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. Freedom From Religion Foundation: If you really want to be free from religion, don't go to the Christmas Play or the Christmas Pageant or the Christmas Parade. Anything with "Christ" or Saint...fill in the blank...would be off limits to you. Then leave the rest of us ALONE!

  2. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  3. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  4. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  5. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon