Indiana Law Review Recent Developments in Indiana Criminal Law and Procedure Joel M. Schumm* The legislature and Indiana's appellate courts confronted a variety of significant issues during the survey period from October 1 , 2009, to September 30, 2010. The Indiana General Assembly ("General Assembly") created a new procedure to address the removal of defendants from the sex offender registry but was fairly restrained in creating new crimes and altering penalties for existing crimes. The Indiana Supreme Court and Indiana Court of Appeals addressed issues ranging from the traditional fare of sentencing, sufficiency ofthe evidence, and probation to a variety of more novel issues, including enhancements of school-zone drug convictions, inconsistent jury verdicts, reversal of convictions forjudicial misconduct and overreaching, and sorting through the aftermath ofthe landmark Wallace opinion' limiting sex offender registration. I. Legislative Developments The General Assembly's 20 1 short session created new crimes and enhanced penalties for existing crimes. Although it was previously a Class C felony to traffic in a cellular phone with an inmate,^ a new statute now also criminalizes the possession of a cellular phone by a person incarcerated in a county jail as a Class A misdemeanor.^ The involuntary manslaughter statute was expanded to include defendants who cause the death ofa fetus while operating while intoxicated.'^ The operating while intoxicated statute was amended to create a D felony offense if the conduct results in the death of a law enforcement animal.^ A person who resists law enforcement while operating a motor vehicle in a manner that causes the death of a law enforcement officer commits a Class A felony.^ Considerable media attention, though, was generated by one of the least severe offenses: the Class B misdemeanor offense of failing to require proof of age before selling alcohol for carry-out.^ Checking identification has long been routine for those who appear to be near the required minimum age oftwenty-one, * Clinical Professor ofLaw, Indiana University School ofLaw—Indianapolis. B.A., 1992, Ohio Wesleyan University; M.A., 1994, University of Cincinnati; J.D., 1998, Indiana University School of Law—Indianapolis. 1. Wallace v. State, 905 N.E.2d 371 (Ind. 2009). 2. iND. Code § 35-44-3-9(d) (201 1). 3. Id. § 35-44-3-9.6. 4. Id. § 35-42-l-4(d). 5. M § 9-30-5-5. The legislation was proposed by representatives from St. Joseph County in response to the killing ofMishawaka police officer James Szuba and K9 "Ricky" on January 9, 2010. A YouTube video offers a tribute to both. Time Capsule DVP, Mishawaka Police Cpl. James Szuba and K9 Ricky Funeral, YouTUBE (Jan. 21, 2010), http://www.youtube.com/ watch?v=TTN15VsVFXo. 6. Ind. Code § 35-44-3-3 (Version b). 7. Id. § 7. 1-5-10-23; 5ee, e.g., Richard Gootee, MyID... Really?, INDIANAPOLIS STAR, July 2, 2010, at Al. 1136 INDIANA LAW REVIEW [Vol. 44: 1 1 35 but the new statute requires that employees check identification of all who seek to purchase alcohol, even those decades past the legal drinking age.^ The statute includes a defense for those selling to someone who "was or reasonably appeared to be more than fifty (50) years of age. "^ Most new misdemeanor offenses, though, generated little media attention and likely remain a mystery to the vast majority ofcitizens. For example, commercial vehicle operators who provide for intrastate transport of metal coils now commit an A misdemeanor conviction ifthe operator has not been certified in proper load securement.^^ Finally, the General Assembly created a fourteen-member criminal law and sentencing policy study committee to evaluate criminal and sentencing laws and make recommendations to the General Assembly for changes that relate to the purpose ofthe criminal justice system, the availability of sentencing options, and the inmate population at the department of correction. '* If the committee is able to make recommendations that muster legislative support, next year's survey may include more sweeping revisions to the criminal code. II. Significant Cases The Indiana Supreme Court and Indiana Court of Appeals addressed a wide range ofissues that impact criminal cases from their inception to their conclusion. A. Excessive Bail Reduced Two years ago, this survey discussed a rare (and successful) challenge to pretrial bail.^^ In Samm v. State,^^ the court of appeals held that the trial court abused its discretion by "failing to acknowledge uncontroverted evidence on several" statutory bail factors. ^"^ The case was unusual in part because bail challenges seldom make it to the appellate courts; the appellate process generally takes several months, often rendering such challenges moot.'^ During this survey period, a defendant charged with ten counts of securities fraud challenged his $ 1 .5 million bail as excessive in Reeves v. State}^ The court of appeals denied his motion for expedited preparation of the record and expedited the briefing schedule only by prohibiting extensions beyond the normal deadlines.'^ Briefing was completed in about three months, and the opinion was 8. IND. Code §7.1-5-10-23. 9. Id. 10. iND. Code §9-21-8-58. 11. Id. §2-5.5-5-2,-13. 12. See Joel M. Schumm, Recent Developments in Indiana CriminalLaw andProcedure, 42 iND. L. Rev. 937, 953-55 (2009). 13. 893 N.E.2d 761 (Ind. Ct. App. 2008). 14. Mat 768. 15. Schumm, supra note 12, at 954. 16. 923 N.E.2d 418, 420 (Ind. Ct. App. 2010), trans denied, 928 N.E.2d 10 (Ind. 201 1). 17. The clerk's online docket may be accessed at hats.courts.state.in.us/ISC3RUS/ISC2menu. 2011] CRIMINAL LAW 1137 issued about six weeks later. '^ Reiterating that the fundamental purpose of bail is to ensure a defendant's presence in court, the court ofappeals reversed, faulting the trial court for making no attempt to apply the statutory factors when determining the bail amount.'^ Rather than reducing the bail, the court remanded for the trial court to set bail "in an amount that takes into account the statutory factors" and "explain its rationale for the bail imposed in relation to those standards."^^ Although the exorbitant $1 .5 million bail in Reeves seems especially easy to challenge on appeal, bail of much smaller amounts may have the same effect of keeping a defendant in jail—often for several months or longer while awaiting trial. Whether defense counsel will exercise the right to appeal bail more frequently may depend at least in part on whether the court of appeals will allow for more meaningful (expedited) review of those decisions. B. Reversalsfor Judicial Misconduct The Indiana Supreme Court ordered new trials in two cases—an A felony child molesting case and a misdemeanor driving while suspended case—^based on misconduct by the trial judge. The court applied somewhat different standards, which could lead to confusion in the future. In Everling v. State,^^ the supreme court reversed several convictions for child molesting and sexual misconduct with a minor because the cumulative result of the trial court's "comments, exclusions [of evidence], and general demeanor toward the defense was a trial below the standard towards which Indiana strives. "^^ The court reiterated that judges are presumed "unbiased and unprejudiced" and that appellate courts generally require defendants to "establish from the judge's conduct actual bias or prejudice that places the defendant in jeopardy"^^—a standard not applied in the misdemeanor driving case. The reach ofEverling is likely limited, though, because it is grounded in the cumulative effect of the rulings and comments.