The e-formant at Gibson Law Office

The Indiana Court of Appeals has reversed a Tippecanoe County man's conviction for child molesting, because the trial court improperly admitted a forensic video statement of the alleged victim. In child molesting cases, it is routine for police to have the accuser participate in a forensic interview and describe the allegations. The interview is commonly conducted by an investigator from the prosecutor's office, and is designed to elicit evidence to use in a child molesting prosecution. The accuser's statements are not made under oath or challenged by cross-examination.

Indiana law allows these videos to be admitted at trial, only when a psychiatrist or other medical expert testifies at a hearing that the accuser will suffer serious emotional harm by testifying at trial. In the Tippecanoe County child molesting trial referenced above, a forensic videotaped interview was admitted into evidence with no finding that the accuser would suffer harm by testifying. The defendant was found guilty at trial, based on evidence solely from the video. The Indiana Court of Appeals reversed the conviction.

Cross-examination at trial and in depositions is critical in exposing inconsistent statements, motives to lie, and other evidence of innocence in child molesting and other sex crimes cases. If you are accused of child molesting or some other sex crime, it is important to retain an experienced criminal attorney with jury trial experience. There are specific rules of evidence that control what may be admitted at trial. Forensic interviews in child molesting cases are designed to make the accused appear guilty. An experienced criminal attorney can challenge the child molesting allegations in depositions and at trial. If you are accused of child molesting or a sex crime, it is important to retain an experienced criminal attorney immediately. Crucial things can happen early in a case that may have a big impact on the outcome.

False child molesting allegations happen. That is a fact. It is also true that when a person is accused of child molesting, there is an overwhelming presumption by police and investigators that the accused person is guilty. Child molesting investigations often begin with a forensic interview of the accusing child. The forensic interviewer is typically someone who works regularly with police, child protective services, and the prosecutor's office and is pre-disposed to believe that child molesting occurred. The interview is conducted in a way to develop evidence for a prosecution. During the forensic interview, the accuser's story is not challenged.

 

Police then often contact the person accused of child molesting and seek to interrogate them. They attempt to get the suspect to submit to a polygraph examination to "clear their name". Before the interrogation begins, they request that the accused person sign paperwork waiving their right to an attorney. This process is designed to make the accused person nervous, off-guard, and vulnerable to police interrogation techniques.

Police investigations of child molesting allegations never include taking a polygraph examination of the accuser. If polygraph examinations are not reliable to judge the accuser's story, then clearly they are not reliable to judge someone accused of child molesting. If you are accused of child molesting, or any sex crime, you should never speak to the police without your attorney present.

False child molesting allegations are made for a variety of reasons. Motives to lie about child molesting can be exposed during depositions. However, there is nothing to be gained by a person falsely accused of child molesting, by submitting to aggressive police interrogation and a polygraph examination.  If you are accused or child molesting, or sexual misconduct with a minor, you should contact an experienced criminal attorney immediately. Police often make an aggressive attempt to interrogate child molesting suspects, before they have retained an attorney.

Gibson Law Office is located at 133 N 4th Street, Suite 73, Lafayette, IN 47901. Attorney Brett Gibson has a statewide practice and has won acquittal on numerous child molesting counts in cases hours from Lafayette. 

A new Indiana law provides that certain 8 year-old Class D felony convictions can be sealed from public view. In a competitive job market, a criminal background check that reveals a felony conviction for theft or receiving stolen property can eliminate opportunity. However, a new Indiana law became effective on July 1, 2011 that would allow theft, receiving stolen property, and other nonviolent Class D felony conviction records to be sealed and removed from public view.

The new law applies to misdemeanor and Class D felony convictions that did not result in injury to a person. Class D felonies include theft, receiving stolen property, operating while intoxicated with a prior, possession of marijuana over 30 grams, possession of a controlled substance, and fraud. A person becomes eligible to seal their criminal record 8 years after they have completed the obligations of their sentence. To seal the old criminal record, the person must not have committed a new felony offense since completing their sentence.

