Indiana Court Decisions: June 15-27, 2023

7th Circuit Court of Appeals

June 15

United States of America v. James E. Snyder

21-2986

7th Circuit affirms bribery, IRS obstruction convictions against ex-Indiana mayor

A former northwest Indiana mayor convicted of bribery and obstructing federal revenue laws failed to convince the 7th Circuit Court of Appeals that, among other things, his rights were violated when the government seized communications between him and his attorney.

James Snyder, who took office as mayor of Portage in 2012, was convicted of federal funds bribery for soliciting and accepting $13,000 in connection with the city’s purchase of garbage trucks. He was also convicted of obstructing the administration of federal revenue laws for concealing assets and income from the Internal Revenue Service.

Snyder was sentenced to 21 months and one year of supervised release.

The issue started in November 2013, when his administration announced it would purchase garbage trucks through public bidding. Two contracts were awarded to Great Lakes Peterbilt, a truck company owned by two brothers.

Snyder put his longtime friend, Randy Reeder, in charge of the bidding process, and Reeder testified at trial that he drafted the bid specifically to favor the truck company.

Less than three weeks after the second contract was awarded, the company paid Snyder $13,000.

Years before becoming mayor, Snyder’s business, First Financial Trust Mortgage, failed to pay its payroll taxes in full for a span of three years, and the IRS levied the business’s bank accounts.

After that, Snyder made an arrangement with another mortgage company, GVC Mortgage, where he would manage and operate First Financial as a division of GVC. He sent invoices to GVC for costs ostensibly incurred in operating First Financial. And rather than having GVC reimburse First Financial, Snyder had GVC send reimbursements to a different company Snyder created called SRC Properties.

Snyder was also behind on his personal taxes, and the IRS levied his personal bank accounts in 2010 and 2011.

In trying to negotiate a settlement or installment plan with the IRS on his personal taxes, Snyder submitted documents in which he didn’t report that he owned SRC Properties. He also omitted his employment with GVC Mortgage.

A federal grand jury indicted Snyder in November 2016.

While he was convicted of one count of federal funds bribery and one count of obstructing the IRS, a jury acquitted Snyder on a separate bribery charge involving the city’s towing contracts.

Snyder moved for a judgment of acquittal or a new trial on the counts of conviction. The U.S. District Court for the Northern District of Indiana, Hammond Division, denied the motion for acquittal but granted a new trial on the bribery charge.

The jury again returned a guilty verdict in March 2021.

On appeal, Snyder challenged the district court’s denial of his motion to dismiss the indictment or disqualify the prosecution team after the government seized communications between him and his attorney.

He also challenged the IRS obstruction conviction on the grounds that the prosecution was barred by the statute of limitations and that there wasn’t sufficient evidence.

Finally, Snyder made several challenges to his bribery conviction, including that his right to a speedy trial were violated by the delay between the first and second trials.

But the 7th Circuit wasn’t persuaded.

Regarding communications seized between him and his attorney, Snyder argued his Fourth and Sixth Amendment rights were violated when, pursuant to a warrant, the government got access to his personal and city email accounts.

Though he hadn’t yet been indicted, the government knew Snyder had retained counsel, so it developed a filter process to prevent the prosecuting team from receiving privileged communication.

Eventually, the prosecuting team had access to about 600 emails between Snyder and his attorney that weren’t considered privileged communication. Snyder argued the team ended up with access to about 40 emails that he said were privileged.

Though the district court concluded one email containing financial information prejudiced Snyder, his motion to dismiss was denied.

The 7th Circuit denied Snyder’s Fourth Amendment challenge, ruling the remedy for such violations is suppression of the evidence, not a dismissal of the indictment or disqualification of the prosecution team.

In disagreeing with Snyder’s Sixth Amendment argument, the 7th Circuit ruled seizing and filtering emails didn’t violate his right to counsel because the right hadn’t been attached yet. The government completed its filter process in early 2016, and Snyder was indicted in November 2016.

“To be sure, where law enforcement has reason to expect that a search (electronic or otherwise) will sweep up privileged communications, it should take appropriate measures to avoid intruding on attorney‐client relationships,” the opinion says. “We are not convinced, however, that the filter process used here would have been rejected by other circuits, nor do we agree that the Constitution required earlier participation of defense counsel or oversight by the district court.”

