The Indiana Supreme Court upheld the denial of a man’s petition for post-conviction relief claiming ineffective assistance of counsel. In doing so, the justices addressed the use and language of a jury instruction and rewrote it to make it clearer.

In Kevin L. Hampton v. State of Indiana, No. 84S04-1103-PC-161, Kevin Hampton appealed the denial of his claim of ineffective assistance of appellate counsel. Hampton was convicted of murder, rape and criminal deviate conduct; his convictions and sentences were upheld by the Indiana Court of Appeals. He then sought post-conviction relief, claiming his appellate attorney rendered ineffective assistance by not asserting on direct appeal that the trial court erred in refusing to instruct the jury "[w]here proof of guilt is by circumstantial evidence only, it must be so conclusive in character and point so surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence."

Hampton argued that the DNA evidence presented – collected from vaginal swabs and the victim’s tank top – was not direct, but circumstantial evidence.

Before addressing Hampton’s claims, the justices first looked at when to give the “reasonable theory of innocence” instruction. Writing for the court, Justice Brent Dickson said that it is appropriate that juries receive, where appropriate, a “reasonable theory of innocence” instruction in addition to the standard reasonable doubt instruction. The justices decided the current advisement needed reformulated.

“We thus hold that, when the trial court determines that the defendant's conduct required for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence,” he wrote.

The justices then turned to the issue of whether DNA evidence is direct or circumstantial evidence – an issue that had not been specifically addressed by the Indiana Supreme Court or in other states.

“Application of our analysis today leads us to conclude that the DNA evidence in the present case should be considered as circumstantial and not direct evidence of the defendant's conduct comprising the physical components of each of the charged criminal offenses (actus reus). On the other hand, such focus upon actus reus has not been the prevailing basis of prior Indiana case law, which had usually found the ‘reasonable theory of innocence’ instruction properly rejected when any one element of a criminal offense has been proven by direct evidence,” Dickson wrote.

“Under such line of authority, the rejection of the instruction would not have been error in the present case because of the direct evidence in this case proving that the victim was raped, murdered, and criminally sexually battered by someone, or the DNA direct evidence identifying the defendant as having a prior involvement with the victim. The existing state of the law could have led the defendant's appellate counsel to conclude that there was little if any merit in pursuing on appeal the refusal of the ‘reasonable theory of innocence’ instruction.”