If you were convicted of a Class D felony and 8 years have passed since you completed your sentence, this new Indiana law could benefit you greatly. Class D felony convictions can eliminate career advancement, new job opportunities, community positions, and harm your reputation. Old mistakes no longer have to harm your present and future life.

To seal your old criminal records in Indiana, the first step is to confirm that you are eligible under the new law. Contact attorney Brett Gibson for a free initial consultation or phone conference at 765-742-8440 or by e-mail at bg@bbgibson.com. Brett Gibson is a Lafayette, Indiana attorney with a statewide practice. Gibson Law Office is located at 133 N 4th Street, Suite 73, Lafayette, IN 47901. 

Indiana's expungement statute is very limited and primarily only provides relief to persons who were arrested, but not charged with a crime. However, a new Indiana law took effect on July 1, 2011 which allows a person to petition a court to restrict access to a person's criminal record. The new law falls short of expungement ( i.e. police will still be able to see the records). However, if a court orders a person's records to be restricted under this law, the person may legally state on an application for employment that the person has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records.

The new law applies to people who were charged with crimes, but were not convicted due to charges being dismissed, being acquitted at trial, or who were convicted of a crime and the conviction was subsequently vacated. For persons convicted of crimes, criminal records can also be sealed in misdemeanor or Class D felony cases that did not result in injury to a person. A convicted person becomes eligible eight (8) years after they have completed all obligations of their sentence. Many states have expungement statutes that allow for removal of convictions.  A person not convicted of a criminal charge becomes eligible in 30 days or one year, depending on whether there was a dismissal, acquittal, or vacation of a conviction.

Indiana's limited expungement statute has placed those convicted of crimes at a disadvantage in the job market. This new law allowing criminal convictions to be sealed will dramatically help people in search of jobs, promotions, and community positions who have been disadvantaged by misdemeanor or felony crimes that could not be expunged.

Many people convicted of crimes in Indiana have sought expungement of their criminal records, only to find out they were not eligible for expungement.  If you have been convicted of a misdemeanor or Class D felony in Indiana, and eight (8) years have passed since you completed your sentence, or you have been acquitted at trial or had criminal charges dismissed, you may be eligible to restrict access to your criminal history. Contact attorney Brett Gibson for a free initial consultation or phone conference at 765-742-8440 or by e-mail at bg@bbgibson.com. Brett Gibson is a Lafayette, Indiana attorney with a statewide practice. Gibson Law Office is located at 133 N 4th Street, Suite 73, Lafayette, IN 47901. 

A man's conviction for sexual battery was reversed by the Indiana Court of Appeals. The man was accused of walking up behind an unsuspecting woman and groping her in the thighs and crotch. The woman immediately turned around and the man ran away. He was arrested and charged with sexual battery, a Class D felony. He was convicted at trial of sexual battery, a Class D felony. He then appealed the conviction arguing that he had not compelled the woman to submit to a sexual touching, as required by the sexual battery statute. 

The Indiana sexual battery statute provides that a person commits sexual battery who, with intent to arouse or satisfy the person's sexual desires or the sexual desires of another person, touches another person, when that person is compelled to submit to the touching by force or the imminent threat to use force.  Evidence that a victim did not voluntarily consent to a touching does not, in itself, support the conclusion that the defendant compelled the victim to submit to the touching by force or the threat of force. 

The evidence presented at trial was that the alleged victim was unsuspecting and did not have the opportunity to consent or not consent to the touching. She immediately turned around and the man ran away. The Indiana Court of Appeals determined that although the touching could support a misdemeanor battery conviction, there was insufficient evidence to convict the man of sexual battery. The Court found that the sexual battery statute required the State to prove that the woman had been compelled to submit by force to the touching. The Court found that the definition of sexual battery in Indiana requires more than an unwanted sexual touching. There must be evidence that the victim was compelled to submit by force.

Sexual battery is a sex crime in Indiana, which means a conviction requires registering as a sex offender. Battery is a Class B misdemeanor and not a sex crime. If you are accused of sexual battery, you should contact an experienced Indiana criminal attorney immediately. You may have a defense to a charge of sexual battery, if the State cannot prove that he alleged victim was compelled to submit to a sexual touching. 

