AW v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION FILED
Feb 14 2017, 10:10 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark F. James Curtis T. Hill, Jr.
Anderson Agostino & Keller PC Attorney General of Indiana
South Bend, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matter of A.W., February 14, 2017
Appellant-Respondent, Court of Appeals Case No.
20A03-1606-JV-1333
v. Appeal from the Elkhart Circuit
Court.
The Honorable Terry C. Shewmaker,
State of Indiana, Judge.
Appellee-Petitioner. The Honorable Deborah Domine,
Presiding Magistrate.
Cause No. 20C01-1604-JD-158
Darden, Senior Judge
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Statement of the Case
[1] A.W. appeals from the trial court’s order adjudicating him a delinquent for
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committing what would be the criminal offense of child molesting as a Class B
felony if committed by an adult. We affirm.
Issues
[2] A.W. presents an issue for our review, which we restate as the following two:
I. Whether there is sufficient evidence to support his
adjudication; and
II. Whether the Romeo and Juliet defense set forth in Indiana
Code section 35-42-4-9(e) (2014), which defines the
criminal offense of sexual misconduct with a minor,
should apply in this case.
Facts and Procedural History
[3] In May of 2014, A.W., who was fifteen years old, had sexual intercourse with
T.T., who at that time was a month past her thirteenth birthday. T.T. became
pregnant and gave birth in February 2015 to a child whom A.W. later admitted
he had fathered. A.W. was friends with T.T.’s older brother and shortly before
the incident he had attended T.T.’s birthday party at her home. At the party,
there were candles on T.T.’s birthday cake in the shape of numbers indicating
that it was her thirteenth birthday.
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Ind. Code § 35-42-4-3(a) (2007).
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[4] On June 5, 2015, pursuant to Indiana Code section 31-37-10-1 (2008), the State
filed a petition in St. Joseph County specifically alleging that A.W. was a
delinquent child for having committed what would be Class B felony child
molesting if committed by an adult. See Ind. Code § 35-42-4-3. After a hearing
on March 7, 2016, the probate court adjudicated A.W. a delinquent. Prior to
disposition, the case was transferred to the juvenile division in Elkhart County.
On May 17, 2016, the juvenile court ordered that A.W. be removed from his
home and be placed in an Indiana Department of Correction community-based
regional campus for treatment. A.W. now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[5] A.W. challenges the sufficiency of the evidence supporting his adjudication. In
order to establish that A.W. was a delinquent child, the State was required to
establish beyond a reasonable doubt that A.W. committed the criminal offense
of child molesting as a Class B felony. See Ind. Code § 31-37-14-1 (1997).
Child molesting, as alleged in this case, occurs when a person with a child
under the age of fourteen performs or submits to sexual intercourse. Ind. Code
§ 35-42-4-3(a). A.W. argues that there was insufficient evidence of his
culpability.
[6] On appeal from a juvenile adjudication, our review involves consideration of
only the evidence and reasonable inferences supporting the judgment. J.R.T. v.
State, 783 N.E.2d 300, 302 (Ind. Ct. App. 2003), trans. denied. We neither
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reweigh the evidence nor reassess the credibility of the witnesses. Id. If we
conclude that there is substantial evidence of probative value from which a
reasonable trier of fact could conclude that the juvenile had committed the act
beyond a reasonable doubt, we will affirm the adjudication. Id.
[7] There is no minimum age for the perpetrator of the offense in the child
molestation statute. State v. J.D., 701 N.E.2d 908, 909 (Ind. Ct. App. 1998).
Indeed, it appears that the legislature intended that the child molesting statute
would apply to offenders regardless of their age and would apply to offenders
who fall within the protected age group set forth by statute. Id. at 910. Further,
juvenile delinquency statutes explicitly state that a child commits a delinquent
act, if he or she commits an act that would be an offense if committed by an
adult before becoming eighteen years old. Ind. Code § 31-37-1-2 (1997).
