Thomas Albert Overton v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res Mar 22 2013, 9:33 am
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT W. GEVERS, II GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
MONICA PREKOPA TALBOT
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS ALBERT OVERTON, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1206-CR-530
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Thomas Hakes, Judge
Cause No. 35C01-1105-FA-91
March 22, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Thomas Overton appeals his conviction for Class C felony child molesting. We
affirm.1
Issue
Overton raises one issue, which we restate as whether his conviction for Class C
felony child molesting was barred by the statute of limitations.
Facts
T.I. was born in 1994. In December 2001, T.I. and his family moved into his
uncle’s house in Huntington County after their house caught on fire. They lived there
until the summer of 2003. Overton was their neighbor during that time.
T.I. often helped Overton with yard work, helped gather eggs, and helped care for
Overton’s horse. Overton would let T.I. ride his horse and had bonfires for the children.
One day in 2002 or 2003, T.I. mowed Overton’s yard and went into Overton’s house to
get paid for the mowing. Once inside the house, Overton pulled out a knife, grabbed T.I.,
and told T.I. to go upstairs. Overton told T.I. that, if he screamed, Overton would use the
knife. When they were upstairs in a bedroom, Overton told T.I. to take his clothes off
and go over to the bed, and T.I. complied. Overton then removed his own pants and
underwear. Overton put the knife down and told T.I. that the knife “had [T.I.’s] name all
over it,” and that if T.I. thought he “was going to fight” the knife had his “name written
all over it too.” Tr. p. 100.
1
We heard oral argument on February 25, 2013, in South Bend. We thank Indiana University South Bend
for its hospitality and thank counsel for their advocacy.
2
Overton made T.I. touch Overton’s penis. Overton then pushed T.I. onto the bed
and started touching T.I.’s penis. Suddenly, Overton got mad, pushed T.I. away, and told
T.I. to get out. Overton said if T.I. “told anybody that [he] wouldn’t graduate.” Id. at
102. T.I. got his clothes, left, and went home. T.I. did not tell his parents or anyone else
about the incident. Later, while T.I. and his brother were visiting Overton, T.I’s brother
saw photos of naked men on the kitchen counter and told their mother. She refused to
allow the children to go to Overton’s house anymore.
In March 2011, Bobbi Lamb, an employee with the Department of Child Services,
and Detective Matt Collins with the Indiana State Police were part of a Body Safe
Program presented at T.I.’s school. After the presentation, sixteen-year-old T.I. indicated
that he wanted to speak with someone. He spoke with Lamb and Collins about the
incident with Overton.
On May 16, 2011, the State charged Overton with Class A felony child molesting
and alleged that, between March 1, 2002, and August 31, 2003, Overton “performed or
submitted to fondling or touching of a child or himself with the intent to arouse or satisfy
his own sexual desires or the sexual desires of the child when the child was under
fourteen years of age.” Id. at 302. The charge was elevated from a Class C felony to a
Class A felony because it was alleged to have been committed by using or threatening the
use of deadly force or while armed with a deadly weapon.
After a bench trial, the trial court found Overton guilty only of Class C felony
child molesting. The trial court sentenced Overton to six years with two years suspended
to probation. Overton filed a motion to correct error, arguing that the trial court could not
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find him guilty of a Class C felony because the statute of limitations for that offense had
run before the State filed charges. The State argued that the statute of limitations was
tolled by Overton’s concealment of the offense through his threats to T.I. The trial court
denied Overton’s motion to correct error, and Overton now appeals.
Analysis
Overton argues that his conviction for a Class C felony was barred by the statute
of limitations. “For misdemeanors and most classes of felonies, Indiana has enacted
statutes of limitations, which permit the commencement of criminal proceedings against
defendants only within a fixed period of time from the commission of a crime.” Sloan v.
