Indiana Court Decisions: Dec. 1-14, 2022

Indiana Supreme Court

Dec. 13

Marquis David Young v. State of Indiana

22S-CR-306

Justices reinstate murder conviction in Gary shooting based on ‘whole picture of the evidence

The Indiana Supreme Court has reinstated a man’s murder and attempted murder convictions related to a 2020 fatal shooting in Gary, rejecting the defendant’s evidentiary challenges and finding that “the whole picture of the evidence” supports the convictions.

Justice Christopher Goff wrote for the unanimous court, which affirmed Marquis David Young’s convictions in Marquis David Young v. State of Indiana, 22S-CR-306. The Court of Appeals of Indiana had previously reversed his convictions.

The case began at 11:40 p.m. on May 3, 2020, at the gas station on the corner of 45th Avenue and Broadway in Gary. Young — wearing a white shirt and shoes and dark coat, pants and cap — was seen on video smoking inside the gas station store before getting into his car and driving away, passing another car with Dion Clayton, Virgil King and Ajee Spence inside.

About two minutes after Young drove away, surveillance footage captured a person near an alleyway across the street from the gas station. The person in the video crossed 45th Avenue, ran into the gas station lot and fired multiple shots before disappearing from view.

Clayton and King were each hit, and Clayton was found dead two blocks away.

As police investigated the shooting, they obtained surveillance footage showing a person in the alleyway tossing a lit object onto the ground, then running toward 45th Avenue around the time of the shootings. A search of the alley two days later recovered a cigarette from the immediate area where the lit object seen in the footage had fallen.

Meanwhile, law enforcement obtained an anonymous tip about Young, whose DNA was found on the cigarette. Police also learned that Young had searched for videos on disassembling and cleaning a Glock .40 caliber pistol in the weeks immediately after the shooting — the same caliber of bullets that were found at the scene. Also, Young’s cellphone location data had been turned off at the time of the shootings.

Young was ultimately charged with and convicted of murder as to Clayton and attempted murder as to King and Spence. During his trial, the state had argued that “the diverse pieces of evidence meshed into a coherent picture” showing Young was the shooter.

But on appeal, Young argued the evidence was not sufficient to prove beyond a reasonable doubt that he was the shooter. The Court of Appeals agreed and reversed the convictions in May, with the majority finding the state failed to present “substantial evidence of probative value” to support the convictions.

But COA Judge Terry Crone dissented, writing that the jury was entitled to resolve conflicts in the evidence. He also opined that there was probative evidence to support the guilty verdicts.

After granting transfer, the Supreme Court looked to Crone’s dissent in reinstating Young’s convictions.

“We reiterate the point by Judge Crone, dissenting in the Court of Appeals, that the evidence of guilt reviewed on appeal ‘need not overcome every reasonable hypothesis of innocence’ to pass muster,” Justice Christopher Goff wrote for the high court. “… It is sufficient that a reasonable jury could have inferred that the defendant committed the crimes charged. We leave the weighing of all the evidence and resolution of conflicts in it to the jury.

“Because a reasonable inference that Young was guilty as charged may be drawn from the whole picture of the evidence in this case,” Goff wrote, “the judgment of the trial court is affirmed.”

Goff acknowledged there was “no direct evidence identifying (Young) as the shooter.” But pointing to Kriner v. State, 699 N.E.2d 659 (Ind. 1998), the court found that “the pieces of evidence before us here fit together into a coherent whole that incriminates the defendant.”

That evidence, Goff wrote, included video of Young at the gas station just minutes before the shooting, video of him smoking, the surveillance footage from the alleyway and the cigarette butt from the alley. The justice also pointed to surveillance footage showing the shooter wearing a light-colored shirt, dark pants and white shoes, as well as the connection between the bullets found at the scene and Young’s internet search history.

