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COA instructs trial court to vacate 2 convictions of child molestation

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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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  1. "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! :/

  2. 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!

  3. 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.

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

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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