Court of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 1 of 9 A TTORNEY FOR A PPELLANT Bruce A. Brightwell New Albany, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Alan Lee Berryman , Appellant

- Petitioner , v. 

### State of Indiana , Appellee

- Plaintiff June 21, 2019 Court of Appeals Ca se No. 18A

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- 2433 Appeal from the Clark Circuit Court The Honorable Vicki Carmichael, Judge Trial Court Cause No. 10C04

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May, Judge.

[1] Alan L ee Berryman appeals the trial court ’s denial of his petition to expunge the record of a case in which a jury found him n ot r esponsible by r eason of i nsanity (“NRRI”)

. Berryman raises one issue on appeal, whether a judgmentCourt of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 2 of 9 of NRRI is a “conviction” as the term is used in Ind iana Code section 35

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- 1. We affirm. 

# Facts and Procedural History
[2] On November 3, 2001, Berryman approached a man and his wife in a mall parking lot. State v. Berryman , 796 N.E.2d 741, 742 (Ind. Ct. App. 2003), opinion aff’d in part, vacated in part , 801 N.E.2d 170 (Ind. 2004). Berryman grabbed the man and accused him of trying to “set up” Berryman. Id

. Berryman then shot and killed the man

. Id . On November 7, 2001, the State charged Berryman with murder

. 1 A jury found Berryman not responsible by reason of insanity , so the court entered a judgment of NRRI

. S ubsequently , the court involuntarily committed Berryman to a state hospital. In re Commitment of Berryman , 797 N.E.2d 820 , 822 (Ind. Ct. App. 2003).

[3] On an undisclosed date thereafter, Berryman was released from his commitment , and he filed a Petition to Expunge/Seal Records pursuant to Indiana Code section 35

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- 1 in late 2017

. The St ate filed an objection , and the trial court held a hearing on June 14, 2018. On July 17, 2018, the trial court issued an order denying Berryman’s petition. 2 Berryman filed a motion to

1 Ind. Code § 35

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- 1. 2 We commend the trial court for crafting a thorough and conscientious order

.Court of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 3 of 9 correct error on August 8, 2018. Pursuant to Trial Rule 53.3 , the motion was deemed denied on September 24, 2018. 

# Discussion and Decision
[4] Indiana Code section 35

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- 1 allows an individual arrested for a crime, but not convicted, to seek expungement of the records related to the arrest and charge. The statute applies “ to a person who has been arrested, charged with an offense, or alleged to be a delinquent child, if: (1) the arrest, criminal charge, or juvenile delinquency allegation: (A) did not result in a convictio n or juvenile adjudication.” Ind. Code § 35

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- 1(a ) (emphasis added) . If the petitioner satisfies the conditions listed in the statute and does not have any pending criminal charges, the court “shall grant the petition.” Ind. Code § 35

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- 1(e). Berryman argues his NRRI judgment is not a “conviction” because it does not result in criminal punishment and, therefore, the plain language of Indiana Code section 35

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- 1 requires the court to grant his petition.

[5] While the question Berryman presents about Indiana Code section 35

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- 1 is one of first

- imp ression in Indiana, our standard for reviewing this class of questions is well settled. “Statutory interpretation is a question of law reserved for the court and is reviewed de novo

. De novo review allows us to decide an issue without affording any defer ence to the trial court’s decision.” Shaffer v. State , 795 N.E.2d 1072, 1076 (Ind. Ct. App. 2003) (internal citation omitted). Consequently, “the express language of the statute and the rules of statutory interpretation apply. We will examine the statute as a whole, and [we] avoidCourt of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 4 of 9 excessive reliance on a strict literal meaning or the selective reading of words.” Nash v. State , 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008) (internal citation omitted), trans. denied . If the statute’s language is clear and unambiguous, we apply the clear language of the statute. Id

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[6] At issue is the meaning of the term “conviction” in Indiana Code section 35

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- 1 and, a s former Chief Justice Shepard explained, “[t]he word ‘conviction’ is not a term of art, and its m ultiple definitions create some confusion.” Carter v. State , 750 N.E.2d 778, 779 (Ind. 2001) (holding, in the double jeopardy context, a conviction is a court judgment, not a jury verdict)

. Unfortunately, the legislature did not define “conviction” in In diana Code section 35

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- 1 or elsewhere in Title 35 of the Indiana Code. W hen the legislature has not provided the meaning of a term in a statute, w e may consult English dictionaries to determine a word’s plain and ordinary meaning. Naugle v. Beech Gro ve City Schools , 864 N.E.2d 1058, 1068 (Ind. 2007).

