Indiana Court of Appeals

Gellenbeck v. State, 79A02-0903-CR-253

2nd Dist., 12-30-09, Ind.App.

Attorney: Bruce W. Graham

Holding: State presented sufficient evidence for a reasonable jury to conclude that Defendant was complaining witness’s (CW’s) custodian for purposes of child seduction statute. As used in I.C. 35-42-4-7, “custodian” means any person who resides with a child and is responsible for the child’s welfare. Here, although CW’s father still retained some authority over her, record contains ample evidence to allow jury to conclude that Defendant, CW’s uncle, was a “custodian” under Indiana’s child seduction statute. Evidence showed that Defendant and his wife had responsibility for parental tasks; they provided CW with food, shelter, and transportation; helped with school and were authorized to discipline CW if she failed to follow their rules. Moreover, CW regarded Defendant as a father figure.

Court also found no abuse of discretion in considering Defendant’s relationship with CW, the disparity in their ages, and her mental condition to be aggravating circumstances. Defendant was not merely a custodian but an uncle with whom CW was close and a person she considered to be a father figure. Nature of Defendant’s offenses seemed more heinous than “typical” cases of child seduction, thus seven-and-one-half year sentence with three and one-half years suspended to probation was not inappropriately harsh. Held, judgment affirmed.

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Herron v. State, 55A05-0906-CV-341

5th Dist., 12-29-09, Ind.App.

Attorney: Steven C. Litz

Holding: Defendant, who was required by Arizona to register as a sex offender for life when he committed his offense in 1983, is a “sex offender” who is required to register for life under Indiana’s Sex Offender Registration Act. I.C. 11-8-8-19(f) provides that a person required to register as a sex offender in any jurisdiction shall register in Indiana for the period required by the other jurisdiction. Defendant waived his ex post facto argument based on Wallace v. State, 905 N.E.2d 371 (Ind. 2009) because he did not present the issue to the trial court. Waiver notwithstanding, the Act is not an ex post facto law as applied to Defendant. In Jenkins v. State, 905 N.E.2d 384 (Ind. 2009), plurality of Court held that portions of Indiana’s Sex Offender Registration Act requiring lifetime registration may be applied retroactively if the offender was already required to register at time of his offense. This was the case with Defendant, who was required to register as a sex offender when he committed his offense. Wallace, unlike Defendant, was not required to register when he committed his offense and therefore could not be subjected to the entirety of the Act. Held, trial court’s order affirming Defendant’s lifetime obligation to register in Indiana as sex offender affirmed.

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Branch v. State, 82A04-0905-CR-265

4th Dist, 12-17-09, Ind.App.

Attorney: David Shaw

Holding: There was sufficient evidence to support Defendant’s conviction for failing to register as a sex offender. If a sex offender changes his principal address, he must report in person to the local law enforcement authority his current address not more than seventy-two hours after the address change. I.C. 11-8-8-11(a). If a sex offender registers a temporary residence or is homeless, he must report in person to the local law enforcement authority in the county where he resides at least once every seven days. I.C. 11-8-8-12. Here, Defendant, who was a sex offender, moved to Vanderburgh County and registered as a sex offender with his home being listed as United Caring, a shelter suggested to Defendant by a deputy sheriff. After about ten days at the shelter, Defendant stayed at different places, never staying more than four consecutive days in any one place. Defendant did not report his change of address and conceded that United Caring was his principal address. Although he did not have a new address, he failed to report that his address was no longer United Caring within seventy-two hours of leaving. Thus, there was sufficient evidence he failed to register. Held, judgment affirmed; Riley, J., dissenting on basis that United Caring was not Defendant’s principal residence and thus the charging information did not reference the proper statutory section applying the proper requirements.

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Greer and Maggi v. Buss, 49A02-0903-CV-243

2nd Dist., 12-17-09, Ind.App.

Attorney: Gavin Rose; Kenneth Falk

Holding: Trial court erred by finding that a pre-2008 statute required the ten-year sex offender registration period to start anew if the sex offender was convicted of a new offense. Before 2008, I.C. 11-8-8-19(a) required a sex or violent offender to register until the expiration of ten years after the date the sex or violent offender: is released from a penal facility or a secure juvenile detention facility; is placed in a community transition program; is placed in a community corrections program; is placed on parole or is placed on probation whichever occurs last. In 2008, the legislature added the following language to I.C. 11-8-8-19(a): the registration period does not restart if the offender is convicted of a subsequent offense; however, if the subsequent offense is a sex or violent offense, a new registration period may be imposed in according with this chapter.

Here, the DOC is interpreting the pre-2008 statute to require second registration upon a subsequent conviction for any offense whatsoever. The DOC’s interpretation of the statute is inconsistent with the rule of lenity requiring all penal statutes to be construed in favor of the defendant. The pre-2008 statute contained no language suggesting that the required registration would be triggered for a second ten-year registration period upon a subsequent conviction. Moreover, the DOC’s interpretation of the pre-2008 statute violated ex post facto as applied to Greer and Maggi. Greer was convicted of child molesting in 1991 before the registry ever existed, and Maggi was convicted of possession of child pornography in 1998 before it was a registerable offense. But, because they both were convicted of OWIs later, the DOC required them to register. This violated the Indiana constitutional protection against ex post facto laws. Similarly, the application of the residency restriction to Greer violated the ex post facto clause regardless of whether Greer owned property within 1000 feet of a school, park, etc. Thus, trial court erred by granting summary judgment in favor of the DOC. Held, judgment reversed in part and affirmed in part.

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Sanquenetti v. State, 61A01-0907-CR-344

1st Dist., 12-17-09, Ind.App.

Attorney: Daniel M. Grove

Holding: Advisory sentence of four years for Defendant’s class C felony nonsupport of a dependent conviction was inappropriate in light of nature of offense and her character. Regarding nature of offense, Court noted that there is no evidence of hardship or sacrifice suffered by the children or custodial parent. Moreover, Court had “serious concerns that there is no valid basis for Sanquenetti’s class C felony conviction.” Amount of child support for years 2005 through 2007 should not be included as a basis for Defendant’s criminal liability under I.C. 35-46-1-5 because that section only imposes criminal liability for children under 18 years of age, and Defendant’s children were eighteen years of age or older during this time frame. As to Defendant’s character, Court noted that she pled guilty, which reflects favorably on her character. Further, record suggest that her failure to pay child support was not made in callous disregard of her children’s needs. Held, reversed and remanded with instructions to revise sentence to two years executed. Vaidik, J., dissenting, notes that “majority appears to be using Sanquenetti’s sentencing challenge as a vehicle to correct what it perceives to be an injustice.”

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