from the Marion Superior Court The Honorable Lisa F. Borges,
Judge Trial Court Cause No. 49G04-1705-XP-17472
Attorney for Appellant Thomas B. O'Farrell McClure /
O'Farrell Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Henry A. Flores, Jr. Deputy Attorney General
Jason Keene appeals the denial of his petition to expunge a
2009 felony conviction. He argues that his due process rights
were violated when the trial court admitted into evidence a
written statement from the victim of the crime. Finding no
error, we affirm.
On April 28, 2009, Keene pleaded guilty to Class C felony
stalking in exchange for the dismissal of eight other
charges. His then-wife, Ginger Keene, was the stalking
On May 2, 2017, Keene filed a petition to expunge the
stalking conviction. The State objected to expungement. At
the January 8, 2018, hearing on his petition, Keene
diminished his responsibility for the crime, maintained that
he had merely caused Ginger emotional pain, and stated that
"I did not stalk her," claiming that she had
created text messages to support the stalking charge. Tr.
Vol. II p. 15. Keene called his employer and a clergy person
as witnesses; Keene had told both individuals that his wife
had "set him up" and that he only pleaded guilty
because his attorney had advised him to. Id. at 34.
After Keene presented his case, the State, pursuant to the
expungement statute, moved to admit a letter from Ginger into
evidence. Keene objected; the State responded that the
expungement statute explicitly permitted the victim to submit
a letter. The trial court overruled the objection, admitted
the letter, and ultimately denied Keene's expungement
petition. The trial court explained that it was denying the
petition "because of the serious nature of the offense
committed by [Keene], the objection of the State of Indiana
to the granting of an expungement, and the continuing trauma
the victim has experienced as a result of the crime."
Appealed Order p. 2. Keene now appeals.
Keene's sole argument on appeal is that the admission of
Ginger's written statement violated his due process
rights because he did not have the opportunity to
Indiana Code section 35-38-9-9(d) explicitly provides that
"[a] victim of the offense for which expungement is
sought may submit an oral or written statement in
support of or in opposition to the petition at the time of
the hearing." (Emphasis added.) As the statute
contemplates the submission of a written statement with no
accompanying requirement that the victim be present for
cross-examination, the trial court's decision in this
case comported with the plain language of the statute. Thus,
what Keene must show, to be entitled to relief here, is that
the statute is unconstitutional.
Every statute is presumed to comport with the state and
federal constitutions unless clearly overcome by a contrary
showing. Hazelwood v. State, 3 N.E.3d 39, 41 (Ind.
Ct. App. 2014). The party challenging the constitutionality
of the statute bears the burden of proof, and all doubts are
resolved against that party. Id. at 42.
The right to confront witnesses is enshrined in both the
United States and Indiana Constitutions. U.S. Const. amend.
VI; Ind. Const. Art. I, Sec. 13(a). In both documents,
however, that right is granted only in the context of
criminal prosecutions. It has been found to extend to certain
civil settings, ...