The Indiana Court of Appeals has reversed a man's conviction for sexual battery, finding that kissing a sleeping victim does not meet the definition of sexual battery in Indiana. In this case a woman and two men had been watching television. The two men went to purchase more alcohol and the woman fell asleep while they were gone. She awoke to one of the men kissing and licking her face. The man was arrested and charged with sexual battery, a Class D felony.  He was convicted at trial and appealed.

The Indiana Court of Appeals reversed the man's conviction for sexual battery, finding that a sleeping person was not mentally disabled or deficient, as required by the Indiana sexual battery statute. Sexual battery is a sex crime in Indiana, which requires a convicted person to register as a sex offender. To convict a person of sexual battery, the State must prove that a person, with intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person, touches another person when that person is (1) compelled to submit to the touching by force or the imminent threat of force or (2) so mentally disabled or deficient that consent to the touching cannot be given.  In this case, the State argued that the sleeping woman was "so mentally disabled or deficient that consent could not be given", because she could not consent if she was asleep. The Court of Appeals noted that lack of consent is not an element of sexual battery; it is the inability to give consent that is required to show mental disability or deficiency.  The Court held that sleep is not the equivalent to a mental disability for purposes of the sexual battery statute and reversed the man's conviction.

Sexual battery is a Class D felony and carries a penalty of 6 months to 3 years in prison. Sexual battery is also a sex crime in Indiana which requires one convicted of the offense to register as a sex offender. Certain acts that involve a sex-related touching are not sufficient to convict someone of sexual battery. If you are charged with sexual battery, you should contact an experienced Indiana criminal attorney immediately.

Criminal charges for possession of marijuana in Indiana can be based on either actual or constructive possession of marijuana. When marijuana is found in a person's home, a resident can be found in constructive possession of marijuana when the State proves that the defendant had both the intent, and the capability, to maintain dominion and control over the marijuana.  However, the presence of marijuana in someone's home, by itself, is not enough for the State to prove constructive possession.

If marijuana is found during a search of a house or apartment where multiple people live, the State still must prove actual or constructive possession to convict one of the residents of a crime. This is a common situation when college students are living together and one or more of the roommates has marijuana in the home. In the absence of proof that a respective resident intended to control the marijuana, a conviction cannot be sustained for possession of marijuana.

Relevant evidence of the intent to control marijuana can include: (1) incriminating statements made by a defendant; (2) attempted flight or furtive gestures; (3) evidence of manufacturing drugs; (4) proximity of marijuana to the defendant; (5) location of marijuana within the defendant's plain view; and (6) the mingling of marijuana or contraband with other items owned by the defendant. You should never consent to a search of your home or give statements to police without a lawyer present. If police obtain a search warrant to search your residence, you should remain silent and not make any incriminating statements. If you avoid making incrimination statements, there may be insufficient evidence to convict you of possession of marijuana, even if marijuana is found in your home.

Police are trained at interrogating people and obtaining confessions. In marijuana cases, police often threaten that someone must confess or they will go to jail. If you are suspected or accused of having marijuana in your home, you should never give a statement to police without an experienced criminal attorney present. You may have a valid defense to a charge of constructive possession of marijuana. 

To revoke a defendant's probation for failing to pay financial obligations, the State must prove that the probationer had the ability to pay. The Indiana Court of Appeals has reversed a trial court's order to revoke probation, because the State failed to present evidence that the defendant had the ability to make the payments that were ordered as a term of probation. 

The Indiana Court of Appeals held that a trial court may revoke probation for failure to satisfy a financial obligation only if the State satisfies its burden to prove by a preponderance of evidence: 1) less than full payment; and 2) the probationer submitted less than full payment recklessly, knowingly, or intentionally. To prove "knowingly" the State must show by a preponderance of the evidence that the probationer was able to pay.  In the case at hand, the defendant denied that he had violated probation, despite the fact that he had not made the payments that were ordered. He presented evidence that health problems and unemployment contributed to his inability to make the ordered payments.  At the evidentiary hearing, the State failed to present evidence to establish the defendant was able to pay.

