Introduced Version






HOUSE BILL No. 1284

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 35-42-2-1; IC 35-50-2-9.

Synopsis: Battery. Makes it battery, a Class D felony, for a person to knowingly or intentionally touch another person in a rude, an insolent, or an angry manner if the person, with intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person, touches: (1) the other person's genitals or buttocks; or (2) if the other person is a female, the other person's breast.

Effective: July 1, 2009.





Van Haaften




    January 13, 2009, read first time and referred to Committee on Courts and Criminal Code.







Introduced

First Regular Session 116th General Assembly (2009)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
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HOUSE BILL No. 1284



    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 35-42-2-1; (09)IN1284.1.1. -->     SECTION 1. IC 35-42-2-1, AS AMENDED BY P.L.120-2008, SECTION 93, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 1. (a) A person who knowingly or intentionally touches another person in a rude, an insolent, or an angry manner commits battery, a Class B misdemeanor. However, the offense is:
        (1) a Class A misdemeanor if:
            (A) it results in bodily injury to any other person;
            (B) it is committed against a law enforcement officer or against a person summoned and directed by the officer while the officer is engaged in the execution of the officer's official duty;
            (C) it is committed against an employee of a penal facility or a juvenile detention facility (as defined in IC 31-9-2-71) while the employee is engaged in the execution of the employee's official duty;
            (D) it is committed against a firefighter (as defined in IC 9-18-34-1) while the firefighter is engaged in the execution

of the firefighter's official duty;
            (E) it is committed against a community policing volunteer:
                (i) while the volunteer is performing the duties described in IC 35-41-1-4.7; or
                (ii) because the person is a community policing volunteer; or
            (F) it is committed against the state chemist or the state chemist's agent while the state chemist or the state chemist's agent is performing a duty under IC 15-16-5;
        (2) a Class D felony if it results in bodily injury to:
            (A) a law enforcement officer or a person summoned and directed by a law enforcement officer while the officer is engaged in the execution of the officer's official duty;
            (B) a person less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age;
            (C) a person of any age who has a mental or physical disability and is committed by a person having the care of the person with a mental or physical disability, whether the care is assumed voluntarily or because of a legal obligation;
            (D) the other person and the person who commits the battery was previously convicted of a battery in which the victim was the other person;
            (E) an endangered adult (as defined in IC 12-10-3-2);
            (F) an employee of the department of correction while the employee is engaged in the execution of the employee's official duty;
            (G) an employee of a school corporation while the employee is engaged in the execution of the employee's official duty;
            (H) a correctional professional while the correctional professional is engaged in the execution of the correctional professional's official duty;
            (I) a person who is a health care provider (as defined in IC 16-18-2-163) while the health care provider is engaged in the execution of the health care provider's official duty;
            (J) an employee of a penal facility or a juvenile detention facility (as defined in IC 31-9-2-71) while the employee is engaged in the execution of the employee's official duty;
            (K) a firefighter (as defined in IC 9-18-34-1) while the firefighter is engaged in the execution of the firefighter's official duty;
            (L) a community policing volunteer:
                (i) while the volunteer is performing the duties described in

IC 35-41-1-4.7; or
                (ii) because the person is a community policing volunteer; or
            (M) a family or household member (as defined in IC 35-41-1-10.6) if the person who committed the offense:
                (i) is at least eighteen (18) years of age; and
                (ii) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense;
        (3) a Class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon;
        (4) a Class B felony if it results in serious bodily injury to a person less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age;
        (5) a Class A felony if it results in the death of a person less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age;
        (6) a Class C felony if it results in serious bodily injury to an endangered adult (as defined in IC 12-10-3-2);
        (7) a Class B felony if it results in the death of an endangered adult (as defined in IC 12-10-3-2); and
        (8) a Class C felony if it results in bodily injury to a pregnant woman and the person knew the woman was pregnant; and
        (9) a Class D felony if the person, with intent to arouse or satisfy the person's own sexual desires or the sexual desires of the other person, touches:
            (A) the other person's genitals or buttocks; or
            (B) if the other person is a female, the other person's breast.