The 7th Circuit also disagreed with Snyder’s argument that the statute of limitations barred prosecution for obstructing the IRS and that the evidence wasn’t sufficient.

The 7th Circuit ruled the six-year statute of limitations meant the government needed to allege Snyder engaged in an act to obstruct the IRS on or after Nov. 17, 2010, which it did.

Snyder argued the district court erroneously intertwined his payroll tax and personal tax misconduct, but the 7th Circuit said he “misreads” the court’s order.

The 7th Circuit also ruled there was sufficient evidence to support the jury’s verdict.

“The jury could reasonably conclude that misrepresenting assets and income in settlement and installment‐plan negotiations with the IRS could have the effect of impeding the IRS’s collection efforts,” the opinion says.

The 7th Circuit also ruled the jury could have concluded Snyder acted with the intent to gain an unlawful advantage.

Snyder’s challenges to his bribery conviction included that his right to a speedy trial was violated, that 18 U.S.C. § 666(a)(1)(B) applies to bribes but not to gratuities and therefore does not apply to his case and that the evidence wasn’t sufficient at either trial.

The district court, in denying Snyder’s motion to dismiss under the Speedy Trial Act, excluded a 45-day continuance from its calculation.

But the 7th Circuit ruled review is foreclosed because Snyder and his counsel said they would not “push the point” of the 45-day continuance.

“Snyder agreed to exclude the 45 days, and the continuance furthered the interests of justice by giving supervisors overseeing Snyder’s prosecution time to review transcripts and to make a considered choice regarding his retrial,” the opinion says.

The 7th Circuit also noted that some of the delay resulted from consideration of Snyder’s motions and that the pandemic disrupted proceedings.

In arguing 18 U.S.C. § 666 doesn’t apply, Snyder said the payment made to him was at worst a gratuity rather than a bribe.

But the 7th Circuit ruled it would follow its precent in holding the statute doesn’t require evidence of a prior quid pro quo agreement.

Lastly, the 7th Circuit disagreed with Snyder’s argument that there wasn’t sufficient evidence at either trial to convict him.

The 7th Circuit noted that when questioned by the FBI, Snyder claimed the $13,000 was payment for health care and IT consulting he performed, but he couldn’t identify any work he actually provided.

Because of “irregularities” in the bidding process, combined with the timing of the payment and “dubious explanations,” the 7th Circuit ruled a reasonable jury could conclude he accepted the check as a bribe or gratuity.

The 7th Circuit also disagreed Snyder is entitled to a judgment of acquittal, ruling his argument was incorrect as a matter of law and fact.

The case is United States of America v. James E. Snyder, 21‐2986.

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June 23

Teresa F. Sykes and Shirley A. Parton v. Cook Incorporated, Cook Medical LLC, and William Cook Europe APS

22-1844 and 22-2256

7th Circuit vacates summary judgment for Cook Medical in IVC filter cases, finding lack of jurisdiction

Two women who joined a wide-ranging MDL against Cook Medical did not allege injuries more than the jurisdictional minimum of $75,000, the 7th Circuit Court of Appeals has ruled in vacating the district court’s grant of summary judgment in Cook’s favor.

The plaintiffs in the two cases consolidated in a multidistrict litigation proceeding, Shirley Parton and Teresa Sykes, each alleged that they received a defective inferior vena cava filter manufactured by Cook. Parton is a Kentucky citizen and Sykes was a Texas citizen at times relevant to litigation.

Years after the procedure, both women received CT scans that showed the filters had perforated their IVC walls.

Neither experienced pain or other symptoms but still pursued product liability claims against Cook.

The U.S. District Court for the Southern District of Indiana, Indianapolis Division, adopted a direct-filing process for the MDL that didn’t require Parton or Sykes to file standard complaints. They instead filed short-form complaints that incorporated allegations from a master complaint.

The district court later granted Cook’s motion for summary judgment, and Parton and Sykes appealed.

But before getting to the merits, the 7th Circuit asked whether there was federal subject-matter jurisdiction.

The court determined there wasn’t because neither party’s alleged injuries put more than the minimum $75,000 at stake.

