                                                                           Mar 16 2015, 9:28 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      David Whitsett II                                         Gregory F. Zoeller
      Frankfort, Indiana                                        Attorney General of Indiana
                                                                Henry A. Flores, Jr.
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Johnnie M. Trout Jr.,                                     March 16, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                12A04-1409-MI-403
              v.                                                Appeal from the Clinton Superior
                                                                Court

      State of Indiana,                                         The Honorable Bradley Mohler,
                                                                Judge
      Appellee-Plaintiff.
                                                                Case No. 12C01-1401-MI-014




      Vaidik, Chief Judge.



                                           Case Summary
[1]   According to Indiana Code section 35-38-9-3(b)(3), a person is ineligible for

      mandatory expungement of their criminal records if they are “convicted of a

      felony that resulted in bodily injury to another person.” Johnnie M. Trout Jr.

      filed a petition to expunge records of his Class D felony convictions for criminal

      Court of Appeals of Indiana | Opinion 12A04-1409-MI-403 | March 16, 2015                    Page 1 of 9
      recklessness with a deadly weapon and pointing a firearm, and the trial court

      denied his petition. The trial court reasoned that although Trout was not

      convicted of a felony that resulted in bodily injury to another person, it could

      not “turn a blind eye” to the fact that Trout was acquitted of attempted murder

      for shooting and injuring someone during the same incident.


[2]   According to the plain language of the statute, the felonies that Trout was

      convicted of must have resulted in bodily injury to another person. However,

      the record shows that neither of his convictions resulted in bodily injury to

      another person. Therefore, these convictions do not disqualify Trout from

      mandatory expungement according to Section 35-38-9-3(b)(3). We therefore

      reverse and remand this case.



                             Facts and Procedural History
[3]   In 1997 the State charged Trout with four counts stemming from an incident

      that occurred at the Clinton County Fairgrounds under Case No. 12C01-9707-

      CF-065 (“Case No. 65”):

              Count I attempted murder
              [Trout] on or about the 13th day of July, 1997, in Clinton County,
              State of Indiana did attempt to commit the offense of Murder by
              knowingly attempting to kill . . . Kimberly Langkop and in furtherance
              of that attempt did perform a substantial step toward the commission
              of that crime by shooting said Kimberly Langkop with a .45 caliber
              handgun . . . .
              Count II Class D felony criminal recklessness with a deadly weapon
              [Trout] on or about the 13th day of July, 1997, in Clinton County,
              State of Indiana did recklessly with a deadly weapon, to-wit: .45
      Court of Appeals of Indiana | Opinion 12A04-1409-MI-403 | March 16, 2015         Page 2 of 9
              caliber pistol, perform an act, to-wit: did shoot a gun into the air; that
              created a substantial risk of bodily injury to another person . . . .
              Count III Class D felony pointing a firearm
              [Trout] on or about the 13th day of July, 1997, in Clinton County,
              State of Indiana did knowingly or intentionally point a firearm at
              another person, to-wit: Charles L. Minnix II . . . .
              Count IV Class D felony pointing a firearm
              [Trout] on or about the 13th day of July, 1997, in Clinton County,
              State of Indiana did knowingly or intentionally point a firearm at
              another person, to-wit: Michael Lawson . . . .
      Appellant’s App. p. 35-38. Following a jury trial in 1998, the jury convicted

      Trout of Counts II and III and acquitted him of Counts I and IV. Id. at 34.


[4]   Effective July 1, 2013, the Indiana General Assembly enacted Public Law 159-

      2013, which codified a new chapter in Indiana Code Title 35, Article 38

      entitled, “Chapter 9. Sealing and Expunging Conviction Records.” P.L. 159-

      2013, Sec. 4. This new law allows people convicted of certain crimes to have

      their records expunged. Taylor v. State, 7 N.E.3d 362, 363 (Ind. Ct. App. 2014).

      There are two general types of expungement available under Chapter 9:

      mandatory and discretionary. Compare Ind. Code § 35-38-9-3 with Ind. Code §

      35-38-9-5.1


[5]   Based on the new law, in January 2014 Trout filed a petition to expunge

      records of his Class D felony convictions for criminal recklessness with a deadly




      1
       Indiana Code section 35-38-9-5, a section that provides for discretionary expungement, requires the
      prosecuting attorney to consent in writing. But because the prosecuting attorney here did not consent, we do
      not review this case under Section 35-38-9-5.