“To summarize, the jury could have reasonably inferred that Young spotted the victims at the gas station, drove somewhere nearby with alleyway access, tossed his cigarette in the alleyway, ran to the gas station to carry out the shootings, walked back up the alleyway to get away, and later looked up how to clean the weapon he had used,” Goff wrote. “His deactivated location data suggested he was concealing his activity. No single ‘smoking gun’ was presented, but we cannot say that a reasonable factfinder was unable to draw the conclusion that Young was guilty.”

Still, Young maintained the evidence left room for reasonable doubt. He pointed to three alleged failures of proof: uncertainty as to whether the cigarette collected from the alley was the same one seen in the video; differences in his appearance and the appearance of the person seen on the video; and an apparent inconsistency in two videos placing him both at the gas station and in the alley at the same time.

The high court ultimately deferred to the jury.

“We agree that the jury might have derived a reasonable doubt from the identified problems with the evidence,” Goff wrote. “But the issues surrounding this evidence presented debatable questions of fact that the jury could reasonably have determined either for or against the defense.

“And, applying our standard of review, we may not substitute our weighing of the evidence for that of the jury,” the justice continued. “Nor will we divided and conquer the evidence by interpreting each piece individually in the defendant’s favor, rather than considering the composite picture and drawing reasonable inferences in support of the verdict.”

Court of Appeals of Indiana

Dec. 1

Courtney Elizabeth Crabtree v. State of Indiana

21A-CR-2752

Dog sniff outside hotel room did not violate Indiana Constitution

Although precedent holds that law enforcement needs “reasonable suspicion” to conduct dog sniffs at the front door of private residences, the Court of Appeals of Indiana has found that a dog sniff in a hotel walkway did not violate the Indiana Constitution’s protection against unreasonable search or seizure.

Judge Elizabeth Tavitas went further in a concurrence, arguing a dog sniff of a hotel’s common area is not a search or seizure at all.

The issue arose when Courtney Crabtree was charged with multiple drug and firearm offenses after Plainfield police officers searched the hotel room where she was staying and found cocaine, methamphetamine and four oxycodone pills.

The police became suspicious while patrolling the parking lot of the local hotel, which is in a high-crime area. They noticed a truck with a temporary paper license plate showing a VIN that did not match the VIN on the vehicle. The contents of the truck — which included a ski mask, a knife and latex gloves — also raised concerns.

A dog sniff of the truck alerted the officers to the odor of narcotics. Officers linked the truck to Crabtree after multiple residents of the hotel reported the truck was driven by a guy with facial tattoos, and a hotel employee confirmed Room 233 was registered to Crabtree, who was staying with a man with facial tattoos.

The officers then conducted a dog sniff of the hotel’s upstairs outdoor walkway, and the dog alerted to Room 233. The police knocked and when Crabtree opened the door, they entered and saw a bong. At that point, they applied for and obtained a search warrant.

Crabtree filed a motion to suppress the evidence, arguing the drugs were the product of an unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution.

The Hendricks Superior Court denied the motion, finding the police had “a reasonable suspicion for a free air K-9 sniff” outside Crabtree’s room.

Crabtree filed an interlocutory appeal, limiting her argument to the Indiana Constitution. She raised three arguments: the dog sniff of the hotel room door violated Article 1, Section 11; the officers’ warrantless entry into the hotel room violated Article 1, Section 11; and without illegally obtained evidence, the search warrant for the hotel room was not support by sufficient probable cause and any evidence obtained should thus be excluded.

In Courtney Elizabeth Crabtree v. State of Indiana, 21A-CR-2752, the Court of Appeals affirmed. The appellate panel agreed the warrantless entry violated the Indiana Constitution but held the later search was conducted under a search warrant that was supported by “sufficient legally obtained information.”

Crabtree cited Hoop v. State, 909 N.E.2d 463 (Ind. Ct. App. 2009), reh’g denied, trans. denied, but the Court of Appeals found that case distinguishable.

