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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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