[7] Black’s Law Dictionary defines “conviction” as : “ 1. The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty

. 2. The judgment (as by a jury verdict) that a person is guilty of a crime.” Conviction , B LACK ’ S L AW D ICTIONARY (10th ed. 2014) (emphas e s in original)

. Webster’s Dictionary defines “conviction” as “the act of proving, finding, or adjudging a person guilty of an offense or crime.” Conviction , W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY OF THE E NGLISH L ANGUAGE U NABRIDGED (1 st ed. 1976); see also Conviction , M ERRIAM W EBSTER O NLINE D ICTIONARY (available at https://www.merriam

-Court of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 5 of 9 webster.com/dictionary/conviction ) (“the act or process of finding a person guilty of a crime especially in a court of law”) (last visited May 17, 2019). Thus, i n common vernacular, “conviction” is used to mean either a finding of guilt of a crime or a court judgment that leads to criminal punishment.

[8] Where, as here, there is more than one reasonable interpretation of a term in a statute, we must construe the statute to give effect to the General Assembly’s int ent. See Nash , 881 N.E.2d at 1063. We presume the legislature intends for “the language used in the statute to be applied logically and not to bring about an absurd or unjust result.” Id

. Therefore, “we must keep in mind the objective and purpose of th e law as well as the effect and repercussions of such a construction.” Id

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[9] Applying these principles of statutory construction , we must conclude the legislature intended “conviction” as used in Indiana Code section 35

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- 1 to encompass a NRRI judgment because to hold otherwise would be absurd and unjust , which could not have been the legislature’s intent

. As we have previously observed, the intent of Indiana Code section 35

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- 1 is to allow an individual who satisfies certain criteria to escape the s tigma associated with an overturned conviction or an arrest that does not result in a conviction. B.S. v. State , 95 N.E.3d 177, 180 (Ind. Ct. App. 2018). See also Commonwealth v. W.P. , 612 A.2d 438, 441 (Pa. Super. Ct. 1992) (observing “we may not merely close our eyes to the whole thrust of the expungement process, i.e., to exculpate an innocent individual from the jaws of unwarranted punishment which manifests itself and flows from the retention of one’s arrest record”).Court of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 6 of 9 [10] O ther states have interpreted their expungement statutes to not extend to NRRI or similar judgments because those defendants are institutionalized in mental health facilities after committing the criminal acts for which they are found not responsible due to insanity

. For e xample, i n Commonwealth v. B.C. , Pennsylvania authorities arrested B.C. and charged him with aggravated assault, simple assault, and recklessly endangering another person. 936 A.2d 1070, 1071 (Pa. Super. Ct. 2007) . He was found not guilty by reason of in sanity. Id . He petitioned for expungement, the trial court denied his petition, and the Pennsylvania Superior Court affirmed. Id. at 1072. The Superior Court observed that an acquitted defendant is vindicated and free to walk out of the courtroom. Id. at 1073. However, a defendant found not guilty by reason of insanity is confined to a mental institution until the defendant regains sanity and no longer poses a danger to himself or others

. Id. at 1074.

[11] Similarly, in Eastlack v. Commonwealth , Virgini a charged Eastlack with malicious wounding and the trial court found him to be not guilty by reason of insanity. 282 Va. 120, 122

- 23 (2011). He subsequently petitioned to have the police and court records related to his criminal case expunged. Id. at 12 3

. The Virginia Supreme Court noted certain restrictions placed on people found not guilty by reason of insanity, such as they cannot possess or purchase firearms. Id. at 125. Further, under Virginia’s statutory scheme, a “person found not guilty by
rea son of insanity could, immediately after the entry of judgment , seek expungement and, if successful, avoid all the constraints upon his liberty imposed by the ‘not guilty by reason of insanity’ laws.” Id

. Consequently, theCourt of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 7 of 9 court held individuals found not guilty by reason of insanity were not eligible to have their police and court records expunged. Id. at 126

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[12] Likewise, the New Hampshire Supreme Court held an individual found not guilty by reason of insani ty was not entitled to have his record annulled. State v. Bulcroft , 166 N.H. 612, 617 (2014). In so holding, the court noted that if it were to rule in Bul croft’s favor and allow him to annul the record immediately after the verdict , it would effectively “nullify a process established to protect society from those individuals who se release would create a substantial risk of injury to others.” Id. at 615.

