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

Back to TopCommentsE-mailPrintBookmark and Share

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!

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.