^"^ Nevertheless, the individual components warrant consideration because they could resurface in future cases. The supreme court categorized the trial court's assessment of partiality as "comments to counsel, comments in front of the jury, uneven tolerance of late jsp (search for case no. 77A01-0909-CR-00446). 18. Id 19. i?eeve5, 923N.E.2dat422. 20. Id. This approach differs from appellate sentence review, for example, where the appellate courts routinely lower sentences to a specific term rather than giving the trial court a do- over, which could presumably lead to another appeal if not done correctly. See, e.g., Schumm, supra note 12, at 948-51. 21. 929 N.E.2d 1281 (Ind. 2010). 22. Mat 1291. 23. 7J. at 1287. 24. See, e.g., id. at 1290 (remarking that the cumulative effect could not be ignored "simply because each of them would otherwise not suffice to reverse"). 1138 INDIANA LAW REVIEW [Vol. 44: 1 1 35 filings, and erroneous rulings."^^ Although appellate scrutiny generally focuses on comments that could influence a jury,^^ the supreme court gave weight to the trial court's comments outside the presence ofthe jury, including a comment that defense counsel had done "unethical things" in court.^^ In remarking on the comments in front of the jury, the court focused not on legal questions, "but the general demeanor taken with defense counsel. These comments were adversarial if not condescending, and they certainly communicated to the jury that . . . [counsel] was a less than competent attomey."^^ The court also found improper the trial court's assisting of the prosecution "in making and responding to objections" based on "context and one-sidedness."^^ Although addressed as part of the broad claim of partiality,^^ the exclusion of a late-disclosed expert witness may present an independent basis for reversal when the testimony was critical to the defense, the late disclosure was explained by defense counsel's illness, and a continuance could easily have been granted.^' In a misdemeanor case decided just weeks before Everling, the court focused largely on violations of ethical rules. In Hollinsworth v. State,^^ a young woman charged with driving with a suspended license informed the trial court that she would like to accept the State's plea agreement early in her trial.^^ The trial court "exhibited impatience and stated that if . . . [she] were found guilty, 'she's going to jail for a year.'"^"^ The court continued, "I don't know if I want to take your plea. I'd rather just go to trial, I think. I don't like being jerked around at all, all right?"^^ A trial ensued, and the trial court imposed a one-year jail sentence, which was later reduced. ^^ During sentencing, the court noted that Hollinsworth had been charged with theft and battery and responded, "Sure they are," when defense counsel stated, "Those are only alleged charges. "^^ The Indiana Supreme Court reversed the conviction and ordered a new trial.^^ The short per curiam opinion relied heavily on Judicial Conduct Canon 2, which requires judges to "perform the duties ofjudicial office impartially, competently. 25. Id at 1289. 26. Id at 1288 (quoting Kennedy v. State, 280 N.E.2d 611, 620-21 (Ind. 1972) (noting that jurors' respect for trial courts "can lead them to accord great and perhaps decisive significance to the judge's every word and intimation")). 27. Mat 1290. 28. Id 29. Id 30. Mat 1291. 3 1 . See generally Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 41 iND. L. REV. 955, 984-86 (2008). 32. 928 N.E.2d 201 (Ind. 2010). 33. Mat 201. 34. Id. (citation omitted). 35. Id. (citation omitted). 36. Id 37. Id. at 202 (citation omitted). 38. Id 2011] CRIMINAL LAW 1139 and diligently, "^^ Judges must (1) be "objective and open-minded" under Rule 2.2, comment 1; (2) perform duties "without bias or prejudice" under Rule 2.3(A); (3) be "patient, dignified, and courteous to litigants" under Rule 2.8(B); and (4) disqualify themselves in any proceeding where their impartiality "might reasonably be questioned" under Rule 2.1 l(A).'^^ The supreme court concluded that Marion County Superior Court Judge William Young's "behavior in this cases did not meet these standards.""^^ The court did not engage in harmless error analysis or suggest that numerous or particularly egregious violations must occur to warrant a new trial;^^ therefore, this case will likely be cited in the future by both criminal and civil litigants who seek a new trial based on judicial misconduct. Read with Everling, though, reversal may not be required unless there are numerous or particularly egregious violations of the canons. Beyond the possible reversal of a case, judges who engage in misconduct may also face disciplinary sanctions. A few weeks after the Hollinsworth opinion was issued, the Indiana Commission on Judicial Qualifications filed four counts of misconduct against Judge Young, focusing on his actions in that case and the general practice of "imposing substantially higher penalties against traffic court litigants who chose to have trials and losf and "routinely ma[king] statements implying that litigants should not demand trials and would be penalized for doing soiftheylost."^^ Finally, if a judge manages to upset a wide swath of the public, the General Assembly may get involved. In response to Judge Young's traffic court antics,"^ the General Assembly significantly amended the penalties for infractions. Instead ofthe longstanding maximum $500 fine for any Class C infraction, a person who admits a violation before court or admits the violation on the day of court cannot be fined more than $35.50."^^ A person who contests the violation cannot be fined more than $35.50 either, if facing his or her first moving violation in the county within five years."^^ Maximum fines increase to $250 or $500, however, if a person has one or two prior violations in that same county."^^ 39. Id. 40. Id. (internal citations omitted). 41. Id 42. See id. 43. Notice of the Institution of Formal Proceedings and Statement of Charges at 3-4, In re Hon. William E. Young, No. 49500- 1007-JD-374 (Ind. July 16, 2010); see also Press Release, Indiana Courts, Judicial Qualifications Commission Files Misconduct Charges Against Marion Superior Court Judge (July 16, 2010), available at http://www.in.gov/judiciary/press/2010/ 0716.html. 44. See Jon Murray, Law Caps Finesfor Traffic Court, INDIANAPOLIS STAR, Mar. 25, 2010, atA21. 45. iND. Code §34-28-5-4 (2011). 46. Id 47. Id 1 140 INDIANA LAW REVIEW [Vol. 44: 1 135 C. Prosecutors Pushing the Envelope Trial courts have considerable discretion to regulate what lawyers argue throughout a case—from voir dire to closing arguments. Two cases from the survey period demonstrate that this discretion is wide but not without limit. Prosecutors are free to ask questions during voir dire "designed to disclose the jurors' attitudes towards the offense charged and to uncover preconceived ideas about defenses the defendant intends to use.'"^^ Although defendants should request an admonishment or move for a mistrial ifthe prosecutor crosses the line, the court of appeals may nevertheless consider the issue as fiindamental error in the absence of such a request."^^ In Adcock v. State, the court of appeals considered the prosecutor's analogy of "'reasonable doubt being like a jigsaw puzzle with pieces missing' during voir dire."^^ Although otherjurisdictions have sometimes found similar references improper,^' courts have generally affirmed convictions if the jury was instructed about the proper definition of reasonable doubt.^^ In Adcock, the court of appeals relied on the jury instructions, the prosecutor's statements and questions "as a whole," and the defendant's opportunity to rebut the prosecutor's comments in finding no fundamental error.