial, or during trial if the court excuses

pretrial notice on good cause shown, of the general nature of any such evidence

it intends to introduce at trial.

Fed. R. Evid. 404(b).

39. Lannan, 600 N.E.2d at 1339.

40. Id. at 1339-40.

41. Id. at 1339.

42. 600 N.E.2d 1342 (Ind. 1992).

43. Id. More recently, the new rule regarding DSI evidence was applied to a case



898 INDIANA LAW REVIEW [Vol. 26:891

In another decision dealing with a sex offense, the court held in

Sims v. Stated that statements made to a sex offender counselor were
inadmissible against the defendant at trial. 45 Sims was on trial for child

molesting and had been convicted previously of sexual battery. As a
condition of his probation for the previous conviction, Sims was required

to attend and complete sex offender treatment. He was in treatment for
seventeen months, and at the subsequent child molesting trial, the coun-

selor was permitted to testify as to details related by Sims in counseling. 46

The counselor was also permitted to give his clinical observations that

Sims did not respond well to treatment and fit the pattern of a * 'regressive

pedophile."47

Indiana Code section 25-23.6-6-1, making communications between
a social worker and client privileged, was not yet in effect at the time

of Sim's trial, and the communications did not fall within the physician

patient privilege.48 Nevertheless, the court still applied the privilege based

on the same principle underlying the statute and the physician-patient

privilege: that protecting counselor-patient communications promotes suc-

cessful treatment by ensuring full disclosure between the counselor and

patient. 49

The court also found admission of the counselor's testimony to be

tantamount to a circumvention of the defendant's Fifth Amendment
rights. 50 The court reasoned that because Sims was required to seek

treatment, he probably believed his communications would be confi-

dential, and failure to disclose potentially incriminating evidence could

have subjected him to further penalty for refusing to comply with the

court's order. 51 Because evidence Sims was compelled to reveal was

improperly used to his prejudice, the court decided he was entitled to

a new trial where such evidence would be excluded. 52

that was tried before the rule was announced but which was still pending on appeal,

althouth the court of appeals noted an apparent discrepancy regarding the retroactive

application of Lannan. Vanover v. State, 605 N.E.2d 218, 219-20 (Ind. Ct. App. 1992).

See also Moran v. State, 604 N.E.2d 1258, 1262 (Ind. Ct. App. 1992) (applying the

Lannan rule to a pending appeal).

44. 601 N.E.2d 344 (Ind. 1992) This decision was also rendered on transfer of a

court of appeals decision which had reversed the defendant's conviction on other grounds,

Sims v. State, 591 N.E.2d 1044 (Ind. Ct. App. 1992).

45. Sims, 601 N.E.2d at 346-47.

46. Id. at 345.

47. Id.

48. Id. at 346-47.

49. Id.

50. Id. at 346.

51. Id.

52. Id. at 347.



1993] CRIMINAL LAW 899

The Indiana Supreme Court granted transfer of yet another court
of appeals decision to discuss the admissibility of expert testimony on

the issue of whether a defendant's personality profile was consistent with

the formulation of the intent to commit murder. In Byrd v. Stated the
court reversed the appellate court's decision that such testimony was

admissible. 54 Byrd had sought to admit expert psychiatric testimony that

his Minnesota Multiphasic Personality Inventory (MMPI) profile was
inconsistent with formulating the intent to commit intentional murder.
In finding such testimony properly excluded by the trial court, the Indiana

Supreme Court found the proffered testimony was really character ev-

idence. 55 The court noted that although defendants may offer evidence
of their good character through their reputation, it is generally admitted

through lay testimony of those who knew their reputation prior to the
instant offense.56 The court also reiterated the general rule that evidence
of the defendant's character is not admissible to prove he acted in accord

therewith on a particular occasion. 57

The court found that in the instant case, the character evidence was
being offered through an expert who based his opinion on MMPI results
and the defendant's behavior after the offense.58 Although MMPI-based
testimony has been admitted in Indiana on the issue of the defendant's
potential for rehabilitation, the court found no suggestion that the MMPI
is an accurate indicator of whether the defendant committed the charged

offense. 59 The court held that defendants may present evidence of their
good character only for particular traits relevant to the acts charged.

Because the expert's testimony in this case was about the defendant's

character in general, it did not constitute evidence of a particular character

trait and was therefore properly excluded. 60

Despite the court's reversal on this issue, however, the cause was
still remanded for retrial on an issue on which the two appellate courts
agreed.61 In addition to excluding the expert testimony on character, the
trial court had also excluded expert testimony concerning the consistency

of the defendant's claimed memory loss with the condition of retrograde
amnesia. The court of appeals found this exclusion to be erroneous. 62

53. 593 N.E.2d 1183 (Ind. 1992)

54. Id. at 1187.

55. Id.

56. Id. at 1184-85.

57. Id.

58. Id. at 1187.

59. Id.

60. Id.

61. Id. at 1188.

62. Byrd v. State, 579 N.E.2d 457, 462 (Ind. Ct. App. 1991).



900 INDIANA LAW REVIEW [Vol. 26:891

The court noted that there had been no dispute as to the expert's
qualifications, and although Byrd had not raised his memory loss as a
defense to the charged conduct, he had attempted to use it to explain

why he could not remember what happened on the night the victim was
murdered. The court observed that the State had missed few opportunities

to attack the defendant's credibility by questioning the validity of his

claimed memory loss, and therefore the disputed testimony was related
to the issue of credibility. 63 Although the expert's testimony tended to

show the defendant was credible, the court found it did not rise to the

level of prohibited direct testimony as to his credibility and should have

been admitted. 64 The supreme court agreed with the court of appeals

on this issue, and found remand for retrial was appropriate.65

Other evidentiary decisions of note include Taggart v. State, 66 Driver

v. State,
61 and McKeown v. State. 68 In Taggart, the supreme court found

reversible error in the admission of a nontestifying codefendant's redacted

confession because there was other evidence presented at trial which

linked the defendant to the confession, and no limiting instruction was

given. 69 In so finding, the court retroactively applied the rule announced

in Richardson v. Marsh,10 that admission of redacted confessions of

codefendants that incriminate the defendant only through linkage by

other evidence, is a violation of the right to confrontation unless there

is a limiting instruction advising the jury that the confession applies

only" to the confessor. Because Taggart's conviction rested largely on

the testimony of witnesses whose credibility was crucial, the error in

admission of his codefendant's confession was held to require reversal. 71

In Driver, the court of appeals considered the constitutional right

to face-to-face confrontation previously set forth in Brady v. State.12

The court in Driver found this right was abrogated by the use at

defendant's second trial of the recorded testimony from a witness at

the first trial who died prior to the second. 73

Driver's first trial had been held in his absence. It was later de-

termined that he did not knowingly, voluntarily, and intelligently waive

his right to be present at that trial, and he was therefore granted a

63. id.

64. Id.

65. Byrd, 593 N.E.2d at 1188.

66. 595 N.E.2d 256 (Ind. 1992).

