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COA instructs trial court to vacate 2 convictions of child molestation

February 26, 2013

The Indiana Court of Appeals threw out two charges and sent a case back to the trial court after the state admitted that it did not intend to charge the defendant with four separate acts of child molestation.

Dennis Ray Smith was charged and convicted of two counts of Class A felony child molesting by sexual intercourse and two counts of Class A felony child molesting by sexual deviate conduct.

During a recorded interview with an Evansville police detective, Smith told the officer he had inappropriately touched his stepdaughter when she was 5 years old.

In Dennis Ray Smith v. State of Indiana, 82A01-1204-CR-175, Smith appealed his conviction on the grounds that his recorded statement to police should not have been admitted into evidence at trial because it was obtained in violation of his Fifth Amendment rights. He also argued that two of his convictions should be vacated because they violate Indiana’s prohibition against double jeopardy.

The COA affirmed in part, reversed in part and remanded with instructions.

The Court of Appeals affirmed the lower court’s ruling to admit the recorded statement into evidence during the trial. It found Smith made the statement voluntarily and did not make an unequivocal request for an attorney.

However, the COA disagreed with the state that Smith waived any claim about the recorded statement because he failed to make a contemporaneous objection at trial. The court found that while the defense counsel raising his objection during a bench conference was not typical, it was sufficient to alert the trial court that the defense was objecting and why.

Also, the COA remanded with instructions to vacate the two counts of Class A felony child molesting by sexual deviate conduct. The state conceded it did not intend to charge Smith with four separate acts of child molestation, saying it was pleading in the alternative when it charged Smith with two counts of engaging in sexual intercourse with a minor and with two courts of child molesting by sexual deviate conduct.


 

 

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