      Court of Appeals of Indiana | Opinion 12A04-1409-MI-403 | March 16, 2015                         Page 3 of 9
weapon and pointing a firearm in Case No. 65. Appellant’s App. p. 7-9. Trout

filed his expungement petition according to Indiana Code section 35-38-9-3,

which provides for mandatory expungement. When Trout filed his petition,

Section 35-38-9-3(e) provided2:

         (e) If the court finds by clear and convincing evidence that:
                  (1) the period required by this section has elapsed;
                  (2) no charges are pending against the person;
                  (3) the person does not have an existing or pending driver’s
                  license suspension;
                  (4) the person has successfully completed the person’s sentence,
                  including any term of supervised release, and satisfied all other
                  obligations placed on the person as part of the sentence; and
                  (5) the person has not been convicted of a crime within the
                  previous eight (8) years;
         the court shall order the conviction records described in subsection (c)
         expunged in accordance with section 6 of this chapter.
Ind. Code Ann. § 35-38-9-3(e) (West Supp. 2013). The State does not dispute

that Trout meets these requirements. However, Section 35-38-9-3 does not

mandate expungement if the person’s conviction resulted in bodily harm to

another person:

         (b) This section does not apply to the following:
                                                  *****
                  (3) A person convicted of a felony that resulted in bodily injury to
                  another person.



2
  According to Alvey v. State, 15 N.E.3d 72, 74 (Ind. Ct. App. 2014), the version of the statute in effect when
the expungement petition is filed is controlling. Section 35-38-9-3 was amended effective March 26, 2014,
approximately two months after Trout filed his expungement petition.

Court of Appeals of Indiana | Opinion 12A04-1409-MI-403 | March 16, 2015                             Page 4 of 9
      Ind. Code Ann. § 35-38-9-3(b)(3) (West Supp. 2013) (emphasis added).3


[6]   The State objected to Trout’s expungement petition based on Section 35-38-9-

      3(b)(3). Specifically, the State argued that according to the probable-cause

      affidavit from Case No. 65, Trout shot a woman, who suffered bodily injury.

      Appellant’s App. p. 15. Therefore, the State’s argument continued, according

      to subsection (b)(3) Trout’s convictions were “ineligible to be expunged.” Id.


[7]   A two-day hearing on Trout’s expungement petition was held. At the hearing,

      defense counsel presented evidence from Case No. 65. The trial court took

      judicial notice of Case No. 65 and the filings. Tr. p. 15. Trout testified that he

      discharged the gun on two separate occasions: (1) when he fired warning shots

      into the air (Count II) and (2) when Kimberly grabbed his gun and it

      discharged, injuring her (Count I).4 Id. at 14-15. Defense counsel emphasized

      that no one was injured when Trout shot the gun into the air (Count II) or

      when Trout pointed the gun at Charles (Count III). Id. at 17-18. However, the

      State argued that it did not matter because Kimberly was shot and injured

      during the “same episode.” Id. at 16-17. The trial court framed the issue as

      whether “we look at the entire sequence of events . . . or just the actual

      particular charge . . . as it all relates to the bodily injury.” Id. at 18. The court

      took the issue under advisement.




      3
          Subsection (b)(3) is the same under the pre-amended and amended versions of Section 35-38-9-3.
      4
          The probable-cause affidavit also identifies two separate shootings. See Appellee’s App. p. 1.


      Court of Appeals of Indiana | Opinion 12A04-1409-MI-403 | March 16, 2015                             Page 5 of 9
[8]    The trial court later issued an order denying Trout’s expungement petition. The

       court ruled in part:

               7. That there is no dispute that [Trout’s] actions in firing a weapon
               resulted in bodily injury (and serious bodily injury) to another person.
               See: Count 1, Affidavit. The question is whether the Court is entitled
               to look at all of the charges and the facts surrounding the entire
               sequence of events, or, whether the Court is restricted to looking at
               only the charges for which [Trout] was convicted. [Trout] argues that
               Count 2, Criminal Recklessness, was strictly an act of firing a weapon
               into the air, and, as such, did not result in any type of injury. See:
               Exhibit A, jury instructions. The State argues that the Court should
               consider all charges and facts.
               8. That the Court recognizes there is little caselaw from the new
               expungement statutes. See: Taylor v. State, 7 N.E.3d 362 (Ind. Ct.
               App. 2014), which does not provide guidance for the issues raised
               herein.
               9. That while the Court recognizes the purpose of the expungement
               statutes [is] to provide defendants a second chance following a
               conviction, this Court does not believe it is appropriate to turn a blind
               eye to the facts of the entire case, i.e.[,] that a person suffered a
               gunshot wound, to allow for a mandatory expungement under I.C. §
               35-38-9-3.
                                                      *****
               12. That for the foregoing reasons, the Court does not find that [Trout]
               has satisfied the requirements under I.C. § 35-38-9-3 . . . .
       Appellant’s App. p. 3-4.
[9]    Trout now appeals.



