Next, we consider Anderson’s challenge to the admission of the DNA evidence at trial. Specifically, Anderson argues that the DNA evidence was obtained in violation of Indiana Code Section 10-13-6-10, which requires only convicted felons to submit DNA samples. Anderson maintains that the collection of his DNA was not a “mistake” within the meaning of subsection (c) of that statute. . . . .
. . . .
Indiana Code Section 10-13-6-10 provides, in relevant part, that a person convicted of a felony, conspiracy to commit a felony, or attempt to commit a felony “shall provide a DNA sample” to the “agency that supervises the person, or the agency’s designee, if the person is on conditional release in accordance with Indiana Code Section 35-38-1-27.” Subsection (c) of the statute further states that “[t]he detention, arrest, or conviction of a person based on a data base match or data base information is not invalidated if a court determines that the DNA sample was obtained or placed in the Indiana DNA data base by mistake.” Ind. Code § 10-13-6-10(c).
We agree with the trial court that what happened in this case fits squarely within the “mistake” exception provided by Indiana Code Section 10-13-6-10. Ten months after Pepper was murdered, Anderson was charged with various crimes, including class D felony criminal confinement, in an unrelated case. Pursuant to a plea agreement, Anderson was sentenced according to the alternate misdemeanor sentencing statute, Indiana Code Section 35-50-2-7(b). [Footnote omitted.] Therefore, the resulting judgment of conviction entered by the trial court was for a class A misdemeanor. However, when Anderson appeared for his probation intake interview, probation officer Smith reviewed the order of probation received from the trial court. That document clearly indicated that Anderson had been convicted of criminal confinement as a class D felony with no mention of alternate misdemeanor sentencing. The record also reveals that the abstract of judgment received from the trial court stated that Anderson was convicted of criminal confinement as a class D felony with no mention of alternate misdemeanor sentencing. Unbeknownst to Smith, the information provided in those documents by the trial court was inaccurate. Smith relied on the information when he advised Anderson that, because he was convicted of a felony, he was required to submit a DNA sample. Anderson did not correct Smith or state that he had been convicted of only a misdemeanor. Instead, Anderson proceeded to another office and submitted to a buccal swab for DNA.
The record clearly establishes that Smith relied upon two court orders when advising Anderson that he was required to submit a DNA sample. As noted by the State, as a probation officer, Smith “serve[s] at the pleasure of the appointing court and [is] directly responsible to and subject to the orders of the court.” Ind. Code § 11-13-1-1(c). We disagree with Anderson’s contention that the buccal swab was taken with intentional or reckless disregard of his constitutional rights. Instead, the DNA evidence was obtained and placed in the DNA database by mistake. . . . .
MAY, J., and BROWN, J. concur.