67. 594 N.E.2d 488 (Ind. Ct. App. 1992).

68. 601 N.E.2d 462 (Ind. Ct. App. 1992).

69. Taggart, 595 N.E.2d at 258.

70. 481 U.S. 200 (1987).

71. Taggart, 595 N.E.2d at 258.

72. 575 N.E.2d 981 (Ind. 1991).

73. Driver v. State, 594 N.E.2d 488, 489-90 (Ind. Ct. App. 1992).



1993] CRIMINAL LAW 901

second trial. 74 At his second trial the testimony of the deceased witness

was admitted against him. 75 The court of appeals held that the admission
of this testimony denied the defendant his right to confrontation. 76

The importance of raising objections to preserve error was emphasized
in McKeown, in which a relevance objection to admission of documents
relating to a previous case was considered insufficient to preserve the

issue for appeal. 77 McKeown was on trial for Operating While a Habitual
Traffic Violator, and the documents in question came from a previous

case where he had been charged with Operating While Suspended. The

objection made was "[y]our honor, the matter that we are addressing
here today happened in March of 1989. To present court documents of
something that happened in 1987, I see absolutely no relevance." 78

Although the appellate courts seem amenable to carefully considering a

variety of evidentiary matters, it also seems clear from the decision in

McKeown, as well as similar decisions, that they must be scrupulously
and very specifically preserved.

B. Sentencing Issues

Another area in which the Indiana Supreme Court was particularly

active was in the review of criminal sentences. Although in 1970 the

Indiana Constitution was amended to give the court power to review
and revise all sentences,79 and in 1978 the Indiana Rules of Appellate

Procedure added provisions for review of criminal sentences, 80 the court's

use of this authority was rare until recently. 81 In January, 1992, however,

the supreme court issued three decisions in which it exercised the power

and determined that the sentences imposed were manifestly unreasonable.

In Wilson v. State*2 the defendant had received the maximum four
year sentence for a D felony theft, plus a habitual offender enhancement

74. Id. at 489.

75. Id.

76. Id.

11. McKeown v. State, 601 N.E.2d 462, 465 (Ind. Ct. App 1992).
78. Id.

79. Ind. Const, art. VII, § 4.

80. Rules for the Appellate Review of Sentences, vacated Jan. 1, 1990 (now found

in Ind. App. R. 17).

81. Significant use of this power appeared to begin in 1990, when the supreme
court decided Clark v. State, 561 N.E.2d 759 (Ind. 1990), and found that under the

circumstances presented, a 30-year habitual offender enhancement violated the propor-

tionality requirement of Article I, Section 16 of the Indiana Constitution. Id. at 766. The

next year, in Best v. State, 566 N.E.2d 1027 (Ind. 1991), the court also found that while

a thirty year enhancement was not entirely disproportionate, the same constitutional

provision limited the enhancement to 10 years. Id. at 1032.

82. 583 N.E.2d 742 (Ind. 1992).



902 INDIANA LAW REVIEW [Vol. 26:891

of thirty years. The supreme court granted transfer of a memorandum
court of appeals decision upholding the conviction and sentence and

concluded that in light of the offense and character of the offender,

and the fact the prior convictions had occurred when the defendant was
in his twenties and while still on parole, a thirty-four year sentence was

manifestly unreasonable.83 The court then remanded the cause for im-
position of a two year D felony sentence for theft, plus an enhancement
of only ten years for the habitual offender finding.84

In Saunders v. State*5 the supreme court also found a sentence

manifestly unreasonable when it granted transfer of a court of appeals
decision that had upheld a sentence for multiple counts of dealing and

conspiracy to deal controlled substances. 86 In sentencing Saunders to a

total of 140 years, the trial court had relied on his long history of
criminal activity; the fact the crimes were committed while on parole;

and the likelihood that the defendant could commit another crime. 87 The

supreme court found the defendant's criminal history justified making

his multiple dealing convictions consecutive as well as making his multiple

conspiracy convictions consecutive, but found that also ordering the

dealing and closely-related conspiracy convictions to be served consec-

utively to each other was manifestly unreasonable. 88 The cause was

therefore remanded for imposition of a total sentence of seventy years. 89

The court had occasion to review the reasonableness of an enhanced

murder sentence in Harrington v. State. 90 Harrington was convicted of

murder and received the maximum sixty-year sentence. In imposing this
enhanced sentence, the trial court relied on the following aggravators:

(1) the defendant was in need of correctional or rehabilitative treatment

in a penal facility, (2) imposition of a reduced sentence would depreciate

the seriousness of the crime, and (3) the facts and circumstances sur-

rounding the crime were aggravating.91 The trial court found the miti-
gating factors to be the defendant's lack of a criminal history and the

fact he had led a law-abiding life for a substantial period of time before

the crime. 92 The supreme court held the only relevant and applicable

aggravator should have been the body of the trial evidence, and that

83. Id. at 744.

84. Id.

85. 584 N.E.2d 1087 (Ind. 1992)

86. Saunders v. State, 562 N.E.2d 729 (Ind. Ct. App. 1991)

87. 584 N.E.2d at 1089.

88. Id.

89. Id.

90. 584 N.E.2d 558 (Ind. 1992).

91. Id. at 565.

92. Id.



1993] CRIMINAL LAW 903

this aggravator, standing in opposition to the weight of the evidence in

mitigation, was clearly insufficient to support a twenty-year sentence

enhancement.93 The cause was therefore remanded for imposition of the

presumptive forty year sentence. 94

Although the Indiana Supreme Court appears willing to consider

revising those sentences it feels are unreasonable or constitutionally

impermissible, such revision does not occur in every instance. The court

refused to grant a petition for transfer of the court of appeals decision

in Sowell v. State.95 Sowell received a sentence of eleven years for

prostitution. His underlying conviction was enhanced to a D felony
because of his prior convictions. He received the maximum D felony
sentence of three years, which was further enhanced by eight years due

to his status as a D felony habitual offender. 96 The same prior felonies
were used both for elevation of the offense to a D felony, and for the
habitual offender determination. Sowell apparently had nine convictions

for prostitution in the last ten years, plus several misdemeanor convic-

tions. The court of appeals found that the nature of the present offense

alone did not justify the enhancements but that, considering the defen-

dant's long history of prior convictions, the enhancement was not un-

reasonable. 97

The appellate courts have also looked at the necessary findings for
aggravation of sentences generally, as well as whether sentences should

be served consecutively or concurrently. In May v. State,98 the court of
appeals held that an adequate explanation for enhanced sentences must

include at least a list of significant aggravating and mitigating factors;

specific reasons why each is aggravating and mitigating; and an evaluation
and balancing of the factors.99 Additionally, in Ray v. State, 100 the
appeals court held that even where the imposition of a consecutive

sentence is mandatory under Indiana Code section 35-50-1 -2(b), a state-
ment on the record of the reasons for imposing the consecutive sentence

is still required. 101

The courts also made it clear that unless a trial court is required
to impose its sentence consecutively to another sentence pursuant to

Indiana Code section 35-50-1-2, it lacks authority to impose the sentence

93. Id.

94. Id.

95. 590 N.E.2d 1123 (Ind. Ct. App. 1992), trans, denied.