^^ In Miller v. State,^^ a divided panel reversed a conviction for armed robbery based on the prosecutor's showing of a YouTube video during closing argument. ^^ The video, which was created in a completely unrelated context for school administrators, showed a person who was able to conceal several guns under his clothing.^^ The defense at trial was mistaken identity and that the robber had used a shotgun. The prosecutor acknowledged when showing the video that it "has nothing to do with the case" and that "[i]n no way, shape, or form, are we saying that Terrence Miller had a pistol."^^ Nevertheless, the court of appeals reversed.^^ In the lead opinion for the court. Judge May agreed with the defendant that the video "had the effect of bringing alive the passions of the jury . . . and suggested Miller was not only the robber but that he also had multiple firearms on his person and intended to use them to cause injury or death."^^ Judge Barnes wrote a separate concurring opinion, finding the video was "the proverbial evidentiary harpoon that skewed the ability of the jury to 48. Adcock V. State, 933 N.E.2d 21, 26 (Ind. Ct. App.), trans, denied, 940 N.E.2d 827 (Ind. 2010). 49. Id 50. Id. (citation omitted). 51. Id. at 27 (citing People v. Katzenberger, 101 Cal. Rptr. 3d 122, 125 (Ct. App. 2009)). 52. Id at 27-28. 53. Id. at 28. 54. 916 N.E.2d 193 (Ind. Ct. App. 2009), trans, denied, 929 N.E.2d 782 (Ind. 2010). 55. Id at 199. 56. Id at 195. 57. Id. at 196 (citation omitted). 58. Id at 199. 59. Id. at 197 (quoting the appellant's reply brief). 2011] CRIMINAL LAW 1141 fairly and impartially decide the case."^^ Finally, Chief Judge Baker dissented, concluding that showing the video was error but not reversible because the video was irrelevant to Miller's mistaken identity defense.^^ D. "Operating" Vehicles While Intoxicated—and the Newfound Importance of "Endangerment " Although sufficiency of the evidence claims are often viewed as a hopeless cause, defendants convicted of operating a vehicle while intoxicated have prevailed in several cases over the years.^^ This survey period added a few more. 1. Endangerment.—In Outlaw v. State,^^ the Indiana Supreme Court adopted the appellate court's opinion in concluding that operating a vehicle while intoxicated "in a manner that endangers a person," a Class A misdemeanor under Indiana Code section 9-30-5-2(b), requires proof beyond mere evidence of intoxication.^"* The State conceded that Outlaw had not operated his vehicle in an unsafe manner; therefore, only the C misdemeanor offense of operating a vehicle was intoxicated was proven.^^ Applying Outlaw, the court of appeals also found insufficient evidence of endangerment in Temperly v. State,^^ a case where the defendant was involved in an accident after another driver drove his vehicle into the defendant's path.^^ No evidence other than the defendant's intoxication was offered to support endangerment ofthe defendant or any other person. ^^ Similarly, Dorsett v. State^^ failed for sufficient evidence of endangerment when the defendant was found intoxicated in his parked vehicle. ^^ However, in Vanderlinden v. State,^^ decided the same day as Outlaw, the court of appeals concluded that excessive speed (fifty-one in a thirty-five mile per hour zone) was sufficient to prove 60. Id. at 199 (Barnes, J., concurring). 61. Id. (Baker, C.J., dissenting). Transfer was denied in Miller by a 3-2 vote with Chief Justice Shepard and Justice Dickson voting to grant transfer. Miller v. State, No. 09A02-08 12-CR- l 133, 2010 Ind. LEXIS 46 (Ind. Jan. 10, 2010). Regardless of agreement with the outcome of a court ofappeals case, the supreme court frequently grants transfer when the court ofappeals issues a published decision that includes separate opinions from all threejudges. See, e.g., Lewis v. State, 931 N.E.2d 875 (Ind. Ct. App. 2010), vacated on transfer, 949 N.E.2d 1243 (Ind. 201 1). 62. See, e.g., Flanagan v. State, 832 N.E.2d 1139 (Ind. Ct. App. 2005); Nichols v. State, 783 N.E.2d 1210 (Ind. Ct. App. 2003); Clark v. State, 61 1 N.E.2d 181 (Ind. Ct. App. 1993); Hiegel v. State, 538 N.E.2d 265 (Ind. Ct. App. 1989). 63. 929 N.E.2d 196 (Ind. 2010). 64. Id at 196. 65. Id 66. 933 N.E.2d 558 (Ind. Ct. App. 2010), trans, denied. 67. Mat 568. 68. Id 69. 921 N.E.2d 529 (Ind. Ct. App. 2010). 70. Id at 533. 71. 918 N.E.2d 642 (Ind. Ct. App. 2009), trans, denied, 929 N.E.2d 787 (Ind. 2010). 1 142 INDIANA LAW REVIEW [Vol. 44: 1 135 endangerment.^^ Beyond those facts, however, the court expressly "decline[d] to determine the precise extent of speeding, in the absence of other factors, necessary to show endangerment."^^ 2. "Operating. "—In Gatewood v. State^^ a man on a moped stumbled into the emergency room of a hospital at 8:00 p.m. He was found an hour later asleep by his moped with a blood-alcohol content of 0.286.^^ The defendant testified that he drank a pint of vodka after arriving at the hospital, but no vodka bottle was found. The court rejected the State's argument that the defendant's intoxication at 9:00 p.m. allowed the jury to reasonably infer he was intoxicated when he drove his moped at an hour earlier, stating, "Even if we assume that Gatewood drank some alcohol before arriving at the hospital, the State simply presented no evidence that when Gatewood operated his moped around 8:00 p.m., he had an impaired condition ofthought and action and the loss ofnormal control of a person's faculties. "^^ Other defendants challenging their "operation" of a vehicle were not successful. In Dorsett v. State,^^ the Indiana Court of Appeals found sufficient circumstantial evidence that the defendant had driven his vehicle found in a parking lot.^^ The defendant told police that he drove to a McDonald's after becoming intoxicated at a friend's party. ^^ Based on the time-stamp on a receipt, the court found it reasonable to infer that he had purchased food in the drive- through before parking in the lot where he was found slumped over in his vehicle, which was running.^^ Moreover, in Crawley v. State,^^ a defendant challenged her conviction for operating a vehicle while her license was forfeited for life on the basis that no one observed her operating a vehicle, which was found backed into a swimming pool.^^ Applying the same factors used in operating while intoxicated cases, the court of appeals found sufficient evidence of operating when the defendant "possessed the car, was present at the scene, was highly impaired, made statements to . . . [the pool owner] that no one was with her, and made efforts to avoid the police being summoned . . . ."^^ Judge Riley dissented, concluding that the evidence created "a probability" of operating but not proof beyond a reasonable doubt and that the evidence presented was similar to other cases the court had reversed for insufficient evidence. ^"^ 72. Id at 646. 73. Mat646n.l. 74. 921 N.E.2d 45 (Ind. Ct. App.), trans, denied, 929 N.E.2d 792 (Ind. 2010). 75. Mat 47. 76. Id. at 50. 77. 921 N.E.2d 529 (Ind. Ct. App. 2010). 78. Id at 532. 79. Mat 531. 80. Mat 53 1-32. 81. 920 N.E.2d 808 (Ind. Ct. App. 2010). 82. Id at 809. 83. Mat 813. 84. Id. at 814 (Riley, J., dissenting). 2011] CRIMINAL LAW 1143 E. Strict Construction ofStatutes and Drug Offenses in Particular A number of cases highlighted the strict construction of penal statutes in a manner that allows some defendants to escape criminal liability.^^ In State v. Prater,^^ the court of appeals considered the scope of the intent requirement for manufacturing methamphetamine under Indiana Code section 35-48-4-14.5.