Also, even though Harper v. State, 963 N.E.2d 653 (Ind. Ct. App. 2012), trans. denied, held the inside of a hotel room is akin to a home for purposes of Article 1, Section 11, the appellate court here did not see the constitutional protection as extending to a hotel’s exterior walkway.

Consequently, the Court of Appeals found a “Terry-level reasonable suspicion” is not an “absolute necessity” for a dog sniff of a hotel room door.

Looking to Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), the Court of Appeals balanced the three factors of suspicion, intrusion and needs, then found the search of Crabtree’s hotel room was reasonable.

The officers’ investigation of the truck led them to conduct a dog sniff that was positive for drugs. Subsequently, they were able to connect the truck to Crabtree. Thus, the officers had “at least a moderate degree of suspicion” about Crabtree’s hotel room.

“As for law enforcement needs, officers needed to continue pursuing their investigation, as at this point they were reasonably certain criminal activity was occurring,” Judge Nancy Vaidik wrote. “So while the degree of suspicion and extent of law enforcement needs here were not the highest possible, we believe they were sufficient to conclude the dog sniff was reasonable, especially considering the low degree of intrusion.

“The trial court did not err in determining the dog sniff of the hotel-room door did not violate Article 1, Section 11,” Vaidik concluded.

Tavitas wrote separately, concurring with the result.

The jurist argued the dog sniff in the common area of a hotel was not a search under Article 1, Section 11. She supported her point by citing Blankenship v. State, 5 N.E.3d 779 (Ind. Ct. App. 2014).

Blankenship presented a similar situation of a dog sniff in the hallway of a hotel, but the Court of Appeals found no violation of the defendant’s rights under Article 1, Section 11.

“The search of a hotel common area, as opposed to the curtilage of a private home, involves a completely different set of expectations and interests,” Tavitas wrote of Crabtree’s appeal. “Anyone can typically access a hotel common area. Hotel customers, their guests, and hotel employees routinely travel hotel common areas. Accordingly, a dog sniff of a hotel hallway is a significantly less-intrusive activity than a dog sniff of the front door of a private residence.”

__________

Dec. 6

Deon Willford v. State of Indiana

21A-XP-2426

IU McKinney Civil Practice Clinic helps secure COA reversal in expungement case

With the assistance of a group of Indianapolis law students, a man convicted of felony battery can continue to pursue expungement after the Court of Appeals of Indiana reversed the denial of his expungement petition.

After a February 2007 bench trial, Deon Willford was convicted of C felony battery and Class A misdemeanor failure to stop at the scene of a personal injury accident.

Wilford filed a petition to expunge the battery conviction in February 2021, but the Marion Superior Court denied the motion, determining that, without consent from the state, Willford was not entitled to relief.

On appeal, the Court of Appeals examined Indiana Code §§ 35-38-9-4 and-5. Also, the Indiana University Robert H. McKinney School of Law Civil Practice Clinic, appearing as amicus curiae for Willford, cited Noble v. State, 734 N.E.2d 1119 (Ind. Ct. App. 2000).

Senior Judge Randall Shepard wrote that the crux of the case was whether the felony of which Willford was convicted was a felony that resulted in serious bodily injury to another person. Answering that question negatively, the COA reversed and remanded.

“On request from this Court, the trial court reviewed the evidence from the expungement hearing and issued a revised order,” Shepard wrote. “It states the court ‘finds no indication from the available record that serious bodily injury was proven’ at Willford’s trial.

“While the expungement statutes do not expressly place the burden of proof with the petitioner, we have consistently held that the petitioner bears the burden of proof when requesting the expungement of his record,” Shepard continued. “… Thus, it follows that in cases like this one, once the State raises the issue of its consent to an expungement, the defendant must persuade the court that the exceptions of Section 35-38-9-4(b) do not apply.

“As disclosed by the trial court’s revised order, Willford’s battery conviction did not result in serious bodily injury and thus the exception set forth in Section 35-38-9-4(b)(3) does not apply,” Shepard concluded. “Accordingly, he may proceed with his petition to expunge under Section 35-38- 9-4(e).”