[8] Additionally, consent is neither an element to be proved nor a defense to the
charge of child molestation. State v. J.D., 701 N.E.2d at 912. Nonetheless, T.T.
could not have consented to sexual intercourse because Indiana case law has
long since held that a female child under fourteen years of age cannot give
consent. Hanes v. State, 155 Ind. 112, 57 N.E. 704, 706 (1900).
[9] A.W. testified that he had sexual intercourse with T.T., which resulted in her
pregnancy and the birth of their child. T.T.’s mother testified that A.W.
attended T.T.’s thirteenth birthday party in April 2014, and that he was friends
with T.T.’s older brother. Further, A.W. does not dispute on appeal that he
had sexual intercourse with T.T. Appellant’s Br. p. 7.
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[10] Instead, A.W. argues that he was not culpable for the offense because he, too,
was a child. “Indiana has a well-established policy to protect the welfare of
children. The child molesting statute effectuates this policy by criminalizing the
sexual molestation of children.” State v. J.D., 701 N.E.2d at 910 (citation
omitted). We have previously observed that there is nothing to indicate
legislative intent to withdraw the protection provided to children by the statute
in order to protect the offender. Id. Indeed, there is nothing in the statute to
indicate that our legislature intended to exclude the offending “person” who
happens to fall within the protected age group. Id. Here, A.W. was just one
year beyond the protected age group. However, our decision is supported by
the juvenile statute, Indiana Code section 31-37-1-2, which acknowledges that
the offender is not yet an adult, but has committed the offense.
[11] There is sufficient evidence to support the juvenile court’s adjudication.
II. Romeo and Juliet Defense
[12] A.W. asks this Court to extend what has come to be known as the “Romeo and
Juliet” defense found in Indiana Code section 35-42-4-9, sexual misconduct
with a minor, to the facts of this case, although being charged under the child
molesting statute. However, that same defense does not appear in the child
molesting statute. The creation or making of laws in the State of Indiana is a
legislative function. Further, the decision to file delinquency or criminal
charges against an offender is left to the discretion of the prosecuting attorney
within the jurisdiction where the alleged offense occurred. Finding that we are
without authority to implement his request, we decline his invitation.
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[13] Specifically, A.W. was charged by the State with child molesting, not sexual
misconduct with a minor. The statute proscribing sexual misconduct with a
minor, as it was in effect at the time of the offense, refers to the child victim
being at least fourteen years of age but less than sixteen years of age engaging in
sexual intercourse. Ind. Code § 35-42-4-9.
[14] Note that the Romeo and Juliet defense as provided in subsection (e) of the
statute, states that all of the following conditions must apply:
(1) The person is not more than four (4) years older than the
victim.
(2) The relationship between the person and the victim was a
dating relationship or an ongoing personal relationship. The
term “ongoing personal relationship” does not include a family
relationship.
(3) The crime:
(A) was not committed by a person who is at least twenty-one
(21) years of age;
(B) was not committed by using or threatening the use of deadly
force;
(C) was not committed while armed with a deadly weapon;
(D) did not result in serious bodily injury;
(E) was not facilitated by furnishing the victim, without the
victim’s knowledge, with a drug (as defined in IC 16-42-19-2(1))
or a controlled substance (as defined in IC 35-48-1-9) or knowing
that the victim was furnished with the drug or controlled
substance without the victim's knowledge; and
(F) was not committed by a person having a position of authority
or substantial influence over the victim.
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(4) The person has not committed another sex offense (as defined
in IC 11-8-8-5.2) (including a delinquent act that would be a sex
offense if committed by an adult) against any other person.
[15] In summary, the sexual misconduct with a minor statute does not apply to the
facts of this case. At the time of the offense, T.T. was only thirteen years of
age. She testified that she and A.W. were friends but not in a dating
relationship. Further, the statute plainly states that “it is a defense to a
prosecution under this section” if all of the factors found therein apply. Ind. Code
§ 35-42-4-9(e) (emphasis added). The Romeo and Juliet defense is inapplicable
to this case.
Conclusion
[16] In light of the foregoing, the juvenile court’s adjudication is affirmed.
[17] Affirmed.
[18] May, J., and Mathias, J., concur.
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