State, 947 N.E.2d 917, 920 (Ind. 2011). The primary purpose of these statutes is “to
protect defendants from the prejudice that a delay in prosecution could bring, such as
fading memories and stale evidence.” Id. The statutes also “ʻstrike[ ] a balance between
an individual’s interest in repose and the State’s interest in having sufficient time to
investigate and build its case.’” Id. (quoting Heitman v. State, 627 N.E.2d 1307, 1309
(Ind. Ct. App. 1994)). It is the State’s burden to establish that the crime charged was
committed within the statute of limitations. Lamb v. State, 699 N.E.2d 708, 709 (Ind. Ct.
App. 1998), trans. denied.
The Class A felony child molesting charge against Overton raised no statute of
limitations issue because “prosecution for a Class A felony may be commenced at any
time.” Ind. Code § 35-41-4-2(c). However, there is a different statute of limitations for a
Class C felony. Indiana Code Section 35-41-4-2(a) provides: “Except as otherwise
provided in this section, a prosecution for an offense is barred unless it is commenced . . .
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within five (5) years after the commission of the offense, in the case of a . . . Class C . . .
felony . . . .” The offense here was alleged to have occurred between March 1, 2002, and
August 31, 2003, but the prosecution was not commenced until May 16, 2011, well
outside of the five-year statute of limitations.
The State does not dispute that prosecution commenced more than five years after
the molestation. However, the State argues that the statute of limitations was tolled by
Indiana Code Section 35-41-4-2(h), which provides in part:
The period within which a prosecution must be commenced
does not include any period in which:
*****
(2) the accused person conceals evidence of the offense, and
evidence sufficient to charge the person with that offense is
unknown to the prosecuting authority and could not have
been discovered by that authority by exercise of due
diligence;
Our supreme court recently addressed the language of Indiana Code Section 35-41-4-
2(h)(2) and concluded that it is “free of ambiguity.” Sloan, 947 N.E.2d at 922. “The
tolling provision affords a bright-line rule: once concealment has been found, tolling ends
when evidence sufficient to charge the defendant becomes known to the prosecuting
authority if that authority could not have discovered the evidence by the exercise of due
diligence.” Id. (footnote omitted).
5
The issue here is whether Overton “concealed evidence of the offense.”2 I.C. § 35-
41-4-2(h)(2). There is no dispute regarding the timeliness with which the State brought
the charges after T.I. informed the police and DCS of the incident. The State explains
that, because Overton took affirmative acts to conceal evidence of the offense—namely,
telling T.I. that he would not graduate if he told anyone about the molestation—the
statute of limitations was tolled until T.I. disclosed the abuse to the authorities in 2011.
Indiana courts have considered whether defendants concealed evidence under
similar situations.3 For example, in Crider v. State, 531 N.E.2d 1151, 1154 (Ind. 1988), a
child molesting victim and her sister testified that they did not tell anyone of the repeated
attacks upon them by their father because he threatened to “put them in the hospital” if
they told anyone. The defendant told the victim’s sister that she would “never see the
light of day” if she did not cooperate with him. Crider, 531 N.E.2d at 1154. Our
supreme court concluded that the defendant “successfully concealed the fact of his crimes
2
Our supreme court noted in Sloan that some courts have analyzed concealment with the wrong standard
by holding: “To constitute concealment of evidence of the offense sufficient to toll the statute of
limitations, there must be a positive act performed by the defendant calculated to prevent discovery of the
fact that a crime has been committed.” Sloan, 947 N.E.2d at 922 n.8 (citing Sipe v. State, 797 N.E.2d
336, 340 (Ind. Ct. App. 2003)) (emphasis added). Indiana Code Section 35-41-4-2(h)(2) uses the
language “conceals evidence of the offense,” which is seemingly broader than its predecessor’s language,
“conceals the fact that the offense has been committed.” Id. (citing I.C. § 35-1-3-5, which was repealed by
Pub. L 148-1967, § 28, eff. Oct. 1, 1977). The court noted that “[i]t is arguable that the new language
applies to concealment of any evidence, including evidence of guilt, and thus would toll the statute of
limitations in any crime in which a defendant tries to avoid apprehension.” Id. However, because
concealment was not an issue in Sloan, the court left this question for another day. Id.
