February 2010 Posts

Laster v. State, 31A05-0904-CR-207

5th Dist, 12-22-09, Ind.App.

Attorney: Matthew McGovern

Holding: Defendant’s consecutive sentences for two class A felony child molest convictions and four class C felony molest convictions were inappropriate. The burden is on the defendant to persuade the appellate courts that his sentence is inappropriate. Here, Defendant moved in with his girlfriend, the victim’s mother, when the victim was five years old. Defendant molested the victim between five and ten times over three years. Defendant threatened the victim that if he told anyone, he would call the cops and have his mom taken to jail. The victim told his older sister about the molestations approximately one year after Defendant had moved out of the home. Defendant was sentenced to thirty-six years on two Class A felonies and six years on four class C felonies to run consecutively, for a total of ninety-six years. Given the position of trust that Defendant occupied with the victim and his threats to the child, enhanced terms were warranted. But Defendant’s lack of criminal history and steady employment, together with the facts that there was one victim and no uncharged sexual misconduct, make the consecutive sentences inappropriate. Court reversed Defendant’s sentence to thirty-six years on each of the two class A felony convictions and six years on each of the four class C felony convictions, to be served concurrently. Held, judgment affirmed in part and reversed in part.

Friday, February 26th, 2010 | Posted in Indiana Court of Appeals | No Comments »

Mogg v. State, 29A04-0902-CR-82 4th Dist., 12-31-09, Ind.App. Attorney: James Crum

Holding: Trial court did not abuse its discretion by admitting SCRAM data into evidence at a probation revocation hearing. Expert scientific testimony is admissible in probation revocation proceedings only upon some showing of reliability, which may be established by judicial notice or a sufficient foundation to persuade trial court that the relevant scientific principles are reliable. Although Rule 702(b) does not apply to probation revocation hearings, caselaw regarding Rule 702(b) and the factors articulated in Daubert are helpful to Indiana courts in determining whether expert scientific testimony in probation revocation hearings possesses substantial indicia of reliability and is therefore properly admissible.

Here, as part of Defendant’s probation, she was ordered not to consume alcohol and to wear a Secure Continuous Remote Alcohol Monitor (“SCRAM”) bracelet. The State filed a petition to revoke Defendant’s probation based on two positive SCRAM results indicating she had two drinking events. At the hearing, the State presented testimony of the co-founder and chief technology officer of Alcohol Monitoring Systems, Inc. (“AMS”), where he co-invented the SCRAM system. He testified to how SCRAM works and the error rate based on AMS internal study. The State also presented two published studies: one funded in part by AMS and another by NHTSA. Each of the studies identified an error rate for the SCRAM system that the studies’ authors did not regard as problematic with respect to false positive readings. Defendant presented a Michigan Law Journal article, a law blog entry respectively arguing that the system is inadmissible and unreliable and Defendant denied drinking. Even assuming that SCRAM has not gained general acceptance in the community, the facts in the case supported trial court’s finding that the SCRAM data was reliable and sufficient to support the revocation.

This holding is based on the record before the trial court and expert testimony that was largely uncontroverted by Defendant, thus leaving for another day whether the result would be different upon a different record where the indicia of the SCRAM system’s reliability were more closely disputed. The Court cautions that the SCRAM data is not admissible in any type of proceeding or for purposes other than to prove the subject consumed alcohol. Moreover, the State must present sufficient evidence that the monitoring system was functioning reliably, and the probationer should be given the opportunity to cross-examine the expert who analyzed the data and opined consumption. Held, judgment affirmed.

Friday, February 26th, 2010 | Posted in Indiana Court of Appeals | No Comments »

Wilkerson v. State, 48A05-0908-CR-458

5th Dist., 12-23-09, Ind.App.

Attorney: David W. Stone

Holding: Evidence was sufficient to support revocation of Defendant’s probation, based on evidence that he constructively possessed twenty-six grams of cocaine. To prove constructive possession, State must show that Defendant has both: 1) the intent to maintain dominion and control over the drugs and 2) the capability to maintain dominion and control over the drugs. Gee v. State, 810 N.E.2d 338 (Ind. 2004). Where, as here, Defendant’s possession of premises upon which drugs are found is not exclusive, inference of intent to maintain dominion and control over drugs must be supported by additional circumstances pointing to Defendant’s knowledge of presence of drugs. Here, search incident to Defendant’s arrest produced $580 and a scale found in his jacket pocket that contained white residue that field tested positive for cocaine. Later that day, officers found 26 grams of crack cocaine in a shoe box in bedroom closet of residence where Defendant lived. State proved by preponderance of evidence that Defendant constructively possessed the cocaine. Held, judgment affirmed.

Friday, February 26th, 2010 | Posted in Indiana Court of Appeals | No Comments »

Abrajan v. State, 49A04-0905-CR-264

5th Dist., 12-08-09, Ind.App.

Attorney: David Pardo

Holding: Trial court erred in citing Defendant’s use of a gun while committing Class A felony rape as an aggravator, because use of the gun was a material element of the offense. Angleton v. State, 714 N.E.2d 156, 160 (Ind. 1999). However, fact that Defendant committed the offense within the presence of a child, who was placed in next room, was a valid aggravator under I.C. 35-38-1-7.1(a)(4)(B)(I). Defendant argued that the presence of a child aggravator was not legitimate because there was no evidence the rape victim’s daughter saw or heard her mother being raped. However, Court noted this aggravator does not require that the child actually see or hear the offense taking place. Firestone v. State, 838 N.E.2d 468 (Ind. Ct. App. 2005). Given the severity of the presence of a child aggravator, trial court would have imposed the same sentence even in the absence of the invalid aggravator. Thus, error in finding use of a gun aggravator was harmless. Held, judgment affirmed.

Friday, February 26th, 2010 | Posted in Indiana Court of Appeals | No Comments »

Martinez v. State, 49A04-0905-CR-289

4th Dist., 12-14-10, Ind.App.

Attorney: Jeffrey A. Lockwood

Holding: In child molesting prosecution, trial court did not abuse its discretion in denying Defendant’s motion to correct error after CW, his 12-year-old niece, recanted her story that Defendant molested her. CW had told same story to a victim advocate, a forensic child interviewer, welfare caseworkers, prosecuting attorney, and defense counsel before trial. She was thoroughly questioned at trial by prosecutor and cross-examined by defense counsel. After Defendant was convicted, CW gave a deposition to her attorney that Defendant had not molested her and she made up allegations because she was mad at him for hitting her a few years earlier. Neither State nor defense counsel were notified or present during deposition.

Court rejected Defendant’s argument that State was required to designate new evidence in form of affidavits to counter CW’s post-trial recantation. CW’s pretrial interview and pretrial deposition was sufficient to counter CW’s post-trial version of events. Best v. State, 418 N.E.2d 316 (Ind.Ct.App. 1982). Under these circumstances, Court could not say trial court abused its discretion by finding CW’s recantation not worthy of credit and denying Defendant’s motion for new trial. CW’s story was consistent until after her uncle was convicted and she overheard her parents say he could be sentenced to 50 years in prison. It was possible CW recanted her story due to her mother’s fears her marriage would fall apart because of the conviction and her mother was being ostracized in her community. Held, judgment affirmed.

Friday, February 26th, 2010 | Posted in Indiana Court of Appeals | No Comments »