    (b) For purposes of this section:
        (1) "law enforcement officer" includes an alcoholic beverage enforcement officer; and
        (2) "correctional professional" means a:
            (A) probation officer;
            (B) parole officer;
            (C) community corrections worker; or
            (D) home detention officer.

SOURCE: IC 35-50-2-9; (09)IN1284.1.2. -->     SECTION 2. IC 35-50-2-9, AS AMENDED BY P.L.99-2007, SECTION 213, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 9. (a) The state may seek either a death sentence or a sentence of life imprisonment without parole for murder by alleging, on a page separate from the rest of the charging

instrument, the existence of at least one (1) of the aggravating circumstances listed in subsection (b). In the sentencing hearing after a person is convicted of murder, the state must prove beyond a reasonable doubt the existence of at least one (1) of the aggravating circumstances alleged. However, the state may not proceed against a defendant under this section if a court determines at a pretrial hearing under IC 35-36-9 that the defendant is an individual with mental retardation.
    (b) The aggravating circumstances are as follows:
        (1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following:
            (A) Arson (IC 35-43-1-1).
            (B) Burglary (IC 35-43-2-1).
            (C) Child molesting (IC 35-42-4-3).
            (D) Criminal deviate conduct (IC 35-42-4-2).
            (E) Kidnapping (IC 35-42-3-2).
            (F) Rape (IC 35-42-4-1).
            (G) Robbery (IC 35-42-5-1).
            (H) Carjacking (IC 35-42-5-2).
            (I) Criminal gang activity (IC 35-45-9-3).
            (J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
        (2) The defendant committed the murder by the unlawful detonation of an explosive with intent to injure person or damage property.
        (3) The defendant committed the murder by lying in wait.
        (4) The defendant who committed the murder was hired to kill.
        (5) The defendant committed the murder by hiring another person to kill.
        (6) The victim of the murder was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge, or law enforcement officer, and either:
            (A) the victim was acting in the course of duty; or
            (B) the murder was motivated by an act the victim performed while acting in the course of duty.
        (7) The defendant has been convicted of another murder.
        (8) The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.
        (9) The defendant was:
            (A) under the custody of the department of correction;


            (B) under the custody of a county sheriff;
            (C) on probation after receiving a sentence for the commission of a felony; or
            (D) on parole;
        at the time the murder was committed.
        (10) The defendant dismembered the victim.
        (11) The defendant burned, mutilated, or tortured the victim while the victim was alive.
        (12) The victim of the murder was less than twelve (12) years of age.
        (13) The victim was a victim of any of the following offenses for which the defendant was convicted:
            (A) Except for battery as a Class D felony under IC 35-42-2-1(a)(9), battery as a Class D felony or as a Class C felony under IC 35-42-2-1.
            (B) Kidnapping (IC 35-42-3-2).
            (C) Criminal confinement (IC 35-42-3-3).
            (D) A sex crime under IC 35-42-4.
        (14) The victim of the murder was listed by the state or known by the defendant to be a witness against the defendant and the defendant committed the murder with the intent to prevent the person from testifying.
        (15) The defendant committed the murder by intentionally discharging a firearm (as defined in IC 35-47-1-5):
            (A) into an inhabited dwelling; or
            (B) from a vehicle.
        (16) The victim of the murder was pregnant and the murder resulted in the intentional killing of a fetus that has attained viability (as defined in IC 16-18-2-365).
    (c) The mitigating circumstances that may be considered under this section are as follows:
        (1) The defendant has no significant history of prior criminal conduct.
        (2) The defendant was under the influence of extreme mental or emotional disturbance when the murder was committed.
        (3) The victim was a participant in or consented to the defendant's conduct.
        (4) The defendant was an accomplice in a murder committed by another person, and the defendant's participation was relatively minor.
        (5) The defendant acted under the substantial domination of another person.
        (6) The defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.
        (7) The defendant was less than eighteen (18) years of age at the time the murder was committed.
        (8) Any other circumstances appropriate for consideration.
    (d) If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing. The jury or the court may consider all the evidence introduced at the trial stage of the proceedings, together with new evidence presented at the sentencing hearing. The court shall instruct the jury concerning the statutory penalties for murder and any other offenses for which the defendant was convicted, the potential for consecutive or concurrent sentencing, and the availability of good time credit and clemency. The court shall instruct the jury that, in order for the jury to recommend to the court that the death penalty or life imprisonment without parole should be imposed, the jury must find at least one (1) aggravating circumstance beyond a reasonable doubt as described in subsection (l) and shall provide a special verdict form for each aggravating circumstance alleged. The defendant may present any additional evidence relevant to:
        (1) the aggravating circumstances alleged; or
        (2) any of the mitigating circumstances listed in subsection (c).
    (e) For a defendant sentenced after June 30, 2002, except as provided by IC 35-36-9, if the hearing is by jury, the jury shall recommend to the court whether the death penalty or life imprisonment without parole, or neither, should be imposed. The jury may recommend:
        (1) the death penalty; or
        (2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly. After a court pronounces sentence, a representative of the victim's family and friends may present a statement regarding the impact of the crime on family and friends. The impact statement may be submitted in writing or given orally by the representative. The statement shall be given in the presence of the defendant.
    (f) If a jury is unable to agree on a sentence recommendation after reasonable deliberations, the court shall discharge the jury and proceed