In reaching that conclusion, the 7th Circuit applied the “legal certainty” test articulated in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938). A plaintiff’s allegations about the amount in controversy control, the opinion says, unless the court concludes “to a legal certainty” that the pleadings demonstrate the plaintiff can’t recover the jurisdictional minimum or that the plaintiff wasn’t entitled to that amount.

The court applies state law to decide whether more than $75,000 is in controversy, the opinion says, and the relevant question is whether recovery in that amount is permissible, not likely.

The 7th Circuit ruled Parton and Sykes, while relying on the master complaint, contradicted its jurisdictional allegations in their short-form complaints and case categorization forms. The court also ruled it was “legally impossible” for either of them to recover more than $75,000.

The master complaint “no doubt” alleges injuries that put more than $75,000 in controversy, the opinion says, but neither Parton nor Sykes suffered the injuries alleged in the master complaint. And even though a plaintiff can file directly into the MDL if the master complaint’s allegations don’t fully capture their own, it’s up to the individual plaintiff in that circumstance to add their own jurisdictional allegations in the short-form complaint.

Neither plaintiff did that here, though, even after the 7th Circuit raised the possibility of such an amendment at oral argument and in an order directing the parties to file supplemental memoranda.

“We agree that Parton and Sykes cannot amend the master complaint, which was filed by lawyers acting on behalf of all plaintiffs, but we do not see why they could not amend their short-form complaints,” the opinion says. “Court-ordered or not, the short-form complaints are individual filings that allege the basis of federal jurisdiction through incorporation from the master complaint, individualized allegations, or both.”

Parton and Sykes argued neither the district court nor any party had questioned jurisdiction in the MDL before, but the 7th District said that fact “does not relieve us of our obligation to ensure we have jurisdiction.”

Cook argued that because it’s “impossible” to predict how a jury might value the plaintiffs’ claims, the court shouldn’t determine to a legal certainty that they fail to meet the requirement.

The 7th Circuit ruled it does not estimate jury awards to determine the amount in controversy, but instead analyzes whether governing laws would allow an award for the jurisdictional minimum.

Cook also asked the 7th Circuit to reach the merits and hold the plaintiffs’ claims aren’t legally cognizable, believing that would give the district court “the tool it has lacked up to this point” to assess the amount in controversy in the MDL.

“Convenience, however,” the opinion says, “does not control our jurisdictional analysis.”

While it determined the pleadings don’t establish jurisdiction, the 7th Circuit said its analysis needed to continue because the pleadings alone didn’t establish the amount in controversy.

The court next turned to post-filing events, including evidence during discovery.

Parton and Sykes presented five categories of evidence: medical records, a medical expert’s declaration, medical journal articles, a Food and Drug administration communication and Sykes’ declaration. The declaration and medical journal articles applied to Sykes only.

The court wasn’t convinced.

In the case of the medical expert’s declaration, for example, which came from a cardiothoracic surgeon, the 7th Circuit determined that while the declaration established the plaintiffs experienced blood clots and other issues, it didn’t “allow either plaintiff to allege damages based on any particular impairment due to her IVC perforation.”

Discussing relevant state laws for each plaintiff, the 7th Circuit found a verdict for the jurisdictional minimum would be set aside as excessive for Parton’s Kentucky and Sykes’ Texas.

The case was remanded with instructions to dismiss the cases without prejudice.

Judge Amy St. Eve wrote the opinion.

The case is Teresa F. Sykes and Shirley A. Parton v. Cook Incorporated, Cook Medical LLC, and William Cook Europe APS, 22-1844 & 22-2256.

Indiana Supreme Court

June 22

Matthew Hayko v. State of Indiana

23S-CR-13

IN Supreme Court: Man should have been allowed to introduce opinion testimony in child molest case, but error was harmless

A unanimous Indiana Supreme Court agreed that a trial court erred in not admitting testimony about the character of a man’s daughter in a child molestation case. However, justices also ruled the error was harmless and ultimately affirmed the trial court’s decision while also deciding what’s required before a witness can offer an opinion on another’s character for truthfulness.

Matthew Hayko was convicted of Level 4 felony child molesting and sentenced to eight years, with two years suspended to probation.

At his trial, during voir dire, potential jurors were asked about witness credibility, their opinions about the truthfulness of children as witnesses and their perceptions about how children would react to discussing sexual topics.