The trial court found that the defendant failed to make the ordered payments during a time in which he was employed, and revoked the defendant's entire three year sentence. The Indiana Court of Appeals ruled that despite the fact the defendant had failed to make payments during a time when he was employed, the burden of proof remained on the State to prove by a preponderance of evidence that the defendant had the ability to make the payments.

It should be noted that, a defendant who admits to violating probation by failing to meet financial obligations, waives the requirement that the State prove that the defendant had the ability to pay. If the State files a petition to revoke probation in Indiana, alleging that the defendant failed to meet financial obligations, it is important to contact an experienced Indiana criminal attorney. The petition to revoke probation may be able to be successfully defended at an evidentiary hearing. The burden of proof is on the State at an evidentiary hearing. An experienced criminal attorney may be able to successfully defend a probation violation based on failure to pay court-ordered financial obligations, by holding the State to its burden of proof.

Tippecanoe County Community Corrections user fee payments may now be paid on-line using debit or credit cards. If you are serving a Tippecanoe County Community Corrections sentence, or are contemplating a plea agreement that requires community corrections, it is important that your user fees remain current. Failing to pay fees at Tippecanoe County Community Corrections could result in rejection from community corrections and placement in jail or prison. The fees can be paid from the Tippecanoe County web site.

Community corrections refers to any of work release, house arrest, or day reporting. It is a defense to a petition to revoke probation based on failure to pay fees, that the person had an inability to pay. However, a person can be rejected by community corrections for failure to pay fees, because community corrections is an alternative to executed time served in jail or prison. If a petition to revoke probation is filed against you based on failure to pay fees, it is important to contact an experienced criminal attorney immediately. You may have a defense that the failure to pay was not voluntary. If a rejection from community corrections results from failure to pay fees, you do not have a legal right to return to community corrections and should make all efforts to pay any outstanding fees prior to requesting a hearing.

A woman's conviction for public intoxication, when she was a passenger in a vehicle, has been reversed by the Indiana Court of Appeals. This public intoxication case creates an exception to more than thirty years of case law that has held generally that a passenger in a vehicle is in a public place. This public intoxication case does not eliminate the possibility of a public intoxication charge for a passenger in a vehicle. However, the case holds that for a passenger in a vehicle to be convicted of public intoxication, the State must prove that the person actually behaved in a bothersome way, such as causing a distraction to the driver of the vehicle.

In this case, a car was pulled over because it lacked a working license plate light. A woman was asleep in the passenger's seat. The driver did not have a driver's license in possession, so the police officer inquired whether the passenger would be able to drive the vehicle. The officer then determined that the passenger was intoxicated and arrested her for public intoxication. At trial, the passenger admitted that she was too intoxicated to drive that night. She was found guilty at trial of public intoxication and filed an appeal.

Public intoxication is defined by Indiana law as being "in a public place or a place of public resort in a state of intoxication caused by... use of alcohol..." In 1966, the Indiana Supreme Court upheld the public intoxication conviction of a man who was in his running tractor-trailer cab parked alongside the highway, finding that he was in a public place. This precedent confirmed that a person inside a vehicle can be considered to be in a "public place" for purposes of the public intoxication statute. The Court of Appeals has now distinguished the 1966 case, finding that the truck driver was in a running and dangerously parked vehicle, whereas the sleeping passenger's vehicle was stopped for an equipment violation. The Court of Appeals reasoned that the policy of the public intoxication statute is to prevent intoxicated persons from bothering or threatening the safety of others in public places. Thus, the case has created a new legal rule in Indiana public intoxication cases. For a passenger in a vehicle to be convicted of public intoxication in Indiana, the State must prove that the person was not only intoxicated, but behaved in a bothersome way because of it.

To convict someone of public intoxication in Indiana, the State must prove that the person was in a public place within the meaning of the public intoxication statute. The above Court of Appeals decision has added protection to intoxicated persons riding in vehicles. If you are charged with public intoxication, when you are a passenger in a vehicle, the specific facts regarding the police encounter are critical to your defense. If you are charged with public intoxication, you should contact an experienced criminal attorney immediately. You may have a valid defense to a public intoxication charge, if you did not create a distraction to the driver.