[13] These policy concerns apply equally in Indiana , and we find them persuasive. A NRRI verdict is n ot equivalent to a “ not guilty ” verdict. If the State fails to prove each element of the criminal offense beyond a reasonable doubt, then the jury must render a verdict of not guilty. Ind. Code § 35

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- 1 (a)

. A NRRI verdict signifies that the defendant committed the criminal act, but the defendant is not legally responsible because “as a result of mental disease or defect, [the defendant] was unable to appreciate the wrongfulness of the conduct at the time of the offense.” I nd. Code § 35

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- 6. If Berryman’s expungement petition were granted , the record of his heinous crime would be sealed and unavailable to the public

. Th e legislature could not have intended such a result

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[14] People have a right to know if their neighbors have committed violent acts and to use this knowledge to ensure their own safety. See Wallace v. State , 905Court of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 8 of 9 N.E.2d 371, 383 (Ind. 2009) (noting “registration systems are a legitimate way to protect the public from sex offenders”), reh’g denied

. Murder is a serious crime, and a m urder conviction is one of the few c onvictions that can never be expunged. See Ind. Code § 35

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- 5 (b) & Ind. Code § 35

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- 4 (stating those convicted of a homicide offense are not eligible to have convictions expunged ). Berryman remained in state custody after the NRRI verdict because he remained a threat to public safety.

[15] Additionally, if we were to accept Berryman’s interpretation of the statute, an individual found NRRI could petition for expungement much earlier tha n a person convicted of a crime. Indiana Code section 35

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- 1 provides a n individual is eligible to petition for expungement “[n]ot earlier than one (1) year after the date of arrest, criminal charge, or juvenile delinquency allegation (whichever is lat er), if the person was not convicted or adjudicated a delinquent child, or the date of the opinion vacating the conviction or adjudication becomes final.” In comparison , individuals convicted of crimes eligible for expungement must wait 5 years to have the conviction expunged if it was a misdemeanor, eight years if the conviction was a felony, and ten years if the conviction was a felony resulting in serious bodily injury or committed by an elected official or candidate for publ ic office. See Ind. Code §§ 35

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- 5. Even if found NRRI, an individual can still pose a danger to society , and perhaps t his is why individual s found NRRI are excluded from the definition of “proper person” for purposes of Indiana’s firearm sta tutes. Ind. Code. § 35

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- 7.Court of Appeals of Indiana | Opin ion 18A

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- 243 3 | June 21, 2019 Page 9 of 9 [16] At the hearing, Berryman argued he has trouble obtaining housing and employment because of the record of his charge. This is like B.C.’s argument that his arrest and his subsequent not guilty by reason of insanity verdict interfered with his ability to obtain better employment. B.C. , 936 A.2d at 1072. However, like the Superior Court of Pennsylvania, we are not persuaded that permitting Berryman to expunge his record is in the best interest of public safety. Consequently , we construe the term “conviction” to include a NRRI verdict for purposes of Indiana Code section 35

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. See Nash , 881 N.E.2d at 106 2

- 64 (holding statutory definition of corrections officer included a nurse who worked in a prison but was employed by a staffing agency rather than the d epartment of c orrection )

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# Conclusion
[17] In solidarity with our sister states , we hold that an individual adjudicated NRRI may not have th at finding expunged pursuant to Ind iana Code section 35

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. T o hold otherwise would be contrary to public policy , ab surd , and unjust , which our legislature could not have intended

. Accordingly, the trial court is affirmed.

[18] Affirmed.
Mathias, J., and Brown, J., concur

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