During the state’s case-in-chief, Tammy Lampert, the executive director of a children’s advocacy center, testified over objection about delayed disclosure and children’s reactions to molestations.

For his part, Hayko asked to present testimony from witnesses regarding their opinion of the character of V1, his daughter. In the offer to prove, the three witnesses testified independently about their interactions with the child and their opinion that she was untruthful.

But the Spencer Circuit Court concluded Hayko had not laid a proper foundation for that testimony and thus declined to admit it.

Hayko appealed, arguing in part that the trial court’s conflation of the foundational requirements for reputational testimony under Indiana Evidence Rule 608 — as to his proffered opinion testimony under that rule — denied him the right to present a defense.

A split Court of Appeals of Indiana agreed that the trial court misinterpreted Rule 608 and reversed, finding the error was not harmless.

In an issue of first impression, the Supreme Court also agreed the trial court erred. But concluding the error was harmless, the high court affirmed the trial court’s decision.

The Supreme Court has clarified the foundational requirements for admitting reputation testimony in Bowles v. State, 737 N.E.2d 1150 (Ind. 2000), but hadn’t previously done the same for opinion testimony.

Answering the question of what a proponent must show to establish that a witness can reliably offer an opinion regarding another’s character for truthfulness under Rule 608, the Supreme Court found two evidentiary rules instructive.

First is Rule 602, which says a “witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”

Second is Rule 701, which limits a lay witness’ opinion testimony to one that is “rationally based on the witness’s perception” and “helpful to a clear understanding of the witness’s testimony or to a determination of a fact in issue.”

“Informed by these relevant constraints, an opinion on another’s character for truthfulness or untruthfulness under Rule 608(a) must stem from the testifying witness’s personal knowledge of that character,” the opinion says. “And because a witness offering such an opinion is not testifying as an expert, their personal knowledge must be the rational product of the witness’s own perception — such as interactions or observations — and also be helpful to the trier of fact.”

The state argued a proponent must also show the “opinion is based on sufficient and recent contact” with the witness whose credibility is being attacked, but the Supreme Court agreed with Hayko’s position that the “vast majority” of jurisdictions do not impose those requirements.

The three opinion witnesses Hayko sought to introduce at trial — his father, stepmother and sister — said they had known V1 since birth and had been around her many times, including at family gatherings, and had direct communication with her.

“The above testimony established a proper foundation for each witness’s opinion of V1’s character for untruthfulness,” the opinion says. “Their opinions were rationally based on their personal knowledge, specifically their own observations of and interactions with V1, which occurred on multiple occasions.”

The Supreme Court ruled the trial court erred because its decision was based exclusively on considerations related to establishing a foundation for reputation testimony.

Appellate Rule 66(A) governs non-constitutional errors, the opinion says, though its application in appellate courts has been “far from consistent.”

The inconsistency stems from caselaw reviewing whether an error is harmless under Trial Rule 61, the Supreme Court said, and the similarities between the rules “have produced discrepancies about which rule governs appellate review of non-constitutional errors and how the rule should be applied.”

But it’s Appellate Rule 66(A), not Trial Rule 61, that “defines reversible error for our appellate courts,” the opinion says.

Still, while Hayko should have been allowed to attack V1’s credibility with the opinion testimony of his three witnesses, the Supreme Court ruled it remains confident in the verdict despite the error.

That’s in part, the Supreme Court said, because the record shows Hayko impeached V1’s credibility through other evidence, including telling the jury that V1 was “manipulative, vindictive” and that he “knew she was a liar.”

Indiana Chief Justice Loretta Rush wrote the opinion. Justices Mark Massa, Geoffrey Slaughter, Christopher Goff and Derek Molter concurred.

The case is Matthew Hayko v. State of Indiana, 23S-CR-13.

Court of Appeals of Indiana

June 16

Greg and Robin Shinall v. Board of Zoning Appeals for Town of Ogden Dunes, Indiana; David and Cheryl Tarpo

22A-PL-3098

Split COA, reverses, remands in case involving home heights, view of Lake Michigan

A split Court of Appeals of Indiana reversed a motion to dismiss and remanded for further proceedings on whether an Ogden Dunes couple can build a house taller than 30 feet that would obstruct the lake view of the houses behind them.

