ILNews

COA adjusts sentence for child molestation

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals affirmed a defendant's convictions of child molestation and child exploitation, but it adjusted his sentence after finding a mathematical error by the trial court.

In Roy Bennett v. State of Indiana, No. 79A05-0705-CR-240, Bennett appealed his convictions and sentence for two counts of Class D felony child exploitation and three counts of Class C felony child molestation. Bennett's adopted daughter accused him of sexually molesting her and police searched Bennett's home, finding several computer discs containing pornographic movies. His daughter later recanted her story but then renewed her allegations. A week before his trial was to begin, Bennett fled to Mississippi and assumed a new identity. He was later found and returned to Indiana for trial.

On appeal, Bennett argued the trial court erred by allowing evidence of his failure to appear for trial, the investigation to locate him, and the discovery of his residing in Mississippi under an assumed identity. He cited Dill v. State, 741 N.E.2d 1230 (Ind. 2001) to support his argument that evidence should be excluded because he didn't flee immediately from the scene of the crime or to avoid immediate apprehension.

Bennett is wrong in his understanding of Dill, and the Indiana Supreme Court held in the decision that flight and its related conduct may be considered by a jury in determining a defendant's guilt, wrote Senior Judge George Hoffman.

Eric Johnson of the Mississippi Bureau of Investigation was allowed to testify during trial about Bennett's activities in Mississippi. Despite Bennett's argument the evidence of his flight and assumed identity isn't allowed under Indiana Evidence Rule 404(b), it is admissible because it provides evidence of the charged offenses. Evidence simply to show a person commits crimes, but not the specific crimes for which the defendant is on trial, is to be excluded under 404(b).

Bennett also argued his three convictions of felony child molestation violated the double jeopardy provisions of the Indiana Constitution. He claimed evidence used to support one count of child molestation was used by the jury to convict him of another count. His daughter testified about a specific molestation incident that occurred in the evening of April 2, 2003, which was charged as Count XX; Count V alleged that he committed fondling or touching against his daughter sometime between 1998 and 2003, on which he the jury convicted him. The time frame of Count XX falls within the same time frame of Count V, so Bennett failed to prove the jury used the same evidentiary facts to establish the essential elements of more than one offense, wrote Senior Judge Hoffman.

The appellate court affirmed Bennett's sentence wasn't inappropriate and adjusted it, finding the trial court incorrectly tallied Bennett's aggregate sentence. The trial court sentenced him to a term of two years for each child exploitation conviction, a term of seven years for two of the child molestation convictions, and a term of six years for the third child molestation conviction; the trial court ordered he serve 20 years executed with five years suspended to probation, but his sentence should be 20 years executed with four years suspended to probation, wrote Senior Judge Hoffman.
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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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