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. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  2. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  3. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  4. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  5. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

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