The case of Deon Willford v. State of Indiana, 21A-XP-2426, was thus remanded for reconsideration on the merits.

__________

Dec. 7

Robert Lawson v. State of Indiana

22A-CR-448

Misconduct conviction upheld for IMPD officer who hit Shortridge student

An Indianapolis Metropolitan Police Department officer who hit a Shortridge High School student in the face has lost his bid to overturn his felony conviction after the Court of Appeals of Indiana found the officer’s inclusion of a false statement in his report was sufficient evidence to support the jury’s guilty verdict.

IMPD officer Robert Lawson was charged after he hit a male student, A.W. Lawson had been dispatched to Shortridge following a large fight at the school and was among the officers escorting A.W. outside to be released into the custody of his aunt.

However, A.W.’s aunt began to shout and berate the officers. Then, according to court documents, A.W. walked toward Lawson, pulled up his pants and appeared to get into a fighting stance. Lawson responded by striking A.W. in the face.

In the probable cause affidavit Lawson prepared after the incident, he stated that officer Marzetta Jenkins said she saw A.W. “swing his fist at Officer Lawson a split second before Officer Lawson thew the palm strike, however [A.W.] did not make contact.”

But at trial, Jenkins testified she told Lawson that it looked as if A.W. was about to swing. She did not tell him she saw the teenager throw a punch, she said.

Lawson was subsequently found guilty of perjury, a Level 6 felony; false informing, a Class B misdemeanor; and official misconduct, a Level 6 felony.

The Marion Superior Court later vacated the perjury and false informing convictions due to double jeopardy concerns. Lawson was sentenced to 365 days with 363 days suspended to probation.

Before the Court of Appeals, Lawson argued the trial court abused is discretion by denying his motions challenging the sufficiency of the evidence. He had filed two Indiana Trial Rule 50 motions for judgment on the evidence and the Marion Superior Court denied both.

The Court of Appeals affirmed in Robert Lawson v. State of Indiana, 22A-CR-448, finding the evidence was sufficient to sustain Lawson’s convictions.

In a footnote, the Court of Appeals stated Lawson’s conviction of official misconduct was based on his convictions of perjury and false informing. Because dismissal of his perjury and false informing convictions would remove the factual ground upon which the jury found him guilty of official misconduct, the appellate panel explained it would “address only his perjury and false informing convictions.”

Lawson argued that Jenkins’ statement was not material to the case to support his perjury conviction and that there was no evidence he knew her statement was false, which was needed to support the false informing conviction.

The Court of Appeals was not convinced.

Looking at the perjury charge, the appellate panel held Lawson needed Jenkins’ statement to support the disorderly conduct charge filed against A.W. The panel noted Jenkins’ statement that A.W. threw a punch would have been a clear indication that the juvenile “engaged in fighting or in tumultuous conduct” needed to satisfy Indiana Code § 35-45-1-3(A)(1).

Also, the appellate court found sufficient evidence for the false informing charge. The Court of Appeals rebuffed Lawson’s contention that he did not know the statement from Jenkins was not true, noting the probable cause affidavit did not include any indication that he did not believe Jenkins.

“Not only did Officer Lawson witness the event firsthand, but he was also standing face to face a few feet away from A.W. seconds prior to striking him,” Judge Margret Robb wrote for the court. “If A.W. had thrown a punch, it seems unlikely that Officer Lawson would not have seen it or that A.W. would not have made any contact with Officer Lawson.”

Further, the Court of Appeals disagreed with Lawson’s argument that the entire record does not contain sufficient evidence that he knowingly lied by including Jenkins’ statement in his reports.

“Here, Officer Lawson experienced the event firsthand and was feet away from A.W. but claims Officer Jenkins stated she saw A.W. throw a punch,” Robb wrote. “A reasonable juror could determine that Officer Lawson knew that a punch was not thrown and ‘knowingly’ included a false statement in his probable cause affidavit.