96. Id. at 1124.

97. Id. at 1126.

98. 578 N.E.2d 716 (Ind. Ct. App. 1991).

99. Id. at 723 (citing Robinson v. State, 477 N.E.2d 883 (Ind. 1985).

100. 585 N.E.2d 36 (Ind. Ct. App. 1992).

101. Id. at 37.



904 INDIANA LAW REVIEW [Vol. 26:891

consecutively to one imposed at another time. 102 In Baskin v. State,m
the court relied on an earlier decision in Kendrick v. State™ to reaffirm
that when a trial court is relying on its discretionary authority under
[ndiana Code section 35-50-1 -2(a), it may impose consecutive sentences
only where it is contemporaneously imposing two or more sentences. 105

The subject of habitual offender enhancements has also received
attention recently. In Stanek v. State, 106 the Indiana Supreme Court held

that adding the habitual offender enhancement to a sentence for the

offense of operating a vehicle after driving privileges are forfeited for

life (Life HTV) under Indiana Code section 9-12-3-2107 was precluded
because the statute under which the defendant was sentenced for a C
felony was itself a habitual offender statute. 108 The court first noted
that Title 9, Art. 12 was titled "Habitual Violators of Traffic Laws"
and that the structure of the statutory scheme allowed for escalation of

punishment with subsequent violations. 109 The statutes first provided for
suspension of the person's driving privileges for up to ten years for

being a Habitual Traffic Violator. 110 The statutes then made it a class
D felony to drive while so suspended, and called for the forfeiture of
driving privileges for life. 111 Finally, it became a class C felony to drive
after being adjudged a Life HTV. 112

The court in Stanek found, therefore, that it was clearly the leg-
islature's intent to make Article 12 113 a habitual offender statute. 114 The
statute provides for increasingly serious penalties for violations of the

HTV laws, ranging from an administrative license suspension to a class
C felony conviction. The court acknowledged that the language of Indiana
Code section 35-50-2-8 allows the State to seek a habitual offender
enhancement for "any felony," but held that a conviction under this

102. Ind. Code § 35-50-l-2(b) (Supp. 1992) (requiring the imposition of consecutive
sentences when the defendant commits a crime while on parole, probation, bond, or while
still serving a term of imprisonment for another crime.)

103. 586 N.E.2d 938 (Ind. Ct. App. 1992).

104. 529 N.E.2d 1311 (Ind. 1988).

105. Baskin, 586 N.E.2d at 939. Recent decisions dealing with the order of imposition

of consecutive sentences in situations where a violation of probation is involved are Menifee

v. State, 601 N.E.2d 359 (Ind. Ct. App. 1992); Menifee v. State, 600 N.E.2d 967 (Ind.

Ct. App. 1992); and Harris v. State, 598 N.E.2d 639 (Ind. Ct. App. 1992).

106. 603 N.E.2d 152 (Ind. 1992).

107. Ind. Code § 9-12-3-2, repealed and replaced by id. § 9-30-10-17 (Supp. 1992).
108. Stanek, 603 N.E.2d at 153-54.

109. Id. at 153.

110. Ind. Code § 9-12-2-1, repealed and replaced by id. § 9-30-10-5 (Supp. 1992).
111. Id. § 9-12-3-l(b), repealed and replaced by id. § 9-30-10-16(b) (Supp. 1992).

112. Id. § 9-12-3-2, repealed and replaced by id. § 9-30-10-17 (Supp. 1992).

113. Now Article 30.
114. Stanek v. State, 603 N.E.2d 152, 153 (Ind. 1992).



1993] CRIMINAL LAW 905

section could not be subject to further enhancement under the habitual

offender statute because it is a discreet, separate, and independent ha-

bitual offender statute. 115 It will be interesting to see if this type of

analysis is applied in the future to cases involving other progressive

punishment statutes.

The problems involved in construing and assessing the validity of

various convictions in the habitual offender context were also dealt with

by the courts. In Johnson v. State," 6 the supreme court held that where

the underlying, enhanced D felony was committed after September 1,
1985, the Savings Clause in the enacting legislation for the D felony
habitual offender statute117 did not apply and defendants could not be

sentenced under the regular habitual offender statute. 118 For the Savings

Clause to allow a defendant with only D felony convictions to be
sentenced under the regular habitual offender enhancement, both the

enhanced felony and the prior felonies must have been committed prior

to September 1, 1985. 119

In Abron v. State™ however, the court of appeals held that a
regular habitual offender enhancement is appropriate if any of the

convictions used, (i.e., prior or present convictions), is greater than a

class D felony. 121 The court rejected the trial court's conclusion that the
statute required at least one of the prior convictions be greater than a

D felony to make the defendant eligible for the regular habitual offender
enhancement. 122

Some of the difficulties arising from sentencing under the habitual
offender statutes were summarized most recently in Broshears v. State ™
where the court found it was error to deny the defendant's request for

a special verdict form in the habitual offender proceedings against him.

The court found that where more than two prior convictions are alleged,

and depending upon which prior convictions are relied on for enhance-

ment, the defendant could be subject to either a regular 124 or D felony125

habitual offender enhancement, a special verdict form must be used if

requested. 126 The court noted that it is permissible for the State to allege

115. Id. at 153-54.

116. 593 N.E.2d 1181 (Ind. 1992), rev'g 585 N.E.2d 1352 (Ind. Ct. App. 1992).

117. Ind. Code § 35-50-2-7.1 (1992).
118. Johnson, 593 N.E.2d at 1182 (referring to Ind. Code § 35-50-2-8 (1976)).
119. Id.

120. 591 N.E.2d 634 (Ind. Ct. App. 1992).

121. Id. at 638-39.

122. Id. at 638-40.

123. 604 N.E.2d 639 (Ind. Ct. App. 1992).

124. Ind. Code § 35-50-2-8, amended by id. § 35-50-2-8 (Supp. 1992).
125. Id. § 35-50-2-7.1, amended by id. § 35-50-2-7.1 (Supp. 1992).
126. Broshears, 604 N.E.2d at 644.