^^ Subsection (c) of that statute criminalizes as a D felony the possession of "anhydrous ammonia with intent to manufacture methamphetamine."^^ The majority in Prater held that the statute does not criminalize the mere possession ofanhydrous ammonia; rather, the person in possession must also personally have the intent to use the ammonia to manufacture methamphetamine.^^ "Otherwise, countless individuals who possess or sell anhydrous ammonia for lawful purposes could be charged with illegal possession, which would yield an absurd result. "^° Judge Bradford dissented, noting that manufacturing meth "is a multi-step, multi- ingredient process, often involving multiple parties."^' He wrote that the person who secures the ammonia should not be immunized from criminal liability simply by not involving himself personally in the manufacturing process. ^^ In Lovitt V. State,^^ the court of appeals shut down the State's attempt to broaden the maintaining a common nuisance statute to include mere drug possession in a vehicle.^"^ A person maintains a common nuisance by unlawfully "keeping" a controlled substance; the offense is a class D felony.^^ Although the defendant had marijuana in his pocket while operating a vehicle, the term "keeping" in the statutory context applies only when the substance is "contained within the vehicle itself or that the vehicle is used to store the controlled substance for further manufacturing, sale, delivery or financing the delivery of that or another controlled substance."^^ The court concluded that the General Assembly would not have intended the broad interpretation, which would "make every drug arrest after a traffic stop subject to an additional charge ofmaintaining a common nuisance."^^ In another case focused on the "maintaining" language of the common nuisance statute, the court of appeals found insufficient evidence 85 . See generally Schumm, supra note 3 1 , at 98 1 -83 (summarizing developments under the heading "Creepy Not Criminal: The Primacy ofLanguage in Criminal Statutes") (internal citation omitted). 86. 922 N.E.2d 746 (Ind. Ct. App.), trans, denied, 929 N.E.2d 797 (Ind. 2010). 87. Id at 747. 88. Id at 749 (quoting Ind. Code § 35-48-4-14.5(c) (2010)). 89. Id at 749-50. 90. Id at 750. 91. /J. (Bradford, J., dissenting). 92. Id 93. 915 N.E.2d 1040 (Ind. Ct. App. 2009). 94. Id at 1045. 95. Id at 1044 (citing iND. CODE § 35-48-4-13(b) (2010)). 96. Mat 1045. 97. Id 1 144 INDIANA LAW REVIEW [Vol. 44: 1 135 when a defendant was part of methamphetamine manufacturing operating in the yard of another person's residence because there was no evidence the defendant "had any control over the premises."^^ Hyche v. State^^ is another drug possession case aggressively charged into something more severe. There, the court of appeals vacated convictions for felony murder and dealing a controlled substance. '^^ Felony murder requires the killing of another person while committing a delineated felony, including dealing a controlled substance.'^' Dealing can occur in a number of ways, including the delivery or financing ofthe delivery of a controlled substance. '^^ Because Hyche merely attempted to purchase drugs, "delivery" did not apply. ^^^ That Hyche "called another person to request drugs no more makes him a dealer in ecstasy than it would make a customer who calls the florist a dealer in flowers."^^"^ Nor did he "finance" the delivery of drugs by agreeing to pay $30 for them when he "acted merely as a purchaser and not as a creditor or an investor."'^^ Finally, the court of appeals rejected the State's argument that Hyche was an accomplice in dealing drugs. Although he was present at the scene ofthe crime with the dealer, the two were not companions. ^^^ That factor distinguishes the case from those where defendants were active in brokering drug deals and "acting on the distribution side of the transactions. "^^^ Finally, reckless possession of paraphernalia'^^ remains a nearly impossible crime for the State to prove, although some prosecutors continue to file the charge. For several years, the court of appeals has remarked that "a showing of recklessness is impossible without a showing of possible harm," and "it is difficult to imagine a set of facts that would satisfy the elements" of the offense. '^^ In the most recent example, an officer discovered a crack pipe behind the driver's door handle.''^ Because the State could not show any possible harm from that possession of the crack possession, the court held that the trial court should have dismissed the charge.''' 98. Gaynorv. State, 914N.E.2d 815, 816 (Ind.Ct.App.),/ra«5.t:/emW,919N.E.2d558(Ind. 2009) 99. 934 N.E.2d 1 176 (Ind. Ct. App. 2010), trans, denied. 100. Mat 1180. 101. Id at 1178 (citing Ind. Code § 35-42-l-l(3)(C) (2010)). 102. Id (citing Ind. Code § 35-48-4-2(a)). 103. Mat 1179. 104. Id 105. Mat 1180. 106. Id 107. Id 108. Ind. Code § 35-48-4-8.3(c) (201 1). 1 09. Helms v. State, 926 N.E.2d 5 1 1 , 5 1 5 (Ind. Ct. App. 20 1 0) (quoting Castner v. State, 840 N.E.2d 362, 366-67 (Ind. Ct. App. 2006)). 110. Id 111. Id 2011] CRIMINAL LAW 1145 F. Receiving Stolen Property Requires More Than Mere Possession In Fortson v. State, ^^^ the Indiana Supreme Court clarified the proofnecessary for a conviction for receiving stolen property. ^^^ Before 1970, Indiana courts could consider the unexplained possession of recently stolen property as a circumstance from which the factfinder could draw an inference of guilt. ^'"^ Beginning in 1970, though, the rule changed, and convictions based on the unexplained possession ofrecently stolen property standing alone were upheld. ' ^^ In Fortson, the supreme court returned to the pre- 1970 approach, holding that mere unexplained possession of recently stolen property standing alone does not automatically support a conviction for theft. Rather, such possession is to be considered along with the other evidence in a case, such as how recent or distant in time was the possession from the moment the item was stolen, and what are the circumstances of the possession (say, possessing right next door as opposed to many miles away). In essence, the fact of possession and all the surrounding evidence about the possession must be assessed to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt. *^' Applying the rule to the facts in Fortson, the court found insufficient evidence to support the conviction because there was no evidence that the defendant attempted to conceal a stolen truck from police officer, nor did he physically resist the officers, flee, or provide evasive answers. ^^^ Finally, the court endorsed a jury instruction from Montana and encouraged its use in ftiture cases. ^^^ G. Sufficiencyfor Other Crimes The court of appeals addressed the sufficiency of evidence in other contexts, including the frequently litigated realm ofresisting law enforcement and the more novel context of parental discipline and jail sex. 1. Resisting Law Enforcement.—As summarized in last year's survey,^ '^ resisting law enforcement requires proof that a defendant "forcibly" resisted, '^^ and several cases have reversed convictions because the defendant's resistance was passive or otherwise did not involve force directed to the officer. ^^^ Building 112. 919 N.E.2d 1136 (Ind. 2010). 1 13. Id. at 1 139; iND. Code § 35-43-4-2(b). 114. Mat 1141. 115. M at 1 142 (citing Bolton v. State, 261 N.E.2d 841, 843 (Ind. 1970)). 116. Mat 1143. 117. Mat 1144. 118. Matll43n.5. 119. See generally Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 43 Ind. L. Rev. 691, 698-700 (2010). 120. Ind. Code § 35-44-3-3(a)(l) (201 1). 