“Further, Officer Lawson’s argument that he did not include a false statement ‘knowingly’ is essentially a request for this court to reweigh the evidence and judge his credibility, neither of which we may do in conducting our review,” Robb concluded, citing Smith v. State, 660 N.E.2d, 357, 358 (Ind. Ct. App. 1996).

Separately, Lawson argued the trial court erred by refusing to give his four proposed jury instructions.

While the proposed instructions were correct statements of law and were supported by the evidence, Robb wrote, “Officer Lawson’s proposed jury instructions were sufficiently covered by other instructions.”

In addition to the state court criminal charges, Lawson was sued in federal court alongside Jenkins and officer Robert Carter for civil rights violations related to the Shortridge incident. Lawson was dismissed as a defendant in that case in February 2020, and final judgment in favor of Jenkins and Carter was entered in September 2021.

__________

Dec. 8

Avis Deforest White v. State of Indiana

22A-CR-978

Split COA orders suppression of evidence from traffic stop based on ‘inactive’ registration

A man who was pulled over for having an “inactive” car registration has convinced a split Court of Appeals of Indiana panel that evidence stemming from the stop should be suppressed.

In October 2020, Brownsburg Police Department Cpl. Christopher Nelson was on patrol when he submitted an inquiry to the Bureau of Motor Vehicles regarding a car’s registration. The BMV record screen showed the registration’s status was “inactive,” but it also showed that the expiration date for the license number was Dec. 7, 2020.

On the basis of the “inactive” registration status, Nelson initiated a traffic stop of the car, driven by Avis Deforest White.

As a result of the traffic stop, the state charged White with Level 4 felony possession of cocaine; Level 6 felony theft of a firearm; Level 6 felony obstruction of justice; Class A misdemeanor driving while suspended; Class B misdemeanor possession of marijuana; and an infraction relating to the car’s registration.

White filed a motion to suppress, and during a hearing Nelson testified that he stopped the car due to the inactive registration.

But under cross-examination, Nelson conceded the registration for White’s car was not expired. He further testified that the car did not “currently have an active registration[,]” but that he did not know what the “inactive” designation actually meant.

Ultimately, the Hendricks Superior Court denied White’s motion to suppress and an appeal ensued.

In reversing, the COA majority found that Nelson conflated the word “inactive” with “expired.”

“We have previously recognized that ‘reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition,'” Williams v. State, 28 N.E.3d 293, 294 (Ind. Ct. App. 2015) … ,” Judge Peter Foley, who was joined by Judge Paul Mathias in the majority, wrote. “Williams represented a turning point in our jurisprudence on this matter. Previously, we held that an officer’s good-faith but inaccurate belief about what constitutes an infraction was insufficient to establish reasonable suspicion.

“… Williams, however, is materially distinguishable from the instant case,” Foley continued. “… Here we are not engaged with the question of whether a statute is ambiguous, such that Corporal Nelson’s misunderstanding of the statute could be reasonable. There simply is no statute prohibiting an ‘inactive’ registration.”

The majority found that whether the registration was “inactive” does not bear on the question of reasonable suspicion.

“We cannot conclude that — as an objective matter — a reasonable officer would seek to enforce laws that do not exist,” Foley wrote. “…. The Supreme Court has not determined that reasonable suspicion can rest on whether a legal prohibition exists at all. Accordingly, we reverse the trial court’s denial of White’s motion to suppress.”

In a dissent, Judge Margret Robb wrote she would’ve affirmed the denial of the motion to suppress because she does not believe Nelson necessarily conflated the terms “inactive” and “expired,” or necessarily relied on Indiana Code § 9-18.1-11-2(c) as a basis for the stop.