906 INDIANA LAW REVIEW [Vol. 26:891

more than the required two prior convictions, but problems have arisen

where a general verdict form has been used and one of the prior

convictions is later found to have been ineligible to be counted. 127

In Broshears' case, six prior felony convictions were alleged—two
of which were class D felonies. His underlying charge was also a D
felony. One of the prior convictions was inappropriate for consideration,
and it was also possible the jury had relied upon the prior D felony
convictions for enhancement. If the latter had been the case, Broshears

would have been eligible only for a D felony habitual enhancement.
The court found that because of the situation presented, it was error

to deny the defendant's request for a special verdict form. The court

noted that despite their general abolition, special verdict forms are allowed

in comparative fault cases, 128 and held that the same rationale for their

use in comparative fault circumstances should apply to habitual offender

proceedings in the defendant's circumstances. 129 The court then set forth,

verbatim, what it considered a proper verdict form for this kind of

case. 130 Although Broshears involved a situation in which both enhance-

ment under two different habitual offender statutes was possible and

an invalid conviction was involved, the court's analysis might well apply

to any situation where multiple prior convictions are alleged. 131

C. Right to Counsel and Other Assistance

In Scott v. State,™1 the Indiana Supreme Court granted transfer of

a court of appeals memorandum decision for the specific purpose of
outlining the relevant factors trial courts should use in determining

whether indigent defendants are entitled to various kinds of expert

assistance at public expense. After first discussing the long-standing

history of the protection of indigent defendants' rights to counsel and

assistance in Indiana, 133 the court went on to note that appointment of

expert assistance to those defendants is within the trial court's discretion,

127. Id. at 643. Because it is impossible to know whether the proper prior convictions
were used for the enhancement under those circumstances, the enhancements have been

overturned. See, e.g., Nash v. State, 545 N.E.2d 566 (Ind. 1989).

128. Ind. Code § 34-4-33-6, amended by id. § 34-4-33-6 (Supp. 1992).
129. Broshears, 604 N.E.2d at 644.

130. Id. at 645.

131. When a prior conviction is later determined to be ineligible as an enhancer,
a special verdict form is necessary to eliminate questions of whether that conviction was

relied on for the verdict.

132. 593 N.E.2d 198 (Ind. 1992).

133. Id. at 199. See also Bardonner v. State, 587 N.E.2d 1353 (Ind. Ct. App. 1992),

trans, denied, in which the court of appeals said, "[w]e go on record here stating that

criminal defense attorneys and public defenders perform a valuable and highly respected

service to the judicial process." Id. at 1361, n.8.



1993] CRIMINAL LAW 907

and that the defendant bears the burden of demonstrating his or her

need. 134

The appointment of such experts is subject to review for abuse of

discretion, however. 135 While noting the standard for appointment is case

sensitive, the court set out a number of factors for the trial courts to

consider: (1) the presence of a specific showing of how the expert would
benefit the defendant, (2) whether the proposed expert's services would

bear on an issue which is normally considered to be one where expert

testimony would be necessary, (3) the probability that the proposed

expert could demonstrate that which the defendant desires, (4) whether

the expert services would go toward answering a substantial (versus a

merely ancillary) question, (5) how technical the evidence is, (6) how
serious the charge and penalty facing the defendant are, (7) how complex
the case is, (8) the cost of the requested services, (9) the timeliness of

the defendant's request, and (10) the likelihood of the admissibility of

the expert's testimony at trial. 136 In apparent consideration of maintaining

at least some degree of parity between the State and those defendants

without resources to fund their defense, the court also stated:

[i]f the State is relying upon an expert and expending substantial
resources on the case and defendants with monetary resources

probably would choose to hire an expert, the trial court should

strongly consider such an appointment to assist defense counsel

in investigating the same matters, cross-examining the State's

expert, or providing testimony/ 37

The stage for Scott appeared to have been set in some part by the
court's earlier decision in a death penalty case, Castor v. State, 138 in

which the court held it was error to deny the defendant's request for

a psychologist to assist with the penalty phase of his trial. 139 Castor's

pretrial motions for expert assistance stated that defense counsel had

consulted with a psychologist who posited that the defendant might have
been under the influence of "extreme mental or emotional disturbance"

when the alleged acts were committed (one of the statutory factors which
may be used in mitigation of the death penalty). 140 In view of these
circumstances, the supreme court found it was incumbent upon the trial
court to allow Castor the appropriate resources to develop this possible

134. Scott, 593 N.E.2d at 200.

135. Id.

136. Id. at 200-01.

137. Id. at 201.

138. 587 N.E.2d 1281 (Ind. 1992).

139. Id. at 1288.

140. Ind. Code § 35-50-2-9(c)(2), amended by id. § 35-30-2-9(c)(2) (1992).



908 INDIANA LAW REVIEW [Vol. 26:891

mitigation evidence, and its failure to do so was an abuse of discretion. 141

In an earlier decision, however, the court found the failure to grant

a defendant's request for funds for an eyewitness identification expert

^was not prejudicial enough to require reversal of his conviction. Such

a request was denied by the trial court in Hopkins v. State. 142 In Hopkins,
there was some question about the confidence of one of four eyewitnesses
in her identification of the defendant. The defendant requested $260 to
hire an identification expert to cross-examine this witness and testify

regarding identification in general. Although finding insufficient prejudice

in denial of the request to warrant reversal, the court did acknowledge

that the weight of authority favored the admission of expert testimony

under similar circumstances. 143

In another case dealing with eyewitness identification, Clark v. State, 144

the court of appeals held that conducting a hearing on a motion to
suppress the identification, in the absence of defense counsel, was a

denial of the defendant's right to counsel. 145 The court noted this type
of hearing offered an opportunity for an effective defense to be seized,

and was a critical stage of the proceedings where the defendant confronted

both the intricacies of the law and the advocacy of the prosecutor. 146

The defendant's right to counsel was also found to have been denied
in both Boesel v. State, 141 and Can v. State. X4% In Boesel, the defendant's
third appointed counsel moved to withdraw after two months because
Boesel did not keep his appointments. This motion was denied, and

when Boesel failed to appear for trial two weeks later, the court denied
a second motion to withdraw by defense counsel. 149 After completing

jury selection and denying a defense motion for continuance, the trial

court did grant counsel's third motion to withdraw. 150 The trial then
proceeded without the defendant or his counsel present. The court of
appeals found the trial court had abused its discretion in allowing defense

141. Castor, 587 N.E.2d at 1288. However, the court rejected the defendant's

argument, raised for the first time on appeal, that this denial of expert assistance affected

the guilt-innocence phase of the trial as well. Id. The defendant did not claim insanity

at the time of the offense or his incompetence to stand trial. The court found the use

of the expert in this regard was exploratory only, and therefore denial of assistance was

not improper. Id. (relying on Hough v. State, 560 N.E.2d 511, 516 (Ind. 1990)).
142. 582 N.E.2d 345, 352-53 (Ind. 1991).

143. Id. at 353.

144. 577 N.E.2d 620 (Ind. Ct. App. 1991).

145. Id. at 621-22.

146. Id.

147. 596 N.E.2d 261 (Ind. Ct. App. 1992).

148. 591 N.E.2d 640 (Ind. Ct. App. 1992).

149. 596 N.E.2d at 262.