121. See, e.g. , Spangler v. State, 607 N.E.2d 720 (Ind. 1993); Ajabu v. State, 704 N.E.2d 494, 1 146 INDIANA LAW REVIEW [Vol. 44: 1 135 on last year's supreme court opinion in Graham v. State,^^^ the court of appeals in Colvin v. State^^^ found insufficient evidence of forcible resistance when a defendant was "not obeying . . . [officers'] commands" and one officer "had to forcibly take control of the defendant."'^"* The defendant "kept his hands in his pockets during the struggle," and his failure to comply with commands or requiring officers to use force in effectuating an arrest were held insufficient to support the conviction. '^^ Relying on Colvin, the court of appeals found insufficient evidence of forcible resistance in^. C v. State}^^ There, the juvenile respondent did not stand up when asked, leaned away when the officer pulled up his pants, and presented no struggle when the officer handcuffed him.'^^ Even the leaning away from the officer was found insufficient because the officer did not have "to struggle or get physical" with the respondent. '^^ The court of appeals aptly concluded that although A.C.'s conduct "may have justified a physical response from the officer, that does not equate to criminal conducf under the supreme court's resisting jurisprudence.'^^ The defendant must use force; actions that lead an officer to use force will often not lead to criminal liability. 2. Failing to Intervene in Parental Discipline.—In Lay v. State, ^^^ the court of appeals upheld a conviction for neglect of a dependent resulting in serious bodily injury against a father who had taken no part in disciplining his daughter.'^' The child's mother admitted to causing severe injuries and extensive bruising to her three-year-old daughter. *^^ The father heard the spanking while he was playing video games in another room.'^^ The court reasoned that the father's failure to act while he was "nearby" and heard the abuse was sufficient to uphold his conviction. '^"^ The court did not discuss Willis v. State,^^^ where the Indiana Supreme Court reversed a conviction for battery against a single parent who had struck her child with a belt or extension cord, which caused some bruising. '^^ It would seem that a parent who is present in the same home when the other parent is disciplining a child must take an active role to ensure discipline 496 (Ind. Ct. App. 1998); Braster v. State, 596 N.E.2d 278, 280 (Ind. Ct. App. 1992). 122. 903 N.E.2d 963 (Ind. 2009). 123. 916 N.E.2d 306 (Ind. Ct. App. 2009), trans, denied, 929 N.E.2d 783 (Ind. 2010). 124. Mat 308. 125. Mat 309. 126. 929 N.E.2d 907 (Ind. Ct. App. 2010). 127. Mat 91 1-12. 128. Mat 912. 129. Id 130. 933 N.E.2d 38 (Ind. Ct. App.), trans, denied, 940 N.E.2d 829 (Ind. 2010). 131. Mat 43. 132. Id at 42. 133. Id at 43. 134. Id 135. 888 N.E.2d 177 (Ind. 2008). 136. Id at 184. 2011] CRIMINAL LAW 1 1 47 does not cross the line of "excessive force," which was undoubtedly met in Lay but may not be clear in other cases. '^^ 3. Jail Sex Not Necessarily a Crime.—In State v. Moore, ^^^ several inmates in the Greene County jail removed ceiling tiles and climbed through the ceiling into a different cell block where they "would hang out, play cards, and have sex with each other. "'^^ They were charged with escape, which occurs when a person "intentionally flees from lawful detention. "'"^^ Lawful detention includes "detention in a penal facility[.l"^"^^ Because the inmates had no intent to leave the penal facility, the court held that the inmates could not be convicted of escape. ^"^^ The inmates may, however, have violated facility rules for which they could be punished administratively.^"*^ Judge Friedlander dissented, concluding that "lawful detention may exist within the boundaries of an institution, and such detention is separate and distinct from the detention inherent in being confined to the facility itself "^^^ 4. Explaining Verdict Can Undermine It.—Although the appellate standard ofreview for sufficient evidence is usually a very deferential one, greater scrutiny could occur if a trial judge discusses its rationale for the verdict. In Kribs v. State, ^^^ a judge found a man guilty of entering a controlled area of an airport with a weapon, a Class A misdemeanor, at a bench trial. '"^^ After rendering the verdict, though, the trial judge stated that there was no "malicious intent" and he believed the defendant "didn't remember" he had the gun in his possession when he entered the airport.'"*^ Had the judge remained silent, the court of appeals would have looked only to evidence that supported the verdict and "not have second-guessed such an assessment of the evidence."^"*^ But based on the trial court's post-verdict statements, the court of appeals was constrained to defer to the trial court's express assessment ofthe witnesses and reverse the conviction.'"*^ Thus, although in some contexts judges must explain their decisions, '^^ when 137. See generally Matthew v. State, 892 N.E.2d 695 (Ind. Ct. App. 2008) (affirming battery conviction by 2-1 vote because parental discipline was unreasonable). 138. 914 N.E.2d 304 (Ind. Ct. App.), trans, denied, 919 N.E.2d 560 (Ind. 2009). 139. Mat 305. 140. Ind. Code § 35-44-3-5(a) (201 1). 141. Id §35-41-l-18(a)(3). 142. Moore, 914 N.E.2d at 307. 143. Id 144. Id. at 314 (Friedlander, J., dissenting). 145. 917 N.E.2d 1249 (Ind. Ct. App. 2009). 146. Id at 1249. 147. Mat 1250. 148. Id 149. Id 150. See supra Part II.A (discussing bail appeals); accord Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (requiring trial courts to "enter a statement including reasonably detailed reasons or circumstances for imposing a particular sentence"); Brown v. State, 703 N.E.2d 1010, 1020 (Ind. 1998) (encouraging factual findings regarding serious evidentiary disputes in the jury 1 148 INDIANA LAW REVIEW [Vol. 44:1 135 rendering a bench verdict, saying less may be better. H. Transferred Intent Presents No Obstacle in Enhancing Offenses At first blush, D.H. v. State^^^ seems like a straightforward case oftransferred intent. During a verbal exchange between students in a classroom, one student threw a punch toward the other but missed and hit the teacher. Missing the intended victim and hitting someone else is not a defense. '^^ But if the student had struck the other student, he would have committed only a misdemeanor; the crime became a felony because he struck a teacher.^" The court of appeals nevertheless upheld the felony conviction, reasoning that the State was required only to prove that D.H. "knowingly or intentionally struck someone, and then prove beyond a reasonable doubt that the victim happened to be a teacher. "^^"^ It relied on Markley v. State, ^^^ which held that "the culpability requirement applies only to the conduct of the statute."^^^ This principle from Markley, however, is hardly settled law. Indiana Code section 35-41-2-2(d) provides that the culpability required for the commission of an offense is "required with respect to every material element of the prohibited conduct."' ^^ Case law interpreting the statute is "riddled with inconsistent interpretation,"'^^ such as Louallen v. State, ^^'^ which held that the statute "requires that the level of mental culpability required for commission of the offense itself is required with respect to every element ofthe offense—not every element of the prohibited conduct, as the statute requires, but every element of the offense ''^^^ Although transfer was not sought in D.H., the reach of intent to the other statutory elements of offenses is an issue likely to resurface in future appellate cases and cause continued confusion for trial courts when crafting jury instructions.'