Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019 Page 1 of 5

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Joe Duepner

Duepner Law LLC

Noblesville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Henry A. Flores, Jr.

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Charles Holmes,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

February 27, 2019

Court of Appeals Case No.

18A-XP-1316

Appeal from the Elkhart Superior 

Court

The Honorable Teresa L. Cataldo, 

Judge

Trial Court Cause No.

20D03-1801-XP-4

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019 Page 2 of 5

[1] Charles Holmes appeals the trial court’s order denying his petition to expunge 

his Class A Misdemeanor Domestic Battery conviction and his Class D Felony 

Domestic Battery conviction. Finding that the trial court should have granted 

expungement of the misdemeanor conviction and finding no error with respect 

to the felony conviction, we affirm in part, reverse in part, and remand with 

instructions.

[2] On January 10, 2006, Holmes was convicted of Class A misdemeanor domestic 

battery against his wife. In November 2006, Holmes committed domestic 

battery once again. This time, the State charged him with Class D felony 

domestic battery due to his prior battery conviction. On April 13, 2009, Holmes 

was convicted of Class D felony domestic battery. 

[3] On January 26, 2018, Holmes filed a petition to expunge his misdemeanor and 

felony domestic battery convictions pursuant to Indiana Code sections 35-38-9-

2 and -3, respectively. The State objected to expungement of the felony 

conviction,1 arguing that the statute under which he sought relief did not apply 

to convictions for felonies that resulted in bodily injury. Shortly thereafter, 

Holmes moved for summary judgment, proffering no other facts but asking for 

immediate relief. On February 8, 2018, the trial court entered an order denying 

expungement for both offenses. Holmes now appeals.

 

1 The State did not object to expungement of the misdemeanor conviction.
Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019 Page 3 of 5

[4] We will reverse a lower court’s ruling denying a petition to expunge only where 

the decision is clearly against the logic and effect of the facts and circumstances 

before it. Cline v. State, 61 N.E.3d 360, 362 (Ind. Ct. App. 2016). We review 

matters of statutory interpretation de novo because they present pure questions 

of law. Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010).

[5] First, regarding the denial of expungement for the felony conviction, Holmes’s 

argument is unavailing. The 2006 version of the domestic battery statute says:

(a) A person who knowingly or intentionally touches an individual 

who: 

(1) is or was a spouse of the other person; . . . 

in a rude, insolent, or angry manner that results in bodily injury to the 

person . . . commits domestic battery, a Class A misdemeanor. 

(b) However, the offense under subsection (a) is a Class D felony if 

the person who committed the offense: 

(1) has a previous, unrelated conviction: 

(A) under this section . . . .

Ind. Code § 35-42-2-1.3 (2006) (emphasis added).

[6] So, to convict Holmes of Class D felony domestic battery in 2006, the State had 

to prove all the elements of Class A misdemeanor domestic battery, including 

the element that the touching resulted in bodily injury to the victim. Plus, the 

defendant had to have a prior, unrelated domestic battery conviction on his 

record. Indiana Code section 35-38-9-3(b)(3) states that expungement of a Class 
Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019 Page 4 of 5

D felony conviction is not available for “[a] person convicted of a felony that 

resulted in bodily injury to another person.” Though Holmes’s charge was 

elevated from a misdemeanor to a felony because of his prior criminal history, 

the State was nonetheless required to prove that his actions resulted in bodily 

injury to another person, namely, his wife. As such, the trial court did not err in 

denying Holmes’s petition to expunge the felony conviction because the 

expungement statute under which he seeks relief is not applicable.

[7] Second, regarding the denial of expungement for the misdemeanor conviction,

the record does not indicate that the trial court examined this section of the 

petition pursuant to Indiana Code section 35-38-9-2. Rather, the trial court 

summarily denied expungement for the misdemeanor conviction without 

explanation. 

[8] Indiana Code section 35-38-9-2 says in pertinent part: 

(c) Not earlier than five (5) years after the date of conviction . . . 

the person convicted of the misdemeanor may petition a court to 

expunge all conviction records *** that relate to the person’s 

misdemeanor conviction.

***

(e) If the court finds by a preponderance of the evidence that: 

(1) the period required by this section has elapsed; 

(2) no charges are pending against the person; 

(3) the person has paid all fines, fees, and court costs, and 

satisfied any restitution obligation placed on the person as 

part of the sentence; and

(4) the person has not been convicted of a crime within the 

previous five (5) years . . . 
Court of Appeals of Indiana | Memorandum Decision 18A-XP-1316 | February 27, 2019 Page 5 of 5

the court shall order the conviction records described in subsection 

(c) expunged in accordance with section 6 of this chapter.

(Emphasis added.)

[9] We have previously held that this statute unambiguously mandates the trial 

court to expunge a misdemeanor conviction when all four requirements are 

met. Taylor v. State, 7 N.E.3d 362, 365-66 (Ind. Ct. App. 2014). The legislature 

clearly intended to make expungement non-discretionary in these instances 

because the statute uses the word “shall” rather than the word “may.” Id. 

Accordingly, the trial court did not have discretion to deny Holmes’s request to 

expunge this conviction if all requirements were met. 

[10] Upon further review, we find that Holmes fulfilled all the necessary 

requirements for expungement of his misdemeanor conviction. More than five 

years have elapsed since the date of his misdemeanor conviction, no current 

charges are pending against him, he satisfied his sentencing obligation, and he 

has not been convicted of a crime in the past five years. Therefore, the trial 

court was required to expunge Holmes’s misdemeanor conviction. 

[11] The judgment of the trial court is affirmed in part, reversed in part, and 

remanded with instructions to expunge the misdemeanor conviction.

May, J., and Tavitas, J., concur.