“Considering the totality of the circumstances, I would hold it was objectively reasonable for Corporal Nelson to believe that any return other than ‘active’ indicated that something could be amiss with White’s registration and therefore he had reasonable suspicion to stop White’s vehicle,” Robb wrote.

The case is Avis Deforest White v. State of Indiana, 22A-CR-978.

__________

Dec. 12

Thomas M. Shoaff v. First Merchants Bank

22A-PL-514

‘Veteran attorney’ guarantor still on hook for loan despite multiple modifications to agreement

A “veteran attorney” who signed as the guarantor of a $600,000 loan is obligated to cover the debt after the borrower defaulted and the Court of Appeals of Indiana found modifications to the loan agreement did not alter his financial responsibility.

Thomas Shoaff signed as a guarantor when a borrower, unidentified in court documents, secured a $600,000 loan from IAB Financial Bank in 2014. Over five years, the borrower’s obligation was modified multiple times. Despite Shoaff waiving notice, he was contacted about the many alterations as a courtesy.

The note matured on March 15, 2019. When the borrower failed to pay and was in default, First Merchants Bank — which had merged with IAB in July 2017 — filed a complaint in May 2019. The Allen Superior Court granted the bank’s motion for summary judgment and entered damages for $859,927.49.

Andrea Baumer had also signed as a guarantor but, along with Innovative Insurance Partners LLC, was dropped from the original lawsuit.

Shoaff successfully filed a motion to correct error, arguing the trial court failed to give him the opportunity to respond to the bank’s claim for damages.

The trial court entered a new damages order, finding there was a balance due and owing to First Merchants from Shoaff for $589,735.37 plus accruing interest at the “rate of $117.4005 per day through the date of entry of this Amended Judgment.” Also, the court found Shoaff owed the bank $125,166.41 for attorney fees and out-of-pocket expenses related to the default.

In Thomas M. Shoaff v. First Merchants Bank, 22A-PL-514, the Court of Appeals affirmed summary judgment in favor of First Merchants. However, the appellate court found the trial court erred in the award of interest, late fees and attorney fees.

Shoaff argued that because the original agreement that he guaranteed was “materially” altered, he is no longer responsible for damages resulting from the default.

The Court of Appeals was not convinced, finding Shoaff’s liability remained intact for “both reasons of immateriality and simple interpretation of contract.”

Namely, Shoaff is a “veteran attorney” and cannot be released from the terms of a contract because he failed to read it. Also, Shoaff was notified as the underlying debt was modified repeatedly over the course of many years, and he did not raise any objections.

“We do not think that any of the modifications to the terms of the debt and its repayment imposed fundamentally different risks on Shoaff,” Judge Peter Foley wrote for the panel. “He may end up paying more than he would have otherwise, or more than he expected to pay when he signed the Agreement.

“But those are changes in degree, not in kind,” Foley continued. “Shoaff contemplated interest, late fees, and future debts in the Agreement. He assumed those risks.”

On cross-appeal, First Merchants contended the trial court abused its discretion when it calculated the damages to which the bank was entitled.

Agreeing with that argument, the Court of Appeals found the trial court did not take into account all the variables “necessary to correctly calculate the loss suffered by First Merchants.” The interest rate for the loan fluctuated multiple times and the calculation of late fees did not consider the complexities created by the amount of unpaid debt and previous defaults, the court found.

In addition, the appellate court held the trial court’s “unexplained decision” to award attorney fees up until a certain date renders the award “unreasonable.”

The Court of Appeals thus reserved and remanded the trial court’s damages award.

The panel noted for the interest and late fees, the trial court may have to hold additional hearings to determine which factors must properly be accounted for and how to correctly calculate the damages.

Also, the appellate court ruled the trial court “should assess a reasonable amount of attorney’s fees for all services rendered in pursuit of the debt owed by Shoaff up until the date of the order granting such fees.”

__________

Dec. 13

N.H. v. State of Indiana

22A-XP-1026

Trial court erred by striking ‘proper person’ language from expungement order

A trial judge must reissue its expungement order for a defendant who successfully argued that the court’s original order improperly omitted statutory language, the Court of Appeals of Indiana has ruled.