as if the hearing had been to the court alone.
    (g) If the hearing is to the court alone, except as provided by IC 35-36-9, the court shall:
        (1) sentence the defendant to death; or
        (2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (l).
    (h) If a court sentences a defendant to death, the court shall order the defendant's execution to be carried out not later than one (1) year and one (1) day after the date the defendant was convicted. The supreme court has exclusive jurisdiction to stay the execution of a death sentence. If the supreme court stays the execution of a death sentence, the supreme court shall order a new date for the defendant's execution.
    (i) If a person sentenced to death by a court files a petition for post-conviction relief, the court, not later than ninety (90) days after the date the petition is filed, shall set a date to hold a hearing to consider the petition. If a court does not, within the ninety (90) day period, set the date to hold the hearing to consider the petition, the court's failure to set the hearing date is not a basis for additional post-conviction relief. The attorney general shall answer the petition for post-conviction relief on behalf of the state. At the request of the attorney general, a prosecuting attorney shall assist the attorney general. The court shall enter written findings of fact and conclusions of law concerning the petition not later than ninety (90) days after the date the hearing concludes. However, if the court determines that the petition is without merit, the court may dismiss the petition within ninety (90) days without conducting a hearing under this subsection.
    (j) A death sentence is subject to automatic review by the supreme court. The review, which shall be heard under rules adopted by the supreme court, shall be given priority over all other cases. The supreme court's review must take into consideration all claims that the:
        (1) conviction or sentence was in violation of the:
            (A) Constitution of the State of Indiana; or
            (B) Constitution of the United States;
        (2) sentencing court was without jurisdiction to impose a sentence; and
        (3) sentence:
            (A) exceeds the maximum sentence authorized by law; or
            (B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the sentencing court for the defendant's execution under subsection (h), the supreme court shall stay the execution of the death sentence and set a

new date to carry out the defendant's execution.
    (k) A person who has been sentenced to death and who has completed state post-conviction review proceedings may file a written petition with the supreme court seeking to present new evidence challenging the person's guilt or the appropriateness of the death sentence if the person serves notice on the attorney general. The supreme court shall determine, with or without a hearing, whether the person has presented previously undiscovered evidence that undermines confidence in the conviction or the death sentence. If necessary, the supreme court may remand the case to the trial court for an evidentiary hearing to consider the new evidence and its effect on the person's conviction and death sentence. The supreme court may not make a determination in the person's favor nor make a decision to remand the case to the trial court for an evidentiary hearing without first providing the attorney general with an opportunity to be heard on the matter.
    (l) Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that:
        (1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and
        (2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.

SOURCE: ; (09)IN1284.1.3. -->     SECTION 3. [EFFECTIVE JULY 1, 2009] IC 35-42-2-1, as amended by this act, applies only to crimes committed after June 30, 2009.