3
Sloan also involved a statute of limitations issue for a child molesting charge. However, the defendant
conceded that he committed affirmative acts of concealment through his intimidation of the victim.
Sloan, 947 N.E.2d at 921. The issue in Sloan was when the tolling of the statute of limitations ended.
6
by his positive acts of intimidation of his victims; thus, the statute of limitations did not
run until the victim made her disclosure to authorities.” Id.
In Sipe v. State, 797 N.E.2d 336, 340 (Ind. Ct. App. 2003), disapproved of on
other grounds by Sloan v. State, 947 N.E.2d 917 (Ind. 2011), a child molesting victim
testified that the defendant told her that she would lose her sisters, that she would not be
able to see them anymore, and that they would have to go into foster homes. When she
got older, he would get more violent and threaten her physically. We concluded that the
defendant “successfully concealed his crimes by his positive acts of intimidation” of the
victim and that the statute of limitations did not begin to run until the victim made her
disclosure to the authorities. Sipe, 797 N.E.2d at 340.
To show concealment here, the State relies on T.I.’s testimony that, after Overton
told T.I. to get out, Overton said that if T.I. “told anybody that [he] wouldn’t graduate.”
Tr. p. 102. Overton argues that this threat was not proven beyond a reasonable doubt as
evidenced by the trial court’s entry of conviction as a Class C felony rather than a Class
A felony. The offense was charged as a Class A felony because it was allegedly
committed by using or threatening the use of deadly force or while armed with a deadly
weapon. See I.C. § 35-42-4-3(b). However, the trial court entered the conviction as a
Class C felony, indicating that the trial court did not find beyond a reasonable doubt that
the offense was committed by using or threatening the use of deadly force or while armed
with a deadly weapon.
Our supreme court has held that, in the context of a child molesting charge, “the
threat must facilitate the offense, not its coverup.” Spurlock v. State, 675 N.E.2d 312,
7
316 (Ind. 1996). The threat that T.I. “wouldn’t graduate” if he told anyone was
communicated after the offense was complete and could not have facilitated the offense.
Tr. p. 102. Rather, the threat facilitated the coverup. As such, that particular threat could
not have been used by the trial court to support a finding that the offense was committed
by using or threatening the use of deadly force to sustain a Class A felony conviction.
The threat, however, could have been used to support a finding that the statute of
limitations was tolled by concealing evidence of the offense.4 We conclude that the
statute of limitations did not begin to run until T.I. made his disclosure to the authorities.
Thus, the trial court properly denied Overton’s motion to correct error.
Conclusion
Overton’s conviction for Class C felony child molesting was not barred by the
statute of limitations, and the trial court properly denied Overton’s motion to correct
error. We affirm.
Affirmed.
VAIDIK, J., and CRONE, J., concur.
4
At the oral argument, the State asserted that it was only required to show that the statute of limitations
was tolled by concealment by a preponderance of the evidence. Overton argued that the State’s burden of
proof was a beyond a reasonable doubt standard. We have held that “it is incumbent upon the State to
establish that the crime charged was committed within the statute of limitations.” Bennett v. State, 167
Ind. App. 227, 229, 338 N.E.2d 294, 296 (1975). In Bennett, we also held that “sufficient evidence of
probative value existed from which the trier of fact could determine beyond a reasonable doubt that the
prosecution of this cause was commenced well within the five year statutory period,” which implies that
the burden of proof is beyond a reasonable doubt. Id. at 230, 338 N.E.2d at 296. However, regardless of
whether the beyond a reasonable doubt standard or the preponderance of the evidence standard is
applicable, we conclude that the State has met its burden.
8