N.H. filed a petition for expungement of his criminal convictions and arrest records in Elkhart County in November 2021.

In the proposed order, N.H. included a verbatim quotation of Indiana Code § 35-38-9-10(c), which provides that “the civil rights of a person whose conviction has been expunged shall be fully restored, including the right to vote, to hold public office, to be a proper person under IC 35-47-1-7(2), and to serve as a juror.” The “proper person” language would become the center of the instant appeal.

At a hearing in February, the Elkhart Superior Court stated it would use the proposed order but would strike the “proper person” language. The judge explained, “I generally don’t have all the information necessary under the statute to determine whether or not [N.H. is] a proper person. So I always strike that portion.”

With the trial court’s permission, N.H. submitted an amended proposed order that said, “Petitioner’s civil rights shall be fully restored, including the right to vote, to hold public office, to be a proper person under IC 35- 47-1-7(2), to the extent that any matter expunged herein previously disqualified Petitioner as a proper person, and to serve as a juror.”

Again, the trial court did not accept the amended proposed order, finding that “the proper person is still in paragraph 7 with what attempts to be qualification … [and] it falls short.”

N.H. then submitted another proposed order, this time stating, “Petitioner’s civil rights shall be fully restored as set forth in Ind. Code § 35-38-9-10(c),” but that order was also declined.

Finally, in March, the trial court granted N.H.’s petition for expungement, using his initial proposed order but whiting out the “proper person” language.

N.H.’s subsequent motion to correct error was then denied, with the trial court concluding, “There are fourteen (14) criteria that must be met in order for someone to be a proper person as defined under IC 35-47-1-7. Most of those conditions would not be known by a Court that is simply considering a Petition for Expungement. Not having a felony conviction is merely one (1) of the fourteen (14).

“Accordingly, based on the breadth of the term ‘proper person’ and its implications as applied in IC 35-47-2-3, only in the event that a Petitioner has provided evidence and proven that he or she meets all the criteria set out in IC 35-47-1-7(1)-(14) and is indeed a proper person as that term is defined in every subsection, not just subsection (2), would including such language in an Order of expungement be appropriate,” the court concluded.

On appeal, N.H. argued the trial court’s rationale for striking the “proper person” language from its expungement order was contrary to law. The appellate court agreed.

“The inclusion of the phrase does not require that the trial court make a determination as to whether a defendant is a proper person pursuant to the entirety of Indiana Code section 35-47-1-7, it merely acknowledges that a defendant’s previous convictions, now expunged, no longer prevent him from being determined to be a proper person,” Judge Margret Robb wrote. “Interpreting Indiana Code section 35-38-9-10(c) to be a referendum on all fourteen subsections of Indiana Code section 35-47-1-7 when it explicitly includes only subsection 7(2) would be illogical.”

Further, Robb noted the expungement process only covers the convictions listed in the petition, and only convictions in that county.

“…. (I)f the trial court did not have sufficient information regarding the proper person language, then it similarly did not have sufficient information to declare the remaining rights restored because they too could be affected by other convictions or circumstances that fall outside the purview of the expungement order,” Robb wrote. “Again, this would be an illogical rendering of the statute. … The inclusion of language from Indiana Code section 35-38-9-10(c) in an expungement order simply denotes that the convictions expunged in the order no longer preclude a defendant from exercising the enumerated rights. It does not blindly restore rights to a defendant.”

The case of N.H. v. State of Indiana, 22A-XP-1026, was thus remanded for the trial court to reissue its order and either include the “proper person” language or omit the relevant paragraph entirely.•

Please enable JavaScript to view this content.

{{ articles_remaining }}
Free {{ article_text }} Remaining
{{ articles_remaining }}
Free {{ article_text }} Remaining Article limit resets on
{{ count_down }}