The e-formant at Gibson Law Office

Indiana Court Limits Use of Videotaped Statements in Child Molesting Cases

2011-08-03T13:59:07Z

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.

Falsely Accused of Child Molesting in Indiana: Never Submit to an Unreliable Polygraph

2011-07-18T16:32:57Z

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.

New Indiana Law Allows Some Felony Convictions to be Sealed

2011-07-17T19:44:20Z

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.

Expungement of Criminal Records in Indiana: New Law Limits Access to Criminal History

2011-07-08T18:46:49Z

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.

Sexual Battery Conviction Reversed for Indiana Man Accused of Groping

2011-06-16T19:50:58Z

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.

Indiana Court of Appeals Holds Kissing Sleeping Victim is Not Sexual Battery

2011-06-09T21:39:25Z

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.

In Indiana Constructive Possession of Marijuana Requires More Than Presence of Marijuana in Apartment

2011-06-08T19:24:47Z

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.

Court Reverses Probation Violation for Failure to Pay

2011-06-07T21:22:53Z

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

2011-04-11T14:08:37Z

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.

Public Intoxication Conviction Reversed for Vehicle Passenger

2010-12-22T18:10:43Z

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.

Limit Placed on Trial Courts Ability to Reduce Class D Felonies

2010-08-11T14:15:09Z

A Court of Appeals decision decided on August 6, 2010 has limited the ability of trial courts to reduce Class D felony convictions to Class A misdemeanors. In a case of first impression, the Indiana Court of Appeals has held that a trial court may only reduce a Class D felony, to a Class A misdemeanor, at the time of the original sentencing hearing; or, by the entry of a conditional Class D felony, whereby the Class D felony will automatically be reduced to a Class A misdemeanor within three years, provided the Defendant completes certain terms of probation.

This case does not address the situation in which a defendant has entered a plea agreement that specifically provides that the "Defendant may petition the Court for misdemeanor treatment upon the successful completion of probation." However, I anticipate that trial courts will interpret the case to continue to allow for argued hearings on misdemeanor treatment in such cases, for plea agreements entered prior to the Court of Appeals decision. Otherwise, defendants would be able to seek post-conviction relief to set aside their previous felony convictions.

I handle criminal cases in dozens of Indiana counties, and throughout the State judges have routinely reduced Class D felony convictions to Class A misdemeanors through sentence modification. This Court of Appeals decision will dramatically affect plea negotiations, sentencing hearings, and decisions on whether to proceed to jury trial, in Class D felony cases. Class D felony crimes include theft, receiving stolen property, operating while intoxicated with a prior conviction, possession of a controlled substance, resisting law enforcement in a vehicle, maintaining a common nuisance, and driving while being a habitual traffic violator. If you have a pending Class D felony charge, it is crucial that you seek the advice of an experienced criminal attorney who is familiar with this recent change in interpreting Indiana law.

Court Holds Passengers Not Required To Interact With Police

2010-08-10T13:50:09Z

The Indiana Court of Appeals reversed a man's conviction for Refusal to Identify Self, a Class C Misdemeanor. The man was a passenger in a car driven by his girlfriend, who was stopped for making an illegal turn. After obtaining the girlfriend's (driver) identification, the police officer questioned the passenger as to his identity. The man refused to comply. He was then arrested, and later convicted at a bench trial, of Refusal to Identify Self, a Class C misdemeanor.

The Court of Appeals reversed the man's conviction, holding that because there was no reasonable suspicion that the passenger had committed any ordinance or infraction violation, he was not subject to the requirement to identify himself under Indiana Code 34-28-5-3. Under Indiana law, if police believe in good faith that a person has committed an infraction or ordinance violation, the officer may detain the person to inform them of the alleged violation and obtain their name, address, and date of birth. If the person refuses to comply, they can be charged with Refusal to Identify Self, a Class C misdemeanor.

Police often use infraction traffic stops to interrogate passengers and seek to identify unrelated crimes. However, as a general proposition under Indiana law, citizens are not required to interact with police officers. If there is no reasonable suspicion that a passenger has committed an ordinance or infraction violation, the Indiana Court of Appeals has held that the passenger cannot be compelled to identify themselves or submit to interrogation.