Greg and Robin Shinall own a home on a hill that they bought in 2005 in Ogden Dunes.

David and Cheryl Tarpo bought a home in 2015 north of the Shinalls’ on Lake Michigan. From the Shinalls’ they can see Lake Michigan above the Tarpos’ home.

The Tarpos wanted to build a new 6,500-foot home on their property in 2022, but the Ogden Dunes Zoning Code limits the height of residential buildings to 30 feet.

In May 2022, the Shinalls received notice that the Tarpos had applied for the height variance.

A month later, a public hearing was held on the Tarpos’ application where the Shinalls argued against the variance. The town’s board of zoning appeals approved the height variance.

The Shinalls then filed their own Verified Petition for Review of Zoning Decision where they claimed several properties would no longer have lake views due to the Tarpos’ new home.

The Shinalls argued that the zoning board’s decision should be set aside because it was inconsistent with the town’s zoning code standards.

They filed a certified copy of the zoning board’s record of proceedings with their petition for judicial review.

In September 2022, the defendants filed their joint motion to dismiss for lack of standing pursuant to Indiana Trial Rule 12(B)(6), along with a memorandum of law in support.

The defendants contended that the Shinalls had no legally protected right to an unobstructed lake view under Indiana common law.

In response, the Shinalls argued that the defendants had conceded that the zoning code furnished them with a legally protected interest in the view of the lake from their home.

In November 2022, the Porter Superior Court held a hearing on the defendants’ motion, where no evidence was heard.

A month later, the trial court issued its order dismissing the Shinalls’ petition for judicial review due to lack of standing.

The trial court didn’t enter findings of fact in support of its ruling.

The Court of Appeals reversed and ruled the trial court erred in granting the defendants’ motion to dismiss.

The appellate court remanded the case for further proceedings.

The one issue the Shinalls brought before the appellate court was whether the trial court erred in granting the defendants’ motion to dismiss the Shinalls’ petition for judicial review based on a lack of standing.

“In addition, the facts alleged not only demonstrate a pecuniary injury but establish an injury beyond that to be suffered by the community as a whole,” Judge Rudolph Pyle wrote.

The appellate court found only the Shinalls and neighbors would suffer from the loss of enjoyment and market value from an obstructed lake view.

The court held that the Shinalls had standing because they had a substantial grievance with the zoning board’s decision to grant a variance to the Tarpos. Thus, the trial court erred in granting the defendants’ motion to dismiss.

Chief Judge Robert Altice concurred but Judge Patricia Riley dissented with a separate opinion.

Riley disagreed that the Shinalls had standing and cites EP MSS LLC v. Merrillville Bd. of Zoning Appeals, 192 N.E.3d 981, 986 (Ind. Ct. App. 2022).

“Thus, we have concluded that it is not adequate to confer standing when petitioners seeking judicial review are nearby property owners or even that they assert a pecuniary loss; rather, petitioners must also have a legal right to the interest they claim was injured,” Riley wrote.

She also cited Center Townhouse Corporation v. City of Mishawaka, 882 N.E.2d 762, 772 (Ind. Ct. App. 2008), where the appellate court concluded that Indiana doesn’t recognize any common law riparian right of an unobstructed view of water by a landowner.

“However, if standing is conferred by the existence of a zoning statute itself, there is no limit to who may claim standing to contest a zoning decision,” Riley wrote. “Because the majority’s decision today throws open the floodgates of standing and conflicts with … EP MSS, and Center Townhouse Corporation, I dissent.”

The case is Greg and Robin Shinall v. Board of Zoning Appeals for Town of Ogden Dunes, Indiana; David and Cheryl Tarpo, 22A-PL-3098.

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June 26

Steven Ray Hessler v. State of Indiana

22A-CR-989

Sex crimes convictions, sentence upheld, but dissent points to pre-Wadle rules

The rape-related convictions that led to a man’s 650-year aggregate sentence will stand, as will the sentence itself, a split Court of Appeals of Indiana affirmed in a ruling that included a dissent from one judge on the issue of double jeopardy.

The case dates back to August 1982, when a three-year rash of home invasions and sexual assaults began in Shelby County.