150. Id.



1993] CRIMINAL LAW 909

counsel to withdraw after the jury was impanelled, and that proceeding

to trial in this fashion denied the defendant's right to counsel under

both the United States and Indiana Constitutions. 151 The court noted

the right to counsel extends to indigent defendants and is relinquished

only by a knowing, voluntary, and intelligent waiver, not by merely

failing to appear for trial. 152

In Carr, the court found that the defendant's failure to appear at

trial did not constitute either a waiver of the right to counsel, or a

waiver of his right to a jury trial. 153 Carr originally requested a jury

trial, which was subsequently reset by the trial court on its own motion.
When neither Carr nor defense counsel appeared for the new setting,
the court discharged the jury and held a bench trial after finding that

Carr had voluntarily absented himself. After Carr eventually appeared,

the court advised him of his conviction, appointed counsel, and proceeded

with the habitual offender portion of the proceedings against him. At

that time, Carr was advised that his earlier absence constituted a waiver

of his right to a jury for the earlier trial as well as the habitual offender

proceedings. 154 The court of appeals found that because the record did

not support the trial court's finding that Carr had waived his jury trial

rights, the trial court had erred in holding both proceedings without a

jury. 155 The appellate court also found Carr's absence from trial did

not act as a waiver of his constitutional right to counsel, and that he

had been entitled to both counsel and a jury in all proceedings. 156

An adequate waiver of the jury trial right was found in Goody v.
State,

151 however. In Goody, even though the defendant did not personally

speak, the record reflected his concurrence in the prosecution's waiver

of a jury. 158 Additionally, in Leonard v. State, 159 the Indiana Supreme

Court held that the guidelines set forth in Dowell v. State160 to determine

a knowing, intelligent and voluntary waiver of the right to counsel,

although appropriate and preferable, are not mandatory so long as they

are adequate under controlling precedent. 161

151. id.

152. Id.

153. Carr v. State, 591 N.E.2d 640, 641-42 (Ind. Ct. App. 1992).

154. Id. at 641.

155. Id.

156. Id. at 642.

157. 587 N.E.2d 172, 173 (Ind. Ct. App. 1992)

158. Id. at 172-73.

159. 579 N.E.2d 1294 (Ind. 1991) (on transfer from 573 N.E.2d 463 (Ind. Ct. App.

1991)).

160. 557 N.E.2d 1063 (Ind. Ct. App. 1990).

161. 579 N.E.2d at 1296.



910 INDIANA LAW REVIEW [Vol. 26:891

The related issue of the waiver of a defendant's right to be present
at trial was discussed in several cases in 1992. In Miller v. State, 162 in

contrast to several prior recent decisions, 163 the circumstantial evidence

of the defendant's knowledge of the trial date was found sufficient to

show a knowing and voluntary waiver of his right to be present. 164 It

was also held in Jenkins v. State165 that the defendant, by becoming

intoxicated, effectively waived his right to be present on the second day

of trial. 166

D. Substantive Law

Several decisions dealing with sexually related crimes were issued in

1992. The interplay of the various statutes dealing with prostitution-
related offenses was considered in State v. Hartman™1 in which the
Indiana Supreme Court held that a lone prostitute who directed someone
to his or her place of business could not be convicted for promoting

prostitution under Indiana Code section 35-45-4-4. 168 The court noted
that three statutes, Indiana Code section§ 35-45-4-2, 3, and 4 proscribe
the activities of prostitutes, their patrons, and pimps, respectively. 169

Hartman was charged under the promotion statute because he called a
potential patron and gave him directions to his home, where he allegedly

fondled the patron. While acknowledging that the plain meaning of the

word "direct," as used in the promoting statute, was consistent with
the defendant's action, the court found that interpretation to be incon-

sistent with the legislative intent that Indiana Code section 35-45-4-4 be
applied only to the conduct of a third party in facilitating prostitution. 170

The court also discussed the fact that the legislature did not intend, in

162. 593 N.E.2d 1247 (Ind. Ct. App. 1992).

163. See, e.g., McCaffrey v. State, 577 N.E.2d 617 (Ind. Ct. App. 1991) (finding

that evidence, including defendant's absence at trial despite actual knowledge of the trial

date, was insufficient to constitute a waiver); Reel v. State, 567 N.E.2d 845 (Ind. Ct.

App. 1991); Fennell v. State, 492 N.E.2d 297 (Ind. 1986) (finding evidence insufficient

to constitute a waiver).

164. 593 N.E.2d at 1249-51.

165. 596 N.E.2d 283 (Ind. Ct. App. 1992).

166. Id. at 285.

167. 602 N.E.2d 1011 (Ind. 1992).

168. Id. at 1013-14 (reversing 594 N.E.2d 830 (Ind. Ct. App. 1992), which had

affirmed the defendant's conviction).

169. Id. at 1012-13.

170. Id. at 1013 (relying on comments of the Criminal Law Study Commission,
included in its proposed final draft of the 1976 penal code revision, to ascertain legislative

intent).



1993] CRIMINAL LAW 911

these circumstances, to give prosecutors the discretion to charge one of

several different offenses with different penalties. 171 It will be interesting

to see if the same rationale will be used in ruling on other statutory

schemes which arguably allow for similar discretion.

In a decision dealing with rape, the supreme court, in Jones v.

State™ held that where there was no evidence of the use of force or
threats to encourage intercourse, the evidence was insufficient to support

the conviction for rape. 173 Although the defendant did not have a weapon,

and the alleged victim had refused the defendant's request for sex twice

before finally "just letting him have it," she did not think to hit him

or cry out for help or yell. 174 The court found that although the alleged

victim said she was afraid to yell for help, there was no evidence that

her fear was occasioned by threats or force from the defendant. 175 The

court concluded that although the force necessary to compel intercourse

"by force or imminent threat of force'' does not have to be physical

and may be implied from the circumstances, the evidence in this case
could not adequately lead to an inference of constructive or implied

force. 176

A comparable force was also found missing in Scott-Gordon v.
State.

111 In Scott-Gordon, the supreme court found evidence that the

defendant approached the victim from behind and grabbed his buttocks,

but stepped away after the victim hit him, was insufficient to support

a conviction for sexual battery. 178 Not all touching intended to arouse

or satisfy sexual desires is sexual battery, only such touching that includes

an element of force. While acknowledging that the defendant's touching

may have constituted battery, the court found it did not support a
conviction for sexual battery. 179

The refusal of an instruction on sexual battery as a lesser-included

offense (LIO) of child molesting was found to be error in Pedrick v.

State.™ The charging information did not preclude a battery conviction,

and the court found there was a serious evidentiary dispute as to the

171. Id.

172. 589 N.E.2d 241 (Ind. 1992).

173. Id. at 243.

174. Id.

175. Id.

176. Id. at 242-43. Compare, Hughes v. State, 600 N.E.2d 130, 132 (Ind. Ct. App.

1992) (holding that sexual touching, positioning, or attempting to remove clothing is not

necessary to support a conviction for attempted rape, so long as there is a substantial

step of some type).

177. 579 N.E.2d 602 (Ind. 1991).

178. Id. at 604.

179. Id.

180. 593 N.E.2d 1213, 1217 (Ind. Ct. App. 1992).