Passengers in vehicles can be the target of investigations for crimes ranging from substance offences such as public intoxication, minor consumption of alcohol, and visiting a common nuisance, to major felonies such as possession of a firearm by a serious violent felon and other firearms charges. If you are a passenger in a vehicle, you should be aware that if police have reasonable suspicion that you have committed an infraction or ordinance violation, you can be compelled to identify yourself. You can also be briefly detained during a traffic stop so that police may alleviate any concerns about officer safety during the stop. However, if there is not reasonable suspicion that you have committed any infraction or ordinance violation, police cannot compel you to identify yourself or to submit to interrogation. If you have been arrested following a traffic stop in which you were a passenger, you should contact an experienced criminal attorney. You may have a viable motion to suppress the evidence against you.

OWI Conviction Reversed: Endangerment Requires More Than Mere Intoxication

2010-04-08T17:17:31Z

The Indiana Court of Appeals has reversed a man's conviction for operating a vehicle while intoxicated causing endangerment. The court held that to convict someone of the Class A misdemeanor offense, the State must submit proof of "endangerment" beyond mere intoxication.

Indiana law has two classes of operating while intoxicated ("OWI") offenses. It is a Class C misdemeanor to operate a motor vehicle while intoxicated. It is a Class A misdemeanor to operate a motor vehicle while intoxicated, in a manner that endangers a person. A Class C misdemeanor carries a penalty of 0 to 60 days in jail and up to a $500 fine. A Class A misdemeanor carries a penalty of 0 to 365 days in jail and up to a $5,000 fine. Furthermore, a Class A misdemeanor OWI counts as a substance offense under Indiana's habitual substance offender law. If a person is convicted of three substance offenses (such as OWI, possession of marijuana, etc.), they face an additional 3 to 8 years of incarceration for the third substance offense. A Class C misdemeanor does not count as a substance offense. Thus, a Class C misdemeanor OWI conviction is a not a strike against a defendant's habitual substance offender status.

In the case above, the defendant was parked in the middle of a drug store parking lot. The car's engine was running, and its headlights were on. The defendant sat in the driver's seat slumped over the steering wheel. A police officer testified at trial that he banged on the car's window for thirty seconds before the defendant acknowledged him. The officer also testified that the defendant answered questions slowly, had red eyes, and had a strong odor of alcohol about him. The defendant failed one of two field sobriety tests and had a .12% blood alcohol content. The police officer never observed the defendant travelling in the vehicle. However, circumstantial evidence presented at trial indicated the defendant had been driving.

The defendant was charged with two counts: operating a vehicle while intoxicated causing endangerment, a Class A misdemeanor; and operating a vehicle while intoxicated, a Class C misdemeanor. The defendant was found guilty of both counts at a bench trial. He appealed arguing that there was insufficient evidence to sustain the convictions.

The Court of Appeals reversed the defendant's conviction on the Class A misdemeanor count, finding that the State failed to present sufficient evidence of endangerment. The Court held that the State was required to submit proof of "endangerment" that went beyond mere intoxication in order for the defendant to be convicted of operating while intoxicated as a Class A misdemeanor. This ruling was significant not only because the Defendant now only faced a penalty range of 0 to 60 days, instead of 0 to 365 days. The Class C misdemeanor is not a strike towards the defendant's habitual substance offender status.

If you are arrested for operating while intoxicated in Indiana, you will almost certainly be charged with two counts of operating while intoxicated: the Class A misdemeanor offense that requires a finding of endangerment, and the lesser offense of merely operating while intoxicated, a Class C misdemeanor. If you are charged with operating while intoxicated, it is important to obtain a criminal attorney with significant trial experience. You may have a defense to a charge of Class A misdemeanor operating while intoxicated, if the State cannot prove that your driving caused endangerment. If you are also alleged to be a habitual substance offender, you may be able to avoid the 3 to 8 year sentencing enhancement.

Theft Conviction Overturned: Mere Possession Rule Abolished

2010-03-11T22:49:04Z

Mere unexplained possession of stolen property, standing alone, can no longer establish a conviction for theft in Indiana. The Indiana Supreme Court has reversed a 40 year-old rule that allowed a conviction for theft to be established by mere unexplained possession of stolen property. In this case, the defendant was spotted driving a stolen truck within a few hours after the owner reported it missing. After being stopped by police, the defendant was belligerent and insisted he did not steal the truck. The state charged him with receiving stolen property, a Class D felony.

