982 N.E.2d 439
Ind. Ct. App.2013Background
- Whitener was convicted of burglary as a class A felony and ordered to register as a sex offender as a condition of probation after a jury trial in Elkhart County.
- The underlying intended felony was rape, and the court later vacated Count II (rape) based on double jeopardy concerns, merging it for sentencing purposes.
- Evidence showed Whitener entered K.A.’s home through a window, engaged in sexual activity with K.A. while she was heavily intoxicated, and left the scene with others present.
- K.A. testified she did not consent or invite Whitener to return, did not recall requesting entry, and sought help as she was crying during the assault.
- Whitener challenged both the sufficiency of the burglary conviction and the sex-offender probation condition; the State cross-appealed regarding double jeopardy, which the court dismissed as untimely.
- On appeal, the Indiana Court of Appeals affirmed Whitener’s burglary conviction, affirmed the probation-condition sex-offender order, and dismissed the State’s cross-appeal on double jeopardy grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of burglary as class A felony | Whitener argues there was insufficient evidence of intent to commit rape and of bodily injury. | Whitener contends the State failed to prove both breaking and entering with the requisite intent and resulting bodily injury. | Sufficient evidence supports burglary A felony. |
| Probation condition: sex-offender registration | Whitener contends burglary alone does not trigger sex-offender registration under statute. | State argues trial court may impose sex-offender registration as a probation condition reasonably related to rehabilitation. | Court did not abuse discretion; sex-offender registration permitted as probation condition. |
| Cross-appeal on double jeopardy | State argues Count II (rape) should not have been vacated; double jeopardy issue warrants relief. | Whitener contends the cross-appeal is untimely and improper under applicable rules. | State’s cross-appeal is untimely and dismissed. |
Key Cases Cited
- Jordan v. State, 656 N.E.2d 816 (Ind. 1995) (sufficiency review; credibility weighs not reweighed)
- Ferrell v. State, 565 N.E.2d 1070 (Ind. 1991) (uncorroborated testimony can sustain a conviction)
- Freshwater v. State, 853 N.E.2d 941 (Ind. 2006) (felonious intent must be shown independently)
- Justice v. State, 530 N.E.2d 295 (Ind. 1988) (evidence must support separate inferences for intent and breaking and entering)
- Kondrup v. State, 235 N.E.2d 703 (Ind. 1968) (need for independent inference of felonious intent)
- Baker v. State, 968 N.E.2d 227 (Ind. 2012) (evidentiary inferences must be independently supported)
- Hale v. State, 888 N.E.2d 314 (Ind. Ct. App. 2008) (probation conditions must be reasonably related to rehabilitation)
- Weiss v. Ind. Parole Bd., 838 N.E.2d 1048 (Ind. Ct. App. 2006) (sex-offender conditions may be imposed when reasonably related to rehabilitation)
- Gaither v. Ind. Dep’t of Correction, 971 N.E.2d 690 (Ind. Ct. App. 2012) (probation-parole conditions broad discretion; rehabilitation focus)
- Anglemeyer v. State, 868 N.E.2d 482 (Ind. 2007) (probation conditions must be reasonably related to rehabilitation)
- Weiss v. Ind. Parole Bd. (Weiss), 838 N.E.2d 1048 (Ind. Ct. App. 2006) (parole conditions applied where crime involved sexual act with a child)
- Hardley v. State, 905 N.E.2d 399 (Ind. 2009) (State may challenge pure questions of law on appeal)
- Holtsclaw, 977 N.E.2d 348 (Ind. 2012) (Appellate Rule 9 timing in cross-appeals; tolling considerations)
- McCullough v. State, 900 N.E.2d 745 (Ind. 2009) (double jeopardy challenge not a sentence challenge on direct appeal)
- Brunner v. State, 947 N.E.2d 411 (Ind. 2011) (timeliness of appeals following modification of conviction)
- Beatty v. State, 854 N.E.2d 406 (Ind. Ct. App. 2006) (belated notice of appeal treated as timely under Post-Conviction Rules)