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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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