Judges affirm defendant must register as sex offender as part of probation

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A defendant who was convicted of robbery and rape, but whose rape conviction was vacated on double jeopardy concerns, can still be required to register as a sex offender as a condition of his probation, the Indiana Court of Appeals affirmed Thursday.

Daquan Whitener went to K.A.’s house in the summer 2009 at the request of K.A.’s friend Raquel Pizana to return a CD which belonged to her. Whitener, who was 17 at the time, arrived with two teenaged cousins. K.A. and her friends were drinking alcohol and hanging out, and eventually Whitener and his cousins left. K.A. and Whitener didn’t speak while he was around her, but he knew she was very intoxicated and that she didn’t own a phone.

Later that night, the three boys returned to K.A.’s home. Whitener told his cousins that K.A. told him to break in through a window because she wanted to have sex with him. She was very drunk and tried to push Whitener off during the act. The three boys left and she sought medical help the next day.

Whitener was charged with Class A felony robbery and Class B felony rape and was convicted by a jury. The trial court vacated the rape conviction because of double jeopardy concerns. Whitener was also ordered to register as a sex offender as a condition of his probation.

In Daquan Whitener v. State of Indiana, 20A04-1205-CR-254, the Court of Appeals concluded that the state presented evidence of a probative nature from which a reasonable trier of fact could find beyond a reasonable doubt that Whitener’s entry of K.A.’s home was unauthorized, so he was guilty of burglary.

It also upheld the fact that he must register as a sex offender.

“Although Whitener was convicted and sentenced on a count of burglary as a class A felony, which is not an enumerated offense under Ind. Code § 11-8-8-4.5(a) (Supp. 2007), the underlying felony he intended to commit when committing the burglary was rape, which is an enumerated offense,” Judge Elaine Brown wrote. “Moreover, we note that Whitener was found guilty of committing rape as a class B felony by the jury, and the court vacated his conviction based upon double jeopardy principles.

On cross-appeal, the state challenged whether the trial court properly declined to enter a judgment of conviction for rape based on double jeopardy principles. The state’s motion to correct was denied in May 2010 and the state did not appeal. It was only two years later when Whitener pursued a direct appeal pursuant to Ind. Post-Conviction Rule 2(1) that the state elected to raise this issue. Under these circumstances, the cross-appeal issue is untimely, Brown wrote in dismissing the appeal.



  • Registry
    I was just beginning to have faith in the Indiana Court of Appeals, then I read this crap. Now a person can be required to register as a sex offende even if they are not convicted of a sex crime! If a jury convicts a person of rape and the judge vacates the conviction, it must be held that there was no conviction. Therefore, the person should not be required to register as a sex offender and ordering him to do so is just plain stupid! This is like arresting a person because the cops saw him looking at a jewelry store and assumed he was going to rob it! He said I didn't do anything wrong! They said you looked like you wanted to rob that jewelry store and tha is conspiracy to commit robbery!

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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.