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Keene v. State

Court of Appeals of Indiana

January 23, 2019

Jason Arthur Keene, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent

          Appeal 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 Indianapolis, Indiana

          BAKER, JUDGE.

         [¶1] 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.

         Facts

         [¶2] 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 victim.

         [¶3] 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.

         [¶4] 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.

         Discussion and Decision

         [¶5] 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 cross-examine her.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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, ...


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