*1 Further, the same ele a gratify includes all a victim has hanced sentence. intent right a statement con battery, applicability statutory of to make the ments of sexual apparent as the sentence. cerning are the crime and Bowling and Watkins v. overruling Scrougham of implicit (1991 the 35-38-1-8(b) Supp.) pro Indiana Code sentencing in a present at (1990), Ind.App., 564 N.E.2d vides a "victim State denied. trans. advised the felony ... case shall be to make a state court of victim's separate held Scrougham this court concerning sen the crime and the ment rape and sex and sentences for convictions tence." arising single from a confronta battery ual protections the afforded not violate tion did Thus, trial court we find no error the of the Unit jeopardy clauses by the double and allowing to make her statement V.H. Indiana constitutions. ed States and How doing, In so the trial vent her frustrations. court, court affirming trial this the "recovery type of court afforded V.H. only that the offenses were determined might expedite her therapy" by which she developed the standard the same under and humiliation recuperation from fear Blockburger and Brown v. Ohio a senseless suffered as the victim of she 97 S.Ct. 432 U.S. being physical attack on her and brutish not address the statu L.Ed.2d it did personal to her that also was an affront Bowling and harm standard. tory lesser dignity. and sexual legislative intent implement Watkins and sen- judgments of conviction not be convicted and that a defendant shall battery and confinement tence for sexual constitutes a for an offense that punished vacated; judg- reversed and ordered imple the victim. We less serious harm to for at- and sentence ment of conviction ordering legislative intent ment tempted rape affirmed. for sexu and sentences Griffin's conviction battery al vacated. JJ., SULLIVAN, concur. BARTEAU and

IL argues prejudiced

Griffin length allowing speak at judge V.H. to

trial repre- attorney female

on her views of a justice sys- senting and the criminal Griffin JONES, Appellant, Kenneth W. "unsubstanti- tem. Griffin believes V.H.'s Claimant, in- gender-related and ated accusations pronounce a influenced the sults" disproportional to the offenses. sentence INDIANA DE- OF the REVIEW BOARD AND EMPLOYMENT PARTMENT OF proceeding In a tried to SERVICES, D. court, Sandra generally presume the trial court TRAINING we Baker, George of as Members solely its on the basis Leek and H. renders decisions constituting probative and evidence. Coleman relevant of and as (1990),Ind., Department of v. State Board of the Indiana Services, presumption Training extended the to sen Employment Coleman and totally Center, Ap- tencing hearings. This record is Riverside Residential and application of any indication the devoid pellees. inappropriate. The tri presumption is this No. 98A02-9106-EX-264. any specially al court noted absence Indiana, Appeals Court mitigating aggravating factors. - District. Second court, specified by the trial includ factors probation and ing recent violation Griffin's Dec. history included lengthy criminal manslaugh voluntary adult convictions for

ter, marijuana, robbery, possession the en

adequately explain *2 Howell, Falk, Legal L. Dawn

Kenneth J. Indiana, Inc., In- Organization of Services appellant-claimant. dianapolis, for Gen., Pearson, Preston Atty. Linley E. Gen., Atty. Black, Atty. Office Deputy appellees. Gen., Indianapolis, for BUCHANAN, Judge. SUMMARY

CASE Kenneth Claimant-appellant _- _ his claim denial of (Jones) appeals from the appellee benefits De- (Board) of the Training Ser- Employment and partment of claiming (Department), vices was erroneous decision Board's meetings. After fusing to attend the staff hear- denied him a fair officer hearing officer concluded ing. that Jones had been affirm. refusing to attend cause *3 Board, meetings. appeal After to the full FACTS hearing findings and conclu- officer's Board's most favorable to the The facts adopted by the Board. sions were employed by that Jones was decision reveal (Riv- Residential Center appellee Riverside erside), facility, inten- release as an a work ISSUES outpatient counselor. Jones worked sive fu- 1. Whether Jones' to attend 4, 1990 until September from Riverside meetings is sufficient to sus- ture staff discharged. February when he was tain the Board's conclusion? 8:00 working hours were

Jones' normal Monday, Wednesday p.m., a.m. to 5:00 was afforded a fair Whether Jones Tues- Friday, p.m. p.m. 1:00 to 9:00 on hearing? Thursday. day and 1991, began holding January Riverside DECISION Wednesday meetings eve- staff ISSUE ONE-Was Jones' refusal to at-

nings p.m. and all staff members at 6:00 meetings just tend future staff cause for attended expected to attend. Jones discharge? meetings, excused the first two and was 30, January attending meeting on PARTIES' CONTENTIONS-Jones ar- 1991, being repaired. actually his car was gues that because he had not meeting, failed to attend a future staff meeting Jones missed the next scheduled statements that he would not attend future request February but did not to meetings cannot be considered a refusal day, that his absence be excused. The next instructions, le. obey current in futuro (Davis), supervisor, Karen Davis Jones' he not praesenti, not in and therefore was gave warning him a that he was to written discharged. responds properly The Board meetings, staff and she told attend future question state- that of whether Jones' warnings him future would result in a that refusal to work is a ments constituted a responded decision. more strict Jones to decide. question of fact for personal he had a conflict with the meetings, staff and said that he could not dismissed CONCLUSION-Jones - meetings. not attend the Jones and would for cause. not married to River- also said that was refusing for side. Davis then fired Jones decide, question we must meetings. to attend has never before been considered application unemploy- state, initial for employ courts of this is whether De- compensation ment was denied he or she will ee's statement partment. deputy's stated conclusion in the perform a certain act or acts discharged continual that Jones was future, dismissal. is sufficient requested hearing tardiness. Jones be- reviewing the Board's deci When referee, hearing