912 INDIANA LAW REVIEW [Vol. 26:891

element distinguishing the two offenses. 181 All of the actions alleged

against Pedrick involved touching outside of clothing, and the defendant

denied any intent to arouse or satisfy sexual desires. The court found
that although battery is not an inherently LIO of child molesting, the
information alleging performance or submission to touching or fondling

did contain the elements of battery. 182 Additionally, the court found

there was a serious dispute as to whether there was a sexually motivated

intent—the element distinguishing child molesting from battery—and
therefore held the refusal of the LIO instruction was error. 183

Two other decisions dealing with child molesting offenses also bear
mention. In Barger v. State184 the court held that when it is difficult

to prove whether the victim was eleven or twelve at the time of the

offense, it is sufficient to charge and convict the defendant of the lesser,

class D felony, child molesting, because the victim is clearly under the
age of sixteen. 185

In Acuna v. State, 1 *6 the court held where a single act of intercourse
underlay convictions for both incest and child molesting by intercourse,

double jeopardy concerns prohibit multiple convictions. 187 The Acuna
decision is especially noteworthy because it contains an extensive dis-

cussion of the concept of merger in sex offense cases and reviews prior

case law. Additionally, in a footnote, the court noted that the decision

in Ellis v. State188 appeared to impliedly overrule an earlier decision in

Snider v. State189 that stood for the proposition that one act of intercourse

could support a conviction for both child molesting and incest. 190

The intent issue in murder and attempted murder cases also received

scrutiny recently. In Nunn v. State191 the court held that evidence revealing
that the defendant and victim did not exchange words, that the defendant

struck the victim once in the back of the neck with his hand and then

walked away, and that the victim died from the unusual injury of

severance of her cerebral artery was insufficient to support a conviction

for murder. 192 The court found the crucial question was whether the

181. Id. at 1216-17.

182. Id. at 1217.

183. Id.

184. 587 N.E.2d 1304 (Ind. 1992) (on transfer of decision at 576 N.E.2d 621 (Ind.

Ct. App. 1991), which had reversed the defendant's conviction).

185. Id. at 1307-08.

186. 581 N.E.2d 961 (Ind. Ct. App. 1991).

187. Id. at 965.

188. 528 N.E.2d 60 (Ind. 1988).

189. 412 N.E.2d 230 (Ind. 1980).

190. 581 N.E.2d at 965, n.5.

191. 601 N.E.2d 334 (Ind. 1992).

192. Id. at 339.



1993] CRIMINAL LAW 913

defendant acted with the requisite intent, to knowingly kill another human
being, when he struck the victim. 193 The court answered this question
in the negative by finding the evidence presented was sufficient only to

support a conviction for involuntary manslaughter. 194 The court then

exercised its authority to order modification of the conviction to the

lesser included offense. 195 This decision was based on the insufficiency

of the evidence, but its discussion of the requisite intent for murder

may prompt future litigation based on the type of instruction required
in murder prosecutions. 196

Several recent decisions have ruled on various issues involved in drug

offense prosecutions. It has become clear, for example, that the mere

possession of cocaine, packaged in multiple small bags, will not be

sufficient to sustain a conviction for possession of cocaine with intent

to deliver. In Johnson v. State, 191 evidence that the defendant possessed

1.76 grams of cocaine packaged in small packets was found insufficient

for conviction, because the defendant was known to be a frequent drug
user and there was no other circumstantial evidence to support an

intention to sell the drugs. The court determined that given the defen-

dant's own drug use, the amount of cocaine found supported personal
consumption, rather than intent to sell. 198

A similar result was reached in Isom v. State™9 in which evidence
that the defendant possessed only 0.88 grams of cocaine, even though

packaged in ten separate baggies, was found insufficient to support the

dealing charge. 200 It appears that despite the war on drugs, the courts

will be hesitant to find defendants guilty of the high penalty dealing

193. id.

194. Id. But see Green v. State, 587 N.E.2d 1314 (Ind. 1992) (finding circumstantial

evidence sufficient to support an inference that the defendant have a motive to kill the

victim).

195. Nunn, 601 N.E.2d at 339-40.

196. The issue of instructions on intent in attempted murder prosecutions was also

addressed extensively this year. See, e.g., Brown v. State, 587 N.E.2d 693, 695-96 (Ind.

Ct. App. 1992) (finding the failure to include a requirement for specific intent to kill in

an attempted murder instruction was fundamental error, and applying the requirement

announced in Smith v. State, 459 N.E.2d 355 (Ind. 1984) and Abdul-Wadood v. State,
521 N.E.2d 1299 (Ind. 1988), retroactively). See also Woodcox v. State, 591 N.E.2d 1019,
1022-23 (Ind. 1992). But see Allen v. State, 575 N.E.2d 615, 616-17 (Ind. 1991) (finding

the error in the instruction not to be fundamental).

197. 594 N.E.2d 817 (Ind. Ct. App. 1992).

198. Id. at 817-18 ("The facts . . . reflect that Johnson had 1.76 grams of cocaine

in his possession [and} . . . the cocaine was packaged consistent with '"sale on the street.'"

. . . This inference, however, is diluted, if not destroyed, by the inverse proposition that

the cocaine was packaged consistent with '"having been bought on the street.'").

199. 589 N.E.2d 245 (Ind. Ct. App. 1992).

200. Id. at 247-48.



914 INDIANA LAW REVIEW [Vol. 26:891

charges where the amount of drug possessed is consistent with personal
consumption. 201

Convictions for maintaining and visiting a common nuisance were
also attacked recently. The requirement of "knowledge of selling" under
Indiana Code section 35-48-4- 13(b)(2)202 was strictly enforced in Holmes
v. State.

201 The court held that absent evidence the defendant knew
cocaine was being sold in her house, the presence of a large volume of

drug paraphernalia and guns, the fact Holmes' close relatives sold drugs

from the home, and the fact she was present at the time of the sale,

were all insufficient to support a conviction for maintaining a common
nuisance. 204

Knowledge was also crucial to the decision in Braster v. State, 205 in

which Braster's conviction for visiting a common nuisance was overturned
because the evidence was insufficient to show he knew the residence was
involved in the unlawful use of controlled substances.206 Although drug

paraphernalia was present in the lower level of the home and the
defendant was found in the kitchen on that level, the fact that the

paraphernalia was in plain view of the police officers did not indicate

that it was in plain view of the defendant, and therefore did not show

the requisite knowledge on the defendant's part.207

Two additional decisions that found error in the failure to give
lesser-included offense (LIO) instructions were also significant this year.

Such 'error was found in Aschliman v. State208 in the trial court's refusal

to give an instruction on conversion as a LIO of theft. 209 This decision
appears to hold that where there is evidence to support commission of

a LIO which is inherently included in the greater offense, the State can
never preclude a LIO instruction if it is requested.210 The decision also

201. In contrast, however, decisions uniformly upheld convictions for drug dealing

within 1,000 feet of a school, despite various challenges. See, e.g., Reynolds/Herr v.

State, 582 N.E.2d 833, 838 (Ind. Ct. App. 1991) (upholding the constitutionality of Ind.