^' /. Enhancing Drug Offenses Within 1,000 Feet of . . . Anything The Indiana Supreme Court considered three cases involving enhanced crimes for drug offenses. Possessing or dealing cocaine is a felony but may be ftirther enhanced when the defendant is within 1 ,000 feet of school property. instruction context). 151. 932 N.E.2d 236 (Ind. Ct. App. 2010). 152. Mat 238. 153. Id. 154. Mat 239. 155. 421 N.E.2d 20 (Ind. Ct. App. 1981). 156. D.H., 929 N.E.2d at 238 (citing Markley, 421 N.E.2d at 21-22). 157. Ind. Code §35-41-2-2(d) (2011). 158. Graham C. Polando, Markley's Forgotten Revolution: Connecting Mental States in Indiana 's Criminal Code, RES Gestae 24, 24 (Jan./Feb. 2010). 159. 778 N.E.2d 794 (Ind. 2002). 160. Polando, supra note 158, at 26 (citation omitted). 161. See id. 2011] CRIMINAL LAW 1149 public parks, family housing complexes, or youth program centers. '^^ Another statute provides a "defense" to the enhanced charge when: (1) a person was briefly in, on, or within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center; and (2) no person under eighteen (18) years of age at least three (3) years junior to the person was in, on, or within one thousand ( 1 ,000) feet ofthe school property, public park, family housing complex, or youth program center at the time of the offense. '^^ In two cases decided on the same day, the Indiana Supreme Court clarified the procedures and burdens for this defense. The court adopted the approach applied in Harrison v. State, ^^^ which drew upon its analysis of the loaded/unloaded distinction in pointing a firearm cases from Adkins v. State }^^ Specifically, subsection 16(b) "constitutes a mitigating factor that reduces culpability, and therefore the defendant does not have the burden of proof but 'only the burden of placing the issue in question where the State's evidence has not done so.'"'^^ Once the defense is put at issue, the State must rebut the defense by proving beyond a reasonable doubt either that the defendant was within 1 000 feet of a public park more than "briefly" or persons under the age of eighteen at least three years junior to the defendant were within 1000 feet of the public park . . . }^'' The term "briefly" is not defined in the statute, but the court defined it as "a period of time no longer than reasonably necessary for a defendant's intrusion into the proscribed zone principally for conduct unrelated to unlawful drug activities, provided that the defendant's activities related to the charged offense are not visible."^^^ In Griffin v. State,^^^ the defendant was stopped at 2:15 a.m. near a school after being observed pushing his moped for five minutes. '^^ The police officer testified that he did not see any children on or near the school property, which was sufficient to raise an issue under the second prong ofthe defense and require the State to rebut the defense. ^^^ Because the defense could be defeated by the State rebutting either prong, the court then turned to the "briefly" issue ofthe first prong. The court emphasized the importance ofcontext, reasoning that "the word 162. IND. Code §§ 35-48-4-2, 35-6(b). 163. Id §35-48-4- 16(b). 164. 901 N.E.2d 635 (Ind. Ct. App.), trans, denied, 915 N.E.2d 991 (Ind. 2009). 165. 887 N.E.2d 934 (Ind. 2008). 166. Griffin v. State, 925 N.E.2d 344, 347 (Ind. 2010) (quoting Harrison, 901 N.E.2d at 642). 167. Id 168. Mat 349-50. 169. 925 N.E.2d 344 (Ind. 2010). 170. Mat 347. 171. Mat 347-48. 1150 INDIANA LAW REVIEW [Vol. 44: 1 1 35 implies that such duration must be determined in relation to other considerations, not merely an abstract, temporal component. "^^^ The term "could encompass a greater duration of time" when a defendant's purpose in entering the proscribed zone was for a purpose other than illicit drug activities, whereas even a relatively short time period would qualify if the purpose for entering the zone was drug activity, "especially if such activity is visible to any children. "'^^ Because the State proved neither that Griffin's few minutes within the 1000-foot zone "lasted longer than reasonably necessary to push the moped down the street nor that his criminal activities while there would have been visible to any children ifpresent," the court reduced his B felony conviction for possession of cocaine to a D felony. '^"^ The court applied the same analytical framework but reached a different result in Gallagher v. State}^^ There, the State agreed that no one under the age of eighteen was present when the drug exchange occurred around 3:00 a.m. However, the defendant was in the proscribed zone for at least thirteen minutes, during which he was "principally engaged in conduct related to unlawful drug activities clearly visible to anyone present," which the court concluded does not qualify as "briefly."^'' In another cases, the supreme court considered the meaning of "a youth program center," which also allows an enhancement under Indiana Code section 35-48-4-6. In Whatley v. State,^^^ the court rejected vagueness and sufficiency challenges when the defendant was arrested near the Robinson Community Church (RCC).'^^ Although the statute requires that youth programs or services be provided on a "regular" basis to qualify for the enhancement, the court found the statute did not fail for vagueness because "Whatley could have objectively discovered RCC's status as a youth program center by observing young people entering and exiting the building on a regular basis—in fact, his residence faced RCC's entrance."'^^ As to the sufficiency claim, the court cited several youth programs regularly offered at the church. ^^^ J. A New Guilty Plea Advisement Most cases summarized in the survey apply a common law, statutory, or constitutional rule to a set of facts. Hopper v. State^^^ is a rare case, grounded 172. Mat 349. 173. Id 174. /J. at 350. 175. 925 N.E.2d 350 (Ind. 2010). 176. Id at 354-55. The court also considered and rejected the defendant's claim that he was within the proscribed zone "at the request or suggestion of a law enforcement officer or an agent of a law enforcement officer." Id. at 355 (quoting iND. CODE § 35-48-4-16(c) (2010)). 177. 928 N.E.2d 202 (Ind. 2010). 178. Mat 206-07. 179. Mat 206. 180. Id at 207. 181. 934 N.E.2d 1086 (Ind. 2010). 2011] CRIMINAL LAW 1151 instead in the supreme court's supervisory power over lower courts. Since 1975, Faretta v. California^^^ has required advising defendants of the dangers of self-representation at trial, but different considerations are at play when a defendant pleads guilty. '^^ The Sixth Amendment generally does not require advisement of specific risks of waiving counsel before pleading guilty, but state courts are free to adopt guidelines they deem useful. '^"^ Hopper did just that, holding that Indiana affords rights beyond Faretta. Defendants must also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution's case. Such an advisement will require minimal additional time or effort at the initial hearing, and may encourage defendants to accept counsel. ^^^ Chief Justice Shepard, joined by Justice Dickson, dissented by posing several pointed questions: How many innocent people are now pleading guilty without a lawyer because the judge did not tell them they could consult a lawyer? How many guilty people will decide not to plead guilty as the result of the "minimal" judicial intervention the majority says it contemplates? If indeed the advisement is likely to be minimal, does it tell offenders anything they didn't learn from television? How many repeat offenders will avoid the penalties they have otherwise earned because the warning was omitted or was found inadequate with the benefit ofhindsight? How many victims will these repeat offenders create? '^^ Because the Hopper rule applies only to future cases, '^^ it would appear unlikely to lead to the wide-scale setting aside of guilty pleas and victimization by "repeat offenders." The Benchbook, which is widely used by Indiana trial judges as a guide for legal procedure, can easily be modified to include the advisement, which judges will routinely read to defendants. Rather than dissuading a defendant from pleading guilty, the advisement may encourage a defendant to engage the services of a lawyer, which the majority observed could lead to fewer defendants proceeding pro se and more expeditious proceedings with the assistance of counsel. ^^^ Finally, although it is difficult to know what the average defendant may have learned from television, most lawyer shows seem to focus on the glamour of trials instead of the "nitty-gritty" of plea negotiations. 