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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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