The crimes went unsolved for decades until the police reopened the investigation and arrested Steven Ray Hessler after matching his DNA to one of the crimes.

In August 2020, the state charged Hessler with 24 felonies related to seven home invasions.

Hessler filed a motion to dismiss the charges, and the Shelby Circuit Court dismissed several of the charges because they were outside the statute of limitations.

A jury trial was held on the remaining 19 charges, which included two counts of rape as Class A felonies; nine counts of criminal deviate conduct as Class A felonies; seven counts of burglary as Class A felonies; and one count of robbery as a Class A felony.

The jury found Hessler guilty as charged, and the trial court imposed an aggregate 650-year sentence.

Hessler appealed, first citing multiple instances of alleged prosecutorial misconduct during the state’s cross-examination of him and arguing that the prosecution’s closing argument denied him a fair trial.

Additionally, Hessler claimed four of his Class A felony burglary convictions violated Indiana’s common law prohibition on double jeopardy.

Finally, he argued that his sentence was inappropriate in light of the nature of the offenses and his character.

The appellate court disagreed and affirmed in full.

Judge Peter Foley wrote the opinion for the court.

According to Foley, out of all the alleged instances of misconduct that Hessler contended occurred during his trial, he only asked for an admonishment and mistrial after two occurrences. One involved a statement during closing argument, which Hessler asserted was demeaning to defense counsel. The second occurred when the state was commenting on the evidence that Hessler presented in his own defense.

In the first statement, the prosecutor compared his cross-examination of Hessler and defense counsel’s cross-examination of K.E., one of Hessler’s youngest victims, to remind the jurors that both Hessler and his victims were subjected to thorough cross-examination and difficult questions.

“We do not find that this challenged statement was misconduct, nor did it place Hessler in a position of grave peril to which he would not have been subjected otherwise,” Foley wrote.

In the second instance, when Hessler tried to explain why he had conducted multiple Google searches on some of the victims, he said it was at the request of his aunt, who was deceased at the time of trial and, therefore, could not testify to support his explanation. The prosecution brought up Hessler’s aunt in the rebuttal statement, saying she was “used” and had passed.

“This challenged statement that Hessler claims shifted the burden of proof was a comment on that lack of evidence. There was nothing improper about stating that the one person who could support Hessler’s version of events was now deceased,” Foley wrote.

“The State’s argument was also not an inappropriate response to defense counsel’s argument in closing that the State did not bring one of the victims back to testify in rebuttal to Hessler’s testimony,” Foley added. “In its argument, the State was merely pointing out that the information that defense counsel criticized the State for not presenting, could have been asked by defense counsel when he cross-examined the victim, and before she returned to her home out of state.

“Further, even if the statement was prejudicial, the trial court immediately admonished the jury as Hessler requested and minimized any prejudice by instructing the jury” that the state had the burden of proving the crime’s elements beyond a reasonable doubt and that the defendant was presumed innocent, the COA noted.

“… (L)ooking at the alleged instances of misconduct that were not preserved as prosecutorial misconduct and that occurred in the presence of the jury in light of the evidence presented at trial, we do not conclude that the alleged misconduct had an undeniable and substantial effect on the jury’s decision such that a fair trial was not possible,” Foley wrote. “… Thus, the alleged misconduct did not rise to the level of fundamental error.”

Turning to the double jeopardy challenge, the COA found that Hessler was correct that, at the time he committed his crimes, Indiana’s double jeopardy clause prohibited the enhancement of an offense based on the same injury that established another offense for which the defendant had already been punished.

But the Indiana Supreme Court significantly altered the test for double jeopardy in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256 (Ind. 2020), Foley wrote. Wadle, in particular, replaced the common law double jeopardy rules, including the common law rule upon which Hessler relied.

“Because we conclude that Wadle replaced the common-law double jeopardy rules, and that it applies retroactively, we cannot consider Hessler’s reliance on the common law rule that an offense cannot be enhanced based on the same injury that established another offense for which the defendant had already been punished,” Foley wrote. “Further, because Hessler raises no argument that his convictions constitute double jeopardy under Wadle, we cannot say that his double jeopardy rights were violated.”