fore a and a was set for sions, reweigh the evidence or we will not April 1991. The notice of indi- credibility of the witnesses. reassess the that the issue involved was whether cated most favor Considering only the evidence just cause. Riverside Jones for decision, Jones, and all reason to the Board's At the Davis and two other able therefrom, we will admin- employees Riverside testified. The inferences drawn able evidence of if there is substantial judge told that he affirm istrative law supporting the Board's de probative value would not consider the tardiness issue be- (1988), Stepp v. Review Bd. state- termination. cause he was bound Riverside's Ind.App., N.E.2d 350. discharge: re- ment of the reason for his misconduct' an 50 or less constituted 'willful obey employee's refusal An supported the denial of the is suffi .." which instructions employer's reasonable unemploy recovery application preclude claimant's cient v. Review Bd. compensation. compensation. Sloan Id. at 286 A.2d at 23 ment supplied). 862; (emphasis 444 N.E.2d Poort v. (1983), Ind.App., (1981), N.E.2d Ind.App., 418 Bd. Review explicit The court was more Sturniolo (1979), 179 1193; Bd. v. Review Graham Unemployment Compensation Bd. 22- Ind.Code Ind.App. 475, 338 A.2d 19 Pa.Cmwlth. 4-15-1(d)(5) (1988). As this court Grae- There, court considered a claim ham, author remarked: "When the supra, discharge refusing to attend fu ant's employer has ity of those whom meetings, ture and concluded "willful mis *4 day-to-day oper responsibility for confided conduct can be where an em established employee's willful by an ations is flouted ployee disobey manifests an intent to the directives, just reasonable disregard of employ reasonable instructions of his employee ex discharge of cause for 478, at Al er...." Id. 338 A.2d at 796. 501, N.E.2d at 702. Jones 386 ists." Id. though the court in remanded Sturniolo Sloan, distinguish Poort and Gra seeks to the matter back to the board for more that each case dealt with the basis ham on findings, explicit factual the decision was current instructions. to follow Compensation in Unemployment followed us was not Although the issue before (1976), 24 Pa.Cmwlth. Bd. Review v. Ciotti of Cargal in v. Re- by this court considered 373, Ciotti, In the 56 A.2d 368. 3 85, (1981), Ind.App., 428 N.E.2d Bd. view stated, Thursday, that she claimant had case are somewhat similar the facts Saturday. not work on The claimant would Depart- Cargal, In one of the to this one. intervening Friday. was then fired on the discharged for re- interviewers was ment's and denied The court followed Sturniolo liquor, applicants jobs to fusing to refer request compensation. the claimant's dancing movie or establishments Compensa Unemployment In Redano v. affirming In religious convictions. of his (1981), 61 Pa.Cmwth. tion Bd. Review the interviewer's claim the denial of 111, 151, A.2d the court sustained the 433 compensation, we observed to a claimant who was denial of benefits put objec- these following facts: "He the writing after a note which stat being writing after asked to do tions into perform not certain work ed that she would if to He was told that he continued so. in the future. discharged. Cargal object he would be rejected precise conten The court Jones' to he could not do his continued state that Dept. Job Services Myers tion in v. Iowa assigned job; he fired." Id. at 86 was 507: (1985), App., 373 N.W.2d Iowa (emphasis supplied). Cargal's statements expect to employer has the "An perform job his that he would his directions employee his to follow to the determination an sufficient are delivered discharge just was for cause. whether the directions designat- employer himself or his jurisdictions in other have also Courts justified In of a agent. ed the absence expression of an intent concluded that the reason, follow an em- is the refusal to perform future actions is suffi to refuse to misconduct? While ployer's instructions an em just to constitute cause for cient misconduct there admittedly to have ployee's dismissal. Holland v. Unem act, is no a current there basis must be Compensation Bd. ployment argument accept Myers' upon which to (1972), A.2d 4 Pa.Cmwlth. 286 employee to for the have to wait that we insistence concluded: "Claimant's court intent, i.e., actually to his declared act on required 54 hours that she was not to work there disobey an order before refuse to week, agree to her unreasonable refusal discharge. good cause for can be the full number that she would work assertion that Myers made a direct her, expected her obvious hours superi- of his follow the order would not cut her hours back intention necessary "explore every misconduct can for the referee to or. We determine willful aspect mani- be where minute of a claimant's termination." established disobey the reasonable fests an intent to (1988), Ind.App., Meulen v. Review Bd. employer." instructions of Richey N.E.2d quoting v. Review Ind.App., Bd. at 510. Id. Also, impartial it is true that an referee is logic applies in believe the same performing in somewhat of a dilemma in unemployment compensation law. Thomas, supra dual roles. at 400 See Graham, supra,