182. 422 U.S. 806(1975). 183. See Hopper, 92Sl.A.l\iom2iS,, Appellate Review ofSentences andthe Development ofSentencing Policy: The English Experience, 20 Ala. L. Rev. 193, 194, 197 (1968). 247. See generally Serino v. State, 798 N.E.2d 852, 857-58 (Ind. 2003). 248. Thomas, supra note 246, at 203. In reviewing sentences of defendants who plead guilty in England, "the Court of Appeal has formulated the principle that ... an offender's remorse, expressed in his plea ofguilty, may properly be recognized as a mitigating factor." Id. at 20 1 . The supreme court has taken a similar view, recognizing that an early guilty plea saves the victims from going through a full-blown trial and conserves limited prosecutorial and judicial resources; therefore, it is a mitigating circumstance entitled to significant weight. Francis v. State, 8 1 7 N.E.2d 235, 238 (Ind. 2004). 2011] CRIMINAL LAW 1159 concurrent sentences in a case with separate and extraordinary harm to multiple victims, the crimes in Akard were committed against the same victim.^"*^ Moreover, an increase may be warranted for a defendant with a violent and lengthy criminal history who receives a near-minimum sentence, but the defendant there had a modest criminal history and received near-maximum and consecutive sentences. Requiring the recitation and application ofthese principles would ensure that any increase on appeal occurs with consistency and only in a most extreme and unusual case. The English appellate court "is clearly conscious of its policy making role" and appropriately "establishes policy not by dramatic declarations in isolated decisions but by regularly exhibiting the same approach to the same kind of case."^^' Although sentencing appeals in Indiana are randomly assigned to rotating panels on the court ofappeals, sentence revisions (both reductions and increases) should not be anything close to random. Rather, revisions should occur in a consistent manner grounded in principle and precedent. Appellate counsel has no idea which three judges will hear a case when advising a client whether to appeal a sentence, and some judges are more amenable to revisions than others. Limiting and better defining the ability of appellate courts to increase sentences is crucial to allow appellate counsel the ability to fulfill their ethical and constitutional responsibility to provide competent and effective advice to clients who seek to appeal their sentence. It is also essential to fulfill the laudable goal of the review and revise power; "a respectable legal system attempts to impose similar sentences on perpetrators committing the same acts who have the same backgrounds."^^^ M Probation A pair of cases highlights limitations on the use of probable cause affidavits at probation revocation hearings. In Davis v. State,^^^ defense counsel admitted his client had been arrested for a crime while on probation. ^^"^ Although an admission by counsel is binding on the probationer, the majority nevertheless found insufficient evidence to support revocation because there was no admission of probable cause for the arrest.^^^ Moreover, the State offered no evidence that Davis had committed an offense; nor was the probable cause affidavit admitted into evidence.^^^ Judge Mathias dissented, noting that counsel did not simply admit an arrest but also an "agreement" for "twelve years" in prison, which 249. Akard v. State, 924 N.E.2d 202, 204-05 (Ind. Ct. App.), vacated, 937 N.E.2d 81 1 (Ind. 2010). 250. Id. at 21 1-12. 25 1 . Thomas, supra note 246, at 1 97. 252. Serino, 798 N.E.2d at 854. 253. 916 N.E.2d 736 (Ind. Ct. App. 2009), trans, denied, 929 N.E.2d 786 (Ind. 2010). 254. Mat 740. 255. Id 256. Id 1160 INDIANA LAW REVIEW [Vol. 44:1135 evidenced an agreement that his probation would be revoked.^^^ In Figures v. State,^^^ the court of appeals held that a trial court erred in admitting into evidence a probable cause affidavit "absent any foundation to establish its reliability. "^^^ Although the rules of evidence do not apply in probation hearings, hearsay evidence is only admissible if "substantially trustworthy."^^^ Trial courts are encouraged to explain on the record why the hearsay is trustworthy, which did not occur in Figures; nor was any corroborating evidence offered.~^^ Although the court had previously affirmed the revocation of probation in a case supported only by a probable cause affidavit,^^^ the panel in Figures found that case distinguishable because it did not involve an affidavit from a case that was dismissed.^^^ Figures reiterated the general "risk of unreliability" in any probable cause affidavit. ^^"^ A case could be dismissed for a variety of reasons, though, which may have little to do with the probable cause affidavit. For example, one or more cases might be dismissed as part of a plea agreement to charges in another case. The safer route for prosecutors and trial courts would be to avoid reliance on probable cause affidavits and instead secure an admission to the arrest with the stipulation that it was supported by probable cause or call a witness to establish the facts supporting the arrest. The burden of proof in probation proceedings is merely by a preponderance of the evidence,^^^ and securing a proper stipulation or calling a witness would seem to pose a minimal burden before revocation and a lengthy prison sentence. Simply proving some violation other than a new arrest (such as failing to report to probation or complete community service work) is a safer path to support revocation. ^^^ A^. Sex Offender Registry As summarized in last year's survey,^^^ the Indiana Supreme Court held in Wallace v. State^^^ that the Sex Offender Registration Act does not apply to defendants who committed offenses before the Act was enacted.^^^ That opinion spawned appellate opinions on a variety of related issues and new legislation to create a procedure for removal of Wallace-like defendants from the registry. In the wake of Wallace, many defendants filed petitions in the court where 257. Id: at 741 (Mathias, J., dissenting). 258. 920 N.E.2d 267 (Ind. Ct. App. 2010). 259. Id at 272. 260. Id at 271. 261. Id at 271-72. 262. Id at 272 (citing Whatley v. State, 847 N.E.2d 1007 (Ind. Ct. App. 2006)). 263. Id 264. Id (quoting Tate v. State, 835 N.E.2d 499, 509 (Ind. Ct. App. 2005)). 265. Id 266. See id. 267. Schumm, supra note 1 19, at 716-17. 268. 905 N.E.2d 371 (Ind. 2009). 269. Id at 384. 2011] CRIMINAL LAW 1161 they had been convicted requesting removal. Even a letter to the judge could sometimes result in removal from the registry.^^^ The 2010 legislation changed much of this, requiring a petition for removal to be filed in the circuit or superior court where the offender currently resides.