Judge Nancy Vaidik dissented on that point, writing separately that the state didn’t charge Hessler until more than 30 years after his crimes — the same day the Supreme Court decided Wadle. She said she was “firmly convinced” that Hessler is entitled to the benefit of the double jeopardy law that was in effect at the time of his crimes.

“Bottom line, I believe Hessler has a due process right to the benefit of the enhancement rule that existed at the time he committed his crimes, notwithstanding the fact that our Supreme Court did away with that rule decades later. The four Class A felony burglary convictions he challenges should be reduced to Class B felonies, and he should be re-sentenced accordingly,” Vaidik wrote.

She otherwise concurred.

Finally, the appellate court rejected Hessler’s argument that his 650-year sentence was inappropriate, noting Hessler inflicted severe psychological trauma on the victims by breaking into their homes, terrorizing them over the course of hours and injuring them.

He also did not acknowledge his own criminal history, the opinion states, which included a 1990 conviction for Class B felony attempted rape, for which he was sentenced to 20 years executed.

Judge Elizabeth Tavitas joined Foley in the majority in Steven Ray Hessler v. State of Indiana, 22A-CR-989.

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June 27

Kevin Allen Holladay v. State of Indiana

22A-MI-2633

Indiana man can’t be removed from sex offender registry for Kentucky offense, COA affirms

A man convicted of a sex crime against a minor 15 years ago in Kentucky must remain on Indiana’s sex offender registry, the Court of Appeals of ndiana affirmed.

In 2008, Kevin Holladay was convicted in Kentucky of sexual abuse in the second degree. Holladay received a one-year executed sentence with five months suspended to probation.

Under Kentucky law, a defendant convicted of that crime is required to register. Although the Kentucky court ordered Holladay to register as a sex offender for 20 years, he never did.

Holladay moved to Indiana at some point after his conviction and placed his name on Indiana’s sex offender registry.

In April 2022, Holladay petitioned the Madison Circuit Court to remove him from the Indiana registry, but the trial court denied his request.

Holladay appealed, arguing that his registration as a sex offender in Indiana violates Indiana Code § 11-8-8-5 because the statute does not specifically define his Kentucky offense as a crime requiring registration.

Holladay also argued his registration constitutes an ex post facto punishment in violation of Article 1, Section 24 of the Indiana Constitution, and violates the privileges and immunities clause of Article 1, Section 23.

But the appellate court affirmed, with Judge Leanna Weissmann writing the unanimous opinion.

The COA rejected Holladay’s argument that his Kentucky crime is unlike any of the specific offenses listed under I.C. 11-8-8-5 and, therefore, did not require him to be on Indiana’s sex offender registry.

“Our reading of the statute, however, convinces us that the out-of-state registration requirement independently requires his registration, regardless of any similarities, or lack thereof, with the crimes specifically listed there,” Weissmann wrote.

Weissmann pointed to Tyson v. State, 51 N.E.3d 88 (Ind. 2016), which notes that I.C. 11-8-8-5 defines “sex or violent offender” in two parts, including a latter part that defines the term to include “a person who is required to register as a sex or violent offender in any jurisdiction.”

That makes Holladay a “sex or violent offender” under Indiana law, according to Weissmann.

Turning to Holladay’s ex post factor argument, the COA also pointed to Tyson’s companion opinion, State v. Zerbe, 50 N.E.3d 368 (Ind. 2016).

In those cases, the Supreme Court held that there is no ex post facto violation when offenders committed their offense before the enactment of Indiana’s Sex Offender Registration Act, were required to register in their original states and had moved to Indiana after the out-of-state registration requirement went into effect — the same circumstances present here.

“In effect, the Court found that ‘maintaining a registry requirement across state lines does not amount to a punitive burden,’” Weissmann wrote, quoting Tyson. “By extension, Holladay is not punitively burdened here.”

The appellate court also rejected Holladay’s argument that his registration is punitive because he never registered in Kentucky.

Finally, the appellate court dismissed Holladay’s claim that his registration infringes upon his constitutional “right to travel,” ruling that he waived that issue for failing to raise it before the trial court. Weissmann wrote that Holladay neither mentioned Article 1, Section 23 nor offered legal analysis on the issue to the trial court.

Judges L. Mark Bailey and Elaine Brown concurred.

The case is Kevin Allen Holladay v. State of Indiana, 22A-MI-2633.•