                                  Discussion and Decision
[10]   Trout contends that the trial court erred in denying his expungement petition

       because the offenses he was convicted of—Class D felony criminal recklessness


       Court of Appeals of Indiana | Opinion 12A04-1409-MI-403 | March 16, 2015            Page 6 of 9
       with a deadly weapon and Class D felony pointing a firearm—did not result in

       bodily injury to another person, as the statute requires. That is, a person is not

       entitled to mandatory expungement if the “person [was] convicted of a felony

       that resulted in bodily injury to another person.” Ind. Code Ann. 35-38-9-3(b)(3)

       (West Supp. 2013) (emphasis added). The State responds that the statute is

       clear and unambiguous and that there is “no language which prohibits a trial

       court from considering the entirety of a petitioner’s course of conduct to

       determine if injury to another occurred.” Appellee’s Br. p. 3-4.


[11]   Interpretation of a statute is a question of law that we review de novo. Wall v.

       Plummer, 13 N.E.3d 420, 422 (Ind. Ct. App. 2014). We must first determine

       whether the statutory language is clear and unambiguous. Id. In interpreting

       the statute, we will attempt to determine and give effect to the intent of the

       legislature. Id. “The best evidence of legislative intent is surely the language of

       the statute itself.” Id. (quotation omitted). We must give all words their plain

       and ordinary meaning unless otherwise indicated by statute. Id. at 422-23.


[12]   We find that the language of the statute is clear and unambiguous, and we will

       not read into it a legislative intent other than that which is clearly stated.

       Indeed, the State does not cite, nor can we find, any other provision of the

       statute that supports its interpretation of the statute. In other words, looking at

       the statute as a whole, this provision does not require a different interpretation.

       According to the language of the statute, a person is ineligible for mandatory

       expungement if they were convicted of a felony and that felony resulted in

       bodily injury to another person. The use of “that” in the statute is a restrictive

       Court of Appeals of Indiana | Opinion 12A04-1409-MI-403 | March 16, 2015     Page 7 of 9
       clause: “A person convicted of a felony that resulted in bodily injury to another

       person.” “A restrictive clause is essential to the grammatical and logical

       completeness of a sentence.” Bryan A. Garner, Garner’s Modern American Usage

       806 (3d ed. 2009). Therefore, the two felonies that Trout was convicted of must

       have resulted in bodily injury to another person in order for him to be ineligible

       for mandatory expungement. Trout was convicted of Class D felony criminal

       recklessness with a deadly weapon and Class D felony pointing a firearm;

       however, the record shows that neither of these convictions resulted in bodily

       injury to another person. Therefore, these convictions do not disqualify Trout

       from mandatory expungement according to Section 35-38-9-3(b)(3). And

       because this is the only basis upon which the State challenges Trout’s petition to

       expunge records of his Class D felony convictions for criminal recklessness with

       a deadly weapon and pointing a firearm, we find that the trial court erred in

       denying Trout’s expungement petition.


[13]   We understand the State’s and the trial court’s concern that Trout does not

       dispute that he shot and injured Kimberly (albeit accidentally) in the same

       incident that led to his Class D felony convictions for criminal recklessness with

       a deadly weapon and pointing a firearm. But the only charge related to

       Kimberly’s shooting and bodily injury was attempted murder, and Trout was

       acquitted of this charge following a jury trial. Section 35-38-9-3(b)(3) clearly

       states that the felony conviction must result in bodily injury to another person.

       Here, none of Trout’s felony convictions resulted in bodily injury to another

       person. Therefore, facts from the same incident that do not result in a felony


       Court of Appeals of Indiana | Opinion 12A04-1409-MI-403 | March 16, 2015     Page 8 of 9
       conviction cannot be taken into consideration when determining whether a

       person is disqualified from expungement according to Section 35-38-9-3(b)(3).

       We therefore reverse the trial court’s denial of Trout’s expungement petition

       and remand this case to the trial court.


[14]   Reversed and remanded.


       Baker, J., and Riley, J., concur.




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