Code §§ 35-48-4-1 and 35-48-4-6 in the face of equal protection, vagueness, and over-
breadth challenges). See also Bailey v. State, 603 N.E.2d 1376 (Ind. Ct. App. 1992), and

Steelman v. State, 602 N.E.2d 152 (Ind. Ct. App. 1992) rejecting other attacks on these

statutes and convictions.

202. Ind. Code § 35-48-4-1 3(b)(2) (1977), amended by id. § 35-48-4- 13(b)(2) (1991).
203. 583 N.E.2d 180 (Ind. Ct. App. 1991).

204. Id. at 182-84.

205. 596 N.E.2d 278 (Ind. Ct. App. 1992).

206. Id. at 280.

207. Id. at 279. The court also noted there was no evidence paraphernalia was

found in the kitchen. Id.

208. 589 N.E.2d 1160 (Ind. 1992), rev'g, 578 N.E.2d 759 (Ind. Ct. App. 1991).

209. Id. at 1162.

210. Id.



1993] CRIMINAL LAW 915

appears to impliedly overrule an earlier decision in Compton v. State211

on this issue. 212

In Sandilla v. State,211 the defendants were charged with involuntary

manslaughter by alleging that they killed the victim while attempting to

commit the crime of battery. The trial court refused their tendered in-

struction on battery as a LIO. 214 The court of appeals first found the

wording of the charging information and statute defining the crime rendered

battery an inherently LIO of involuntary manslaughter. 215 It then held
that to justify a LIO instruction on battery in a voluntary manslaughter
case, there must be a serious evidentiary dispute as to either whether the

victim actually died, or whether the battery was the cause of the victim's

death. 216 The court determined in this case that there was such a dispute

as to whether the beating by the defendants actually caused the victim's

death. Therefore, failure to give the LIO on battery was error.217 In so
ruling, the court relied extensively on Aschliman 2™

Other recent decisions dealing with substantive offenses also merit

brief note. In Wagerman v. State 219 the court held that knowledge of
alteration is a necessary element of the crime of possession of a handgun

with an altered serial number under Indiana Code section 35-47-2-1 8. 22°

Although the statute does not contain a specific mens rea element, the
court utilized the presumption favoring the inclusion of an intent element,

due in large part to the seriousness of the sanctions for commission of

the offense. 221 The court also stated in a footnote that the analysis and

holding of this decision would apply equally to other crimes under

Indiana Code section 35-37-2-18. 222

In Alexander v. State 227, firefighters were not excluded from the

statutory224 definition "bodily injury or serious bodily injury to any

211. 465 N.E.2d 711 (Ind. 1984).

212. Although Compton was not mentioned by the court, its holding that the
defendant could not have been entitled to, inter alia, an instruction on criminal conversion

as a LIO of theft because the State had drafted its information to preclude such instruction,
seems to be in direct conflict with the holding in Aschliman.

213. 603 N.E.2d 1384 (Ind. Ct. App. 1992).

214. Id. at 1386.

215. Id. Furthermore, the court of appeals noted that Ind. Code § 35-42-1-4(3)
defines involuntary manslaughter as killing another human being while committing or
attempting to commit battery.

216. 603 N.E.2d at 1387.

217. Id. at 1388.

218. Id. at 1386-88.

219. 597 N.E.2d 13 (Ind. Ct. App. 1992).

220. Id. at 16.

221. Id.

222. Id. at 16 n.3.

223. 600 N.E.2d 549 (Ind. Ct. App. 1992).

224. Ind. Code § 35-43-l-l(a) (1977).



916 INDIANA LAW REVIEW [Vol. 26:891

person other than the defendant" that elevates arson to a class A felony.225
The court rejected the defendant's argument that because firefighters

respond to nearly every fire and endanger their lives in every arson,

including them within the definition of "any person" would render other

sections of the statute meaningless. The court looked to the plain and

ordinary meaning of the words, and found that the defendant's inter-

pretation would require finding firefighters do not fall in the common
definition of "persons" or "humans."226

In another arson case, Williams v. State, 221 it was held that smoke

and soot damage to the wall of the basement of a house was sufficient

to constitute "damages" under the same statute,228 and therefore the

defendant was properly convicted of arson.229 Again, the court relied in

part on the plain and ordinary meaning of the statutory language to

reach its definition of "damages." 230

E. Procedural and Trial Issues

A number of decisions were rendered in 1992 which dealt with
various procedural or trial-related issues. In Sewell v. State,231 the court

considered the implications of Brady v. Maryland232 regarding exculpatory

evidence, and held that due process concerns entitled a defendant pursuing

postconviction relief to obtain the State's rape kit for laboratory testing

and possible DNA analysis. 233 Sewell was convicted of rape in 1981,
when DNA comparisons were unavailable. In 1990 he filed discovery
motions seeking the previously prepared rape kit and laboratory records

to subject them to further analysis.

Although noting that defendants may waive pretrial discovery rights
by not exercising them and ordinarily a second opportunity to discover

the same evidence would be precluded, the court found that because

DNA comparisons were unavailable at the time of the original trial,
finding a waiver on the part of the defendant would be equivalent to

requiring him to anticipate forensic scientific advances. 234 After reviewing

225. 600 N.E.2d at 553.

226. Id.

227. 600 N.E.2d 962 (Ind. Ct. App. 1992).

228. Ind. Code § 35-43-l-l(a) (1976) applies to a "person who, by means of fire
or explosive, knowingly or intentionally damages: (1) a dwelling of another," but the

statute does not define the term "damages."

229. 600 N.E.2d at 964-65.

Ct. App. 1992), trans, denied.

230. Id.

231. 592 N.E.2d 705 (Ind.

232. 373 U.S. 83 (1963).

233. 592 N.E.2d at 707-08

234. Id. at 707.



1993] CRIMINAL LAW 917

the applicability of Brady to posttrial proceedings during which excul-

patory evidence is first discovered, the court stated,

[a]dvances in technology may yield potential for exculpation
where none previously existed. The primary goals of the court

when confronted with a request for the use of a particular

discovery device are the facilitation of the administration of

justice and the promotion of the orderly ascertainment of the

truth. 235

The court then found under the circumstances presented, permitting

Sewell's requested discovery would meet those ends.236 No other cases
dealing with this type of issue were forthcoming in 1992, but it would

appear that the decision may spawn related creative arguments in the
future.

Although a number of decisions were issued in the area of the right

to a speedy trial and commitment, three are of particular note. In In

re Woods v. State™ the Indiana Supreme Court held that a trial court
loses jurisdiction over the defendant for purposes of committing him to

prison, if it does not act within a reasonable time after the defendant's

conviction is affirmed on appeal. 238 In this case, the defendant appealed

his conviction, but it was upheld, and nothing was done to initiate his

commitment until five and one-half years after the appellate decision

was certified. The court applied the principle it had earlier stated in

Taylor v. State,219 that '"[a]n American citizen is entitled to live without

a Damocles sword hanging over his head, ,,,24° and found the trial court

had waited too long to execute the defendant's sentence.241

In Crosby v. State, 2*2 the court recognized that the State's failure

to provide timely discovery responses and its extremely late amendment

of the charges, could place a defendant in the untenable position of

either waiving his right to a speedy trial or proceeding to trial without

adequate preparation.243 Crosby had filed a speedy trial request pursuant

to Criminal Rule 4(B). Just before trial, the State amended the infor-

mation to add several additional counts and belatedly furnished Crosby

with voluminous discovery. Although the trial court granted the defen-

235. Id. at 708.

236. Id.

237. 583 N.E.2d 1211 (Ind. 1992).

