Question: Can You Have A Felony Resulting In Bodily Injury Expunged From Your Criminal Record?
Answer: No, But In This Case Yes!
In 1997 the State charged Johnnie Trout with 4 counts that included criminal recklessness with a deadly weapon based upon Trout recklessly with a deadly weapon, to-wit: .45 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…. and felony pointing a firearm based upon Trout knowingly or intentionally point a firearm at another person, to-wit: Charles L. Minnix II…. Following a jury trial in 1998, the jury convicted Trout of these 2 Counts and acquitted him of the other 2 Counts. Effective July 1, 2013, the Indiana General Assembly enacted a new law that allows people convicted of certain crimes to have their records expunged. There are 2 general types of expungement available under Chapter 9: mandatory and discretionary. 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 weapon and pointing a firearm. 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) provided:
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.
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:
This section does not apply to the following: (3) A person convicted of a felony that resulted in bodily injury to another person.
After a 2 day hearing, the trial court issued an order denying Trout’s expungement petition.
On appeal, Trout contends that the trial court erred in denying his expungement petition because the offenses he was convicted of—Class D felony criminal recklessness with a deadly weapon and Class D felony pointing a firearm—did not result in bodily injury to another person, as the statute requires. The Court of Appeals stated that it understands 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 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. 28 N.E.3d 267 (Ind.App. 2015)