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. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  2. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  3. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  4. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  5. I presented my defense against discipline to the Virginia State Bar this morning and the 26-member Board of Discipline 100% rejected what Indiana has done to me, including what Ahler did. Discipline DISMISSED.

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