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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.

 

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  • 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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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