^^' Non-resident offenders are required to file the petition in the county where they work or go to school.^^^ The petition for removal must list information about each conviction (date, court, and whether by plea or trial), list each jurisdiction where the person is required to register, and be made under penalty of perjury.^^^ A petition may be summarily dismissed or set for a hearing.^^"^ If a hearing is scheduled, notice must be given to the department of correction, attorney general, prosecuting attorney (where the petition was filed, where the offender was convicted, and where the offender resides), and the sheriff in the county of the offender's residence.^^^ In addition to the statutory requirements, the attorney general's office has requested that judges construct their removal orders to instruct the sex offenders that they may be required to register under the federal Sex Offender Registration and Notification Act (SORNA).^^^ Not surprisingly, some judges have been hesitant to "muddy the waters" with such language or overstep their jurisdiction.^^^ In the weeks after the statutory amendments, which took effect on March 24, 2010, the court of appeals affirmed the denials of motions that did not comply with (and had been filed months earlier than) the new procedures. For example, in Wiggins v. State,^^^ the court stressed that it did not "have enough information to make a determination as to whether Wiggins should be required to continue registering as a sexual violent predator."^^^ He was directed to file an amended petition that complied with the statutory requirements in the county in which he resides.^^^ Similar instructions were given to a defendant who filed the petition in Noble County, where he had pleaded guilty to child molesting in 1994 but was presently incarcerated in a state prison in Henry County on a sentence out of Huntington County.^^' Other cases were found not ripe for adjudication. For example, in Gardner V. State,^^^ the court of appeals considered an ex post facto claim of a man currently incarcerated for a murder conviction. Although the man was convicted 270. See Rebecca S. Green, Judges, State Duel over Sex Registry, J. GAZETTE, July 12,2010, available at http://www.joumalgazette.net/article/20 1 007 1 2/LOCAL03/307 1 29994. 27 1 . IND. Code § 1 1 -8-8-22(d) (20 1 1 ). 272. Id 273. Id 274. Id 275. Id 276. Green, supra note 270. 277. Id 278. 928 N.E.2d 837 (Ind. Ct. App. 2010). 279. Id at 838. 280. Id at 840. 281. Brogan v. State, 925 N.E.2d 1285, 1290 (Ind. Ct. App. 2010). 282. 923 N.E.2d 959 (Ind. Ct. App. 2009). 1 1 62 INDIANA LAW REVIEW [Vol. 44: 1 1 35 in 1989, years before the violent offender registry was created, he was presently incarcerated and no evidence was offered that he "[had] been court-ordered to register as a violent offender, or that he . . . [had] been notified by any correctional authority or registry coordinator that he . . . [would] be required to register."^^^ In Vickery v. State,^^"^ the court of appeals relied heavily on Jensen v. State^^^ in finding no ex post facto violation from the designation of a defendant on the registry as a sexually violent predator (SVP). At the time of his guilty plea in 2000, Jensen was required to register as a sex offender for ten years.^^^ The 2006 amendments, however, classified him as a "sexually violent predator" and required lifetime registration.^^^ The plurality opinion, written by Justice Rucker and joined by Chief Justice Shepard, found that some of the Mendoza-Martinez factors weighed differently in distinguishing Wallace?^^ As to the weighty seventh factor, the plurality emphasized that the "broad and sweeping" disclosure requirements were in effect in 2000 and that sexually violent predators may petition the trial court after ten years to have their status changed, which could result in removal from the registry.^^^ Vickery similarly emphasized that the defendant, who committed his offense after the registry was created but before the sexually violent predator (SVP) designation existed, had an opportunity to petition for removal of the SVP designation, which counseled against a conclusion that the act was punitive.^^^ Wallace seldom helps defendants convicted of sex offenses in other states. Indiana Code section 1 1-8-8- 19(f) requires offenders who are required to register as a sex offender in another state to register in Indiana for the same period required in the other state. In Herron v. State,^^^ the court rejected the ex post facto challenge of a man required to register for life under Arizona law because the registration requirement was in effect at the time of the offense.^^^ Not all registry offenders struck out, though. In Hevner v. State,^"*^ the supreme court applied and extended Wallace to a defendant who committed possession of child pornography in 2005. The registry statute was amended in 2007 to include child pomography.^^"^ The ex post facto clauses prohibit additional punishment for acts that were not punishable at the time of the 283. Mat 960. 284. 932 N.E.2d 678 (Ind. Ct. App. 2010). 285. 905 N.E.2d 384 (Ind. 2009). 286. Id. at 388-89. 287. Id. at 389. 288. Mat 391-94. 289. Id at 394. 290. Vickery v. State, 932 N.E.2d 678, 682 (Ind. Ct. App. 2010). 291. 918 N.E.2d 682 (Ind. Ct. App. 2009). 292. Id at 684. 293. 919 N.E.2d 109 (Ind. 2010). 294. Id at 1 1 1 (citing iND. CODE § 1 l-8-4.5(a)(13) (2010)). Previously, first-time offenses did not qualify. 2011] CRIMINAL LAW 1163 offense.^^^ Although the statute was amended before Hevner's trial and sentencing, he could not be ordered to register as a sex offender because doing so would impose additional punishment beyond what could have been imposed at the time of the offense.^^^ In Blakemore v. State,^^^ the court of appeals rejected some novel arguments by the State in a case involving a defendant convicted of an offense that was not part of the registry when committed in 1999.^^^ The State attempted to escape Wallace' s> reach because the defendant agreed to follow the statutory guidelines for sex offender registration as part of his plea agreement.^^^ The court emphasized the contractual nature of a plea agreement and declined to enlarge the agreement beyond the statute at the time "to predict any changes in the law the legislature might subsequently enact, and to comply with any such changes."^^^ The court also rejected the State's argument that Blakemore was required to object to the constitutional concerns when he pleaded guilty because "neither he nor his counsel could be expected to predict what amendments our legislature might make to the sex offender registration act."^^^ Finally, beyond the ex post facto realm, in Branch v. State^^^ the defendant was charged with failing to register a change of address. The court of appeals considered the meaning ofthe statutorily defined terms "principal residence" and "temporary residence" in the context of the defendant's claim that he was homeless.^^^ The majority upheld the conviction because the defendant failed to register a change of address from the homeless shelter where he lived for several days before staying in several different places for only a few days at a time.^^"^ Judge Riley dissented, concluding that the charge did not reference the proper statutory section when the defendant had neither a principal nor a temporary residence.^^^ 295. Id. 296. Mat 112-13. 297. 925 N.E.2d 759 (Ind. Ct. App. 2010). 298. Mat 760-61. 299. Id. at 762. 300. Id 301. Mat 762-63. 302. 917 N.E.2d 1283 (Ind. Ct. App. 2009). 303. Id at 1284-85. 304. Mat 1286. 305. Id. at 1287 (Riley, J., dissenting).