As we observed (Sullivan, J., concurring). flouting employer's authority of an consti- dis- employee's tutes cause for the Our review of record of Jones' charge. challenge employer's to the hearing demonstrates that Jones received a it authority significant is no less when hearing. fair The administrative law per- are to be made before the instructions not hostile as Jones contends and he the willful formed. The refusal itself is witness, questioned each allowed Jones to com- misconduct. insubordinate presented by cross-examine witnesses despite ments warranted his dismissal Riverside, gave opportunity changed fact he could have his mind after own evidence. law *5 argument expressed he his refusal. Jones' judge objections sustained one of Jones' construed that his comments should be Davis, presented by evidence and excluded merely as a statement of his dissatisfaction by some evidence offered Jones. The fact working quite illogi- conditions is with that Jones was not allowed to inad cal. missible statements does not demonstrate As the facts the Board's conclu- hearing fully that the officer failed to de sion that Jones was velop the record. cause, compensation properly benefits denied. only The issue was Jones' to at meetings. tend the staff As he and both ISSUE TWO-Did Jones receive a fair presented Davis their versions incident hearing? leading discharge, to his we conclude the PARTIES CONTENTIONS-Jones adequately presented. case was Meu See hearing claims that was denied a fair len, supra; Richey, supra. hearing prevented him because the officer presenting his side of the case and complaint the referee he was not offered a continuance. have, sponte, should sua him a offered replies The Board the record as a continuance when Jones indicated he whole demonstrates Jones received a fair thought the issue of tardiness would be hearing, and that Jones has demonstrated considered, is without merit. Jones has prejudice arising no hearing from the offi- prejudice arising no from the demonstrated cer's actions. lack of a continuance. The officer CONCLUSION-Jones received a fair explicitly told Jones he would not consider hearing. issue, the tardiness at record represent Because Jones was not acknowledged Jones that he understood ed counsel the adminis that. Record at 19. Jones has made no duty trative law had a to insure a argument presented that he would have complete presentation of Jones' claim at any other or that he was in other evidence hearing. Thomas v. Review Bd. way hindered the limitation of the issue Ind.App., 543 N.E.2d 640 IAC 1-11-3 short, hearing. considered at the (1988). however, A duty, referee's is limit hearing. received a fair ed. The referee is not the claimant's advo The Board's decision is affirmed. cate, rather, sufficiently develop he must the facts and issues to allow for a reason disposition

able of the claim. It is not HOFFMAN, J., concurs. upon I reverse the merits Because would SULLIVAN, J, opinion. dissents with benefits, I do not reach the of the claim SULLIVAN, dissenting. Judge, of the question respect with to the fairness respect to majority opinion, with hearing. issue, presup- discharge" "good cause for keep must in mind that there is a requirement for poses that the right employ- between the of an difference meetings was a at the attendance employee to terminate an who indicates er Jones, requirement applied as reasonable that he does not wish to be a "member of his conditions light of the hours and team", right employee to and the of the meet- mandatory staff employment. The draw benefits as a result of such termi- sure, P.M. To be ings place took at 6:00 prohibited discriminatory nation. Short of Tuesday or on a refusal of Jones to attend has no terminations, from 1:00 shift ran Thursday, when his truism, employment. That how- continued P.M., constitute cause P.M. to 9:00 would question not answer with question does discharge. Quite a different employment regard to entitlement to secur- a meet- by a demand to attend presented ity benefits. after termi- ing commences an hour shift, the case here. nation of the as was meetings question were held work shift end-

Wednesdays when Jones's

ed at 5:00 P.M. be question would also

A different if, to the initial

presented as a condition that Jones employment, it was made known INDIANA DEPARTMENT OF INSUR- III, ANCE, Dillon, meetings, expected to attend all staff and John J. Commis- *6 note, Department I how- no matter when scheduled. sioner of the Indiana meeting Insurance, Appellants-Plaintiffs, January 1991. rule not initiated until v. employed September since Jones had been COMPANY, ZENITH RE-INSURANCE LTD., Corporation, an Alien not, view, my appropriate It Appellee-Defendant. job site equate refusal to remain on 49A02-9102-CV-84 1. No. completion of the more than an hour after to attend staff work shift with refusal Indiana, Appeals of Court of immediately preceding meetings during or Fifth District. sure, following the shift. To be or work Dec. That differ- the difference is but one hour. however, ence, the line between 19, 1992. establishes Rehearing Denied Feb. disregard flagrant for reasonable what is arguably regulations and an employment

valid assertion required him are unreason-

extra hours Corp. v. Review Best Lock

able. See Employment Dept. Indiana (1991) Ind. 4th Dist. Training Services Jones's conduct also

App., 572 N.E.2d 520. or in- not constitute such misconduct

does him disqualify

subordination as to Review Board

benefits. Frazier Division Employment Securities

(1963) N.E.2d 281. Ind.App. Judge. order of the Chief to this office 1. This case has been diverted