At trial, evidence was presented that the owner of the truck had not given the defendant permission to take the truck. However, there were a number or empty beer cans and an empty liquor bottle in the bed of the truck. The alcohol did not belong to the owner of the truck, but police officers testified at trial that the defendant did not appear intoxicated and was not driving erratically. A jury convicted the defendant of receiving stolen property, a Class D felony. The Court of Appeals then reversed the conviction finding that the evidence was insufficient to show that the defendant knew that the truck was stolen. The case was then granted transfer to the Indiana Supreme Court to address the anomaly that had the State charged the defendant with theft, instead of receiving stolen property, mere possession would have been sufficient to sustain the conviction.

The Supreme Court affirmed the reversal of the defendant's conviction. The Court held that the State could only prove that the defendant was in possession of recently stolen property and that fact alone cannot support an inference that the defendant knew the truck was stolen. The Court then ruled that the same evidence could not support a conviction for theft either, abolishing the mere possession rule.This case has established a new rule that to be convicted of theft, possession of stolen property is to be considered along with other evidence in a case, such as how recent or distant in time was the possession from the moment the item was stolen, and what are the circumstances of the possession (such as possession right next door as opposed to many miles away). Even if a defendant's possession of stolen property is unexplained at trial, a jury cannot find the defendant guilty if after consideration of all of the evidence in the case, there remains a reasonable doubt as to his guilt.

This ruling makes it crucial for persons accused of theft, or receiving stolen property, to maintain their right to remain silent and their right to an attorney. Police are trained in interrogating people under duress and obtaining incriminating statements. If you are under investigation for theft or receiving stolen property, you should contact a criminal attorney immediately. An experienced criminal attorney can help attack the evidence used against you. Mere possession of stolen property alone, can no longer sustain a conviction for theft in Indiana.

Maintaining a Common Nuisance Conviction Overturned

2010-01-12T15:24:40Z

The Indiana Court of Appeals has reversed a man's conviction for maintaining a common nuisance, because the State failed to prove that he used his car to facilitate dealing in marijuana. The Court ruled that the statute defining the charge of maintaining a common nuisance was not intended to apply to a person who has personal use quantities of a controlled substance in his pocket or even loose in the car. Maintaining a common nuisance is one of the most overcharged and abused criminal allegations in the State of Indiana. It is often used by prosecutors to turn misdemeanor possession of marijuana cases into felony charges. If you are charged with maintaining a common nuisance, it is critical to obtain the assistance of an experienced trial lawyer.

Maintaining a common nuisance is a Class D felony in Indiana and carries a penalty of 6 months to 3 years in prison. Possession of marijuana under 30 grams is a Class A misdemeanor and carries a penalty of 0 to 365 days in jail. The crime of maintaining a common nuisance requires the State to prove that a person maintained a building or car that is used by persons to use illegal drugs or for unlawfully manufacturing, keeping, selling, or financing controlled substances or drug paraphernalia. Prosecutors often charge people, who are arrested in a vehicle with marijuana or drug paraphernalia, with maintaining a common nuisance, which elevates a Class A misdemeanor possession of marijuana to a Class D felony maintaining a common nuisance. The prosecutor then argues that the defendant was "keeping" the illegal drugs in a vehicle. The Court of Appeals has now ruled that such an allegation, unsupported by evidence of dealing or manufacturing of drugs, is insufficient to prove the charge of maintaining a common nuisance.

In the case referred to above, a man was pulled over for a traffic stop. He had been drinking and the police officer initiated a drunken driving (DUI) investigation. The defendant admitted to having marijuana and a pipe in his pocket. The man went to trial and was convicted of maintaining a common nuisance. The Indiana Court of Appeals reversed his conviction, because the amount of marijuana was consistent with personal use and there was no evidence that he used his car to manufacture, sell, or deliver marijuana.

If you are investigated, or arrested, on any drug related charge, it is critically important that you exercise your right to an attorney and your right to remain silent. In reaction to this case, police may attempt to interrogate people found in vehicles with small amounts of marijuana, and try to get them to confess that their vehicle was used for dealing or consuming drugs. A coerced statement could change a misdemeanor possession of marijuana charge into a Class D felony charge of maintaining a common nuisance. Passengers should also be careful. If drugs are present in a vehicle, the passengers could be charged with visiting a common nuisance. If you are charged with a crime, you should always hire an experienced criminal attorney immediately. Your first defense is to exercise your right to remain silent and obtain a criminal attorney.