Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 1 of 9

ATTORNEY FOR APPELLANT

Bruce A. Brightwell

New Albany, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-XP-2433

Appeal from the Clark Circuit 

Court

The Honorable Vicki Carmichael, 

Judge

Trial Court Cause No.

10C04-1712-XP-97

May, Judge.

[1] Alan Lee Berryman appeals the trial court’s denial of his petition to expunge 

the record of a case in which a jury found him not responsible by reason of 

insanity (“NRRI”). Berryman raises one issue on appeal, whether a judgment 
Court of Appeals of Indiana | Opinion 18A-XP-2433 | June 21, 2019 Page 2 of 9

of NRRI is a “conviction” as the term is used in Indiana Code section 35-38-9-

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. Subsequently, 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 35-38-9-1 in late 2017. The State 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 § 35-42-1-1. 

2 We commend the trial court for crafting a thorough and conscientious order.
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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 35-38-9-1 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 conviction or juvenile 

adjudication.” Ind. Code § 35-38-9-1(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 § 35-38-9-1(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 35-38-9-1 requires the court to grant his petition. 

[5] While the question Berryman presents about Indiana Code section 35-38-9-1 is 

one of first-impression 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 deference 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] avoid 
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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. 

[6] At issue is the meaning of the term “conviction” in Indiana Code section 35-38-

9-1 and, as former Chief Justice Shepard explained, “[t]he word ‘conviction’ is 

not a term of art, and its multiple 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 Indiana Code section 35-38-9-1 or 

elsewhere in Title 35 of the Indiana Code. When the legislature has not 

provided the meaning of a term in a statute, we may consult English 

dictionaries to determine a word’s plain and ordinary meaning. Naugle v. Beech 

Grove 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, BLACK’S LAW DICTIONARY (10th ed. 2014) (emphases in 

original). Webster’s Dictionary defines “conviction” as “the act of proving, 

finding, or adjudging a person guilty of an offense or crime.” Conviction, 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH 

LANGUAGE UNABRIDGED (1st ed. 1976); see also Conviction, MERRIAMWEBSTER ONLINE DICTIONARY (available at https://www.merriam-
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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, in 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 

intent. 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 the law as well as the effect and repercussions of such a 

construction.” Id.

[9] Applying these principles of statutory construction, we must conclude the 

legislature intended “conviction” as used in Indiana Code section 35-38-9-1 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 35-38-9-1 is to allow an 

individual who satisfies certain criteria to escape the stigma 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”). 
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[10] Other 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 example, in 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 

insanity. 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, Virginia 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 123. 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 

reason 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, the 
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court held individuals found not guilty by reason of insanity were not eligible to 

have their police and court records expunged. Id. at 126.

[12] Likewise, the New Hampshire Supreme Court held an individual found not 

guilty by reason of insanity 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 Bulcroft’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 whose 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 not 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 § 35-41-4-1(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.” Ind. Code § 35-41-3-6. If Berryman’s 

expungement petition were granted, the record of his heinous crime would be 

sealed and unavailable to the public. The legislature could not have intended 

such a result. 

[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, 905 
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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 murder conviction is one of the few convictions that can never be 

expunged. See Ind. Code § 35-38-9-5(b) & Ind. Code § 35-38-9-4 (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 than a 

person convicted of a crime. Indiana Code section 35-38-9-1 provides an 

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 later), 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 public office. See Ind. Code §§ 35-38-9-2 to 35-

38-9-5. Even if found NRRI, an individual can still pose a danger to society,

and perhaps this is why individuals found NRRI are excluded from the 

definition of “proper person” for purposes of Indiana’s firearm statutes. Ind. 

Code. § 35-47-1-7.
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[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 35-38-9-1. See Nash, 881 N.E.2d at 

1062-64 (holding statutory definition of corrections officer included a nurse who 

worked in a prison but was employed by a staffing agency rather than the 

department of correction).

Conclusion

[17] In solidarity with our sister states, we hold that an individual adjudicated NRRI

may not have that finding expunged pursuant to Indiana Code section 35-38-9-

1. To hold otherwise would be contrary to public policy, absurd, and unjust, 

which our legislature could not have intended. Accordingly, the trial court is 

affirmed.

[18] Affirmed.

Mathias, J., and Brown, J., concur.