Appeals court upholds Judge Martin's decision; jail sex case may go to Indiana Supreme Court

The Indiana Court of Appeals ruled Wednesday in a split decision that no crime was committed when six inmates at the Greene County Jail sneaked into each other's cells to have sex in a case that was first exposed to authorities in November 2008.

However, Greene County Prosecutor Jarrod Holtsclaw announced on Thursday afternoon that the Indiana Attorney General's office will be asking for a transfer of the case to the Indiana Supreme Court.

"I have learned from the Attorney General's office, which handled the appeal, that they will be seeking transfer to the Indiana Supreme Court. The reason behind that is because this is a case of first impression, which means there are no Indiana cases deciding this particular point of the state statute," Holtsclaw told the Greene County Daily World. "The Attorney General's Office deems it is important to have it reviewed by the courts and in light of the fact the Court of Appeals decision was split, they believe it is important to pursue."

The prosecutor said by asking for a transfer it does not guarantee that the Supreme Court will agree to hear the case.

"If the Indiana Supreme Court chooses not to grant the transfer, that is the end of the road or the discussion on it (the case) and the law will be that you can leave your jail cell inside the jail building, you can not be charged with a crime," Holtsclaw explained. "If the Indiana Supreme Court grants transfer we're sort of back to square one and arguments will be made on both sides and it will be up to the Indiana Supreme Court to decide whether this is a crime or whether it is not."

By a 2-1 ruling, the Appeals Court upheld Greene Superior Court Judge Dena Martin's decision in January dismissing escape charges against three men and three women, who allegedly crawled through ceiling tiles from one cellblock to another to engage in late-night sexual activities after drinking a homemade alcoholic beverage known as "jail hooce."

Judge Martin, in her lower court decision, ruled the six inmates didn't commit a crime because they didn't intend to leave the jail facility.

Two appellate judges -- Chief Judge John G. Baker and Judge Patricia A. Riley agreed in a six-page ruling, but Judge Ezra Friedlander issued a lengthy 19-page dissent, reasoning that the inmates committed escape because they left the cells where they were ordered confined.

Judge Baker, who wrote the majority opinion, stated, "Under these circumstances we can only conclude that where, as here, inmates have not intent or plan to flee from detention in the penal facility in which they are confined, they cannot be guilty of the crime of escape when they merely enter restricted areas of the facility without permission. They may be in violation of facility rules and can be punished accordingly, but have not committed a crime. We acknowledge that the relevant statutes could be drafted more artfully and explicitly, but given the well-established rules that we construe penal statutes strictly against the State and that ambiguities should be resolved in favor the accused, close calls as this one should be resolved in the defendants' favor. Therefore, we find that the trial court did not abuse its discretion by dismissing the charges herein. The judgment of the trial court is affirmed."

In dissenting, Judge Friedlander wrote: "The inmates contend and the majority holds as a matter of first impression, that when a prisoner is in an area of special detention inside a correctional facility, leaving or intending to leave the facility is the element of this offense. I reach the opposite conclusion. I believe the inmates committed escape, i.e., intentionally fled from lawful detention, when they broke out of their cells to go to a different part of the facility and that the intent to leave the facility's outer boundaries is not an element of the offense as defined in Indiana Code 35-44-3-5."

He concluded, "I believe that when the inmates were locked in their cells in the Greene County Jail, they were lawfully detained therein, and if they broke out of the cell through the ceiling as alleged, they committed the offense of escape. I would reverse the trial court and reinstate the charges."

Holtsclaw said it could be several months before the Supreme Court will decide about the transfer and will likely be several more months before the case is actually heard if it is accepted.

Holtsclaw added, "The whole case boils down to two different views of what if meant by lawful detention. My position and the state's position is lawful detention can be placed anywhere within the four walls of the jail. Basically, where ever the sheriff puts you in the jail and you are confined there at his order ... the majority opinion is what the defendants had argued at trial was that we should take a broader view and you can not escape unless you absolutely walk away from the jail. If you leave your jail cell to go wherever you want, regardless of what the sheriff said, that's not a crime."

The prosecutor continued, "The real problem here and why this issue has gone as far as it has is there is no Indiana case that has ever come up on that point. When I had to make the charging decision and when Judge Martin had to make her decision, we had no Indiana cases to look at for guidance. So what we have created now, (is) jurisprudence at work. It may make its way to the Supreme Court and it may not."

The inmates were originally charged Nov. 14, 2008 with class C escape charges. They included:

* Misty M. Moore, 21, Bloomfield, who was being held on theft, possession of stolen property and forgery charges.

* William N. Hutcherson, Jr., 44, Bloomfield, who was being held for a probation violation.

* Jesse B. Ross, 38, Linton, who was being held for possession of a controlled substance.

* Alexander Rathburn, 17, Bloomfield, who was being held for burglary, theft and possession of stolen property.

* Kay C. Snyder, 27, Springville, who was being held for criminal recklessness and battery with bodily injury.

* Nicole Halderman, 26, Linton, who was being held for possession of a controlled substance.

The late-night encounter plot came to light Oct. 8, 2008 after several jail employees conducted a search of a male and female cellblock and uncovered letters that detailed the clandestine meetings that had been going on between the inmates out of the view of security cameras.

Letters recovered in a search of the female lockup cellblock indicated that the inmates had made their way through the ceiling area, making contact with each other -- including sexual activity, according to a probable cause affidavit filed by Greene County Sheriff's Department Det. George Dallaire.

The two cellblocks are located side by side and separated by a concrete wall, according to Greene County Sheriff Terry Pierce. He said it's the only area in the jail that has "dorm" style accommodates. There are six beds on the female side and 12 in the male cellblock.

The female inmates allegedly used the shower drain cover as a tool and then "head-butted" the ceiling tile to gain entry, according to court records. They are alleged to have placed laundry hamper on top of Halderman's bunk bed -- out of the view of a security camera -- and stood on it to reach the loosen ceiling tile and climb over the male cellblock.

Since this incident was discovered, the ceiling tiles have been reinforced and other security measures have been put in place to prevent a repeat of activity, Pierce pointed out.

Judge Martin, who had been on the bench just eight days before she rendered her trial court decision in the case, told the Greene County Daily World on Thursday morning that she is prevented by judicial ethics standards from publicly commenting on the Appeals Court decision.

This was her first trial court ruling to be reviewed by the state Appeals Court.