238. Id. at 1212-13.

239. 120 N.E.2d 165 (Ind. 1954).

240. Woods 583 N.E.2d at 1212 (citing Taylor, 120 N.E.2d at 167).
241. Id. at 1212-13.

242. 597 N.E.2d 984 (Ind. Ct. App. 1992).

243. Id. at 988-89.



918 INDIANA LAW REVIEW [Vol. 26:891

dant's request to have his necessary continuance charged to the State,

when the new trial date arrived, the trial was postponed to a date outside
of the seventy day limit due to a congested court calendar. 244 The court

>f appeals held that the trial court's denial of Crosby's subsequent

motion for discharge was erroneous because at the time of the continuance

necessitated by the State's actions, the calendar was not crowded.245 This

decision contains an extensive analysis of speedy trial issues and the

problems occurring when discovery deadlines are not followed and late
amendments to charges are allowed. It is one of the few recent decisions
which recognizes that these actions may place defendants in very difficult
positions, and is likely to be cited often by defense counsel.

One other decision of brief note was rendered in State v. Roth246

in which the court held that when a defendant requests a speedy trial
under Crim. R. 4(B) following a mistrial or reversal on appeal, he is

entitled to discharge if not brought to trial within seventy days. 247 The

court interpreted Young v. State248 to mandate that where a specific
request is made under Crim. R. 4(B) upon retrial, the time limits of
the rule apply—even though the other provisions of Crim. R. 4 require
only that the defendant be retried within a reasonable time in this

context.249

F. Search and Seizure
*

Although no search and seizure cases in 1992 established new law,
several decisions indicated that the Indiana appellate courts may be
maintaining a more protective view of Fourth Amendment rights than
the one currently held by the United States Supreme Court. In both

Everroad v. State250 and Dolliver v. State251 the Indiana Supreme Court

found the affidavits used to obtain search warrants were inadequate and

based on insufficiently corroborated hearsay, and refused to apply the

"good faith" exception to preserve the validity of the searches. 252 In

244. Id. at 986.

245. Id. at 988.

246. 585 N.E.2d 717 (Ind. Ct. App. 1992).

247. Id. at 718-19.

248. 482 N.E.2d 246 (Ind. 1985). This decision held that after a mistrial, the defendant

must make a renewed request for speedy trial under C.R. 4(B). Id. at 249.

249. 585 N.E.2d at 718-19.

250. 590 N.E.2d 567 (Ind. 1992) (on transfer from 570 N.E.2d 38 (Ind. Ct. App.

1991)).

251. 598 N.E.2d 525 (Ind. 1992).

252. Everroad, 590 N.E.2d at 570-71, and Dolliver, 598 N.E.2d at 528-29. But see

Wood v. State, 592 N.E.2d 740, 743-45 (Ind. Ct. App. 1992) (holding that a search
warrant was not defective, despite an allegedly defective affidavit).



1993] CRIMINAL LAW 919

Terry v. State, 253 the court held that the trial court erred in failing to

suppress evidence found in an alleged "inventory' ' search, because this

second inventory search by Indiana officials occurred after such a search

had already been conducted by officials in the state discovering the

defendant's car. 254 The court found the later search was really an in-

vestigatory search, not a routine inventory search.255 The trial court had

ruled that a search warrant obtained was invalid, 256 and the State did

not assert the "good faith" exception to an invalid warrant. Therefore

the court of appeals ruled that the failure to suppress the evidence

obtained was error, because there was no valid inventory search. 257

The courts also ruled in the defendants' favor in two other cases.

In Sanders v. State, 258 the court found a confidential informant's tip

was insufficient to establish probable cause to search the defendant's

car when stopping him for a traffic infraction.259 Subsequently, in Cash

v. State,
260

it was determined that the defendant's actions were insufficient

to establish reasonable suspicion he had violated the law, and therefore

the officer did not have cause to make an investigatory stop.261

In contrast, however, reasonable suspicion for an investigatory stop

was found in Piatt v. State, 262 English v. State, 263 and Thurman v.

State.
264, Additionally, in State v. Nixon, 165 evidence obtained from a

warrantless search of the defendant's purse, discovered in a warrantless

search of the car in which she was riding, was found admissible because

the warrantless search of the car was supported by probable cause. 266

Furthermore, in Andrews v. State 261 the court found that probable cause
to believe the defendant committed a crime approximately three months

earlier was sufficient to justify a' warrantless arrest. 268 The court ac-
knowledged, however, that obtaining an arrest warrant would have been

the better practice. 269

253. 602 N.E.2d 535 (Ind. Ct. App. 1992).

254. Id. at 546.

255. Id.

256. Id. at 545.

257. Id. at 546.

258. 576 N.E.2d 1328 (Ind. Ct. App. 1991).

259. Id. at 1329.

260. 593 N.E.2d 1267 (Ind. Ct. App. 1992).

261. Id. at 1269-70.

262. 589 N.E.2d 222, 226 (Ind. 1992).

263. 603 N.E.2d 161, 162-63 (Ind. Ct. App. 1992).

264. 602 N.E.2d 548, 551 (Ind. Ct. App. 1992).

265. 593 N.E.2d 1210 (Ind. Ct. App. 1992).

266. 593 N.E.2d at 1212-13 (relying primarily on California v. Acevedo, 111 S. Ct.

1982 (1991)).

267. 588 N.E.2d 1298 (Ind. Ct. App. 1992).

268. Id. at 1303.

269. Id.



920 INDIANA LAW REVIEW [Vol. 26:891

III. Conclusion

It would seem that the amendment of Indiana Rule of Appellate
'rocedure 4 in 1990, which relieved the Indiana Supreme Court of the

mandatory review of criminal cases with sentences of fifty years or less,

has given that court the flexibility and time to consider significant criminal

law issues brought before it on Petitions to Transfer. There were a large

number of such decisions rendered in 1992, and the Indiana Supreme

Court seemed more willing to consider significant alterations in criminal

procedure and substantive law than it had in the past.

This willingness to more closely scrutinize trial court actions and

reconsider relatively long-term principles seems especially apparent in the

areas of evidence, sentencing, and general procedural aspects of criminal

law. The ability of the court to devote significant analysis to complex

criminal law issues, rather than routinely rely on established, but possibly

flawed, legal principles is to be applauded. It is incumbent upon those

dealing with appeals, however, to make the effort to bring such issues
before the court through Petitions to Transfer in appropriate cases. It

is interesting indeed, to deal with an area of law where so much is in
flux, and practitioners will need to work diligently to stay informed.