Barger v. State of Ind.

• Citation: 991 F.2d 394
• Decision Date: 13 April 1993
• Docket Number: No. 92-3032,92-3032
• Parties: Michael G. BARGER, Petitioner-Appellant, v. STATE OF INDIANA, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 394

991 F.2d 394

Michael G. BARGER, Petitioner-Appellant, v. STATE OF INDIANA, Respondent-Appellee.

No. 92-3032.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 16, 1993.

Decided April 13, 1993.

F. Allen Tew, Jr. (argued), Indianapolis, IN, for petitioner-appellant.

Wayne E. Uhl, Deputy Atty. Gen. (argued) and Ronald J. Semler, Asst. Atty. Gen., Office of the Atty. Gen., Federal Litigation, Indianapolis, IN, for respondent-appellee.

Before BAUER, Chief Judge, FLAUM, Circuit Judge, and WILL, Senior District Judge. ^*

BAUER, Chief Judge.

Michael Barger, the principal of Robey Elementary School, molested one of his students during the winter months of the 1987-88 school year. He was convicted of child molesting under Indiana Code § 35-42-4-3(d) (1985) ¹ by a jury and sentenced to three years imprisonment. Barger petitioned the district court for habeas relief under 28 U.S.C. § 2254. He asserts that his conviction violates the Constitution because the state did not prove beyond a reasonable doubt that his victim was twelve years old at the time of the attack. The district court denied his petition. For the following reasons, we affirm.

I. Background

The following facts, taken in the light most favorable to the state, are drawn principally from the Supreme Court of Indiana's opinion in Barger's direct appeal. See Barger v. State, 587 N.E.2d 1304 (Ind.1992). The evidence revealed that Barger invited a female sixth-grade student to sit on his lap, and placed her hand outside his clothing on his penis. This incident occurred right around her twelfth birthday, which was February 22, 1988. She did not tell anyone about the attack until February 1989.

The bulk of the government's evidence about the time of the molestation came from child witnesses. The victim testified that she visited Barger's office twice during the winter months of the 1987-88 school year to complain about a boy's teasing. During one of these visits Barger molested her. The victim could not remember precisely when she visited Barger's office or whether she was molested during the first or second visit. The boy who was the subject of the victim's complaint testified that he was called down to the principal's office in the spring. Trial Transcript ("Tr.") at 269. The victim's father testified that he noticed changes in his daughter's behavior near the end of sixth grade.

Because of the circumstances, it is not entirely clear whether the victim was eleven or twelve at the time of the molestation. This fortuity is the basis of Barger's constitutional challenge.

Indiana law makes it a felony to molest children under the age of sixteen. Barger, 587 N.E.2d at 1306. If the child is less than twelve, the offense is a class C felony punishable by six years imprisonment. Ind.Code § 35-42-4-3(b). If the child is between twelve and fifteen, the offense is a class D felony. Ind.Code § 35-42-4-3(d). Barger was convicted of the less serious class D felony. Barger argues that the victim's age is an element of the offense of child molesting as defined by § 35-42-4-3(d), and the state's failure to prove that his victim was twelve renders his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.

This argument persuaded the Indiana Court of Appeals, and it found that the evidence of the victim's age was insufficient, and reversed Barger's conviction. Barger v. State, 576 N.E.2d 621 (1991). The Supreme Court of Indiana reversed the Court of Appeals and affirmed Barger's conviction. Barger, 587 N.E.2d at 1306. The Indiana Supreme Court explained that the Indiana legislature has traditionally punished sexual offenses against younger children more harshly than those committed against older children. But the court also explained that it has concluded "that time is not of the essence in the crime of child molesting" because it is difficult for children to remember specific dates. Id. at 1307. This difficulty is increased because children often do not report the incidents immediately. Id. at 1307 (citing Hodges v. State, 524 N.E.2d 774 (Ind.1988)). Because of these difficulties, the exact date is important only when the victim's age at the time of the offense falls at or near the dividing line between classes of felonies. Further, the court reasoned:

[I]t is inconceivable that the legislature intended ... to absolve defendants who molest children around their twelfth birthdays such that it is impossible to tell whether the victim was eleven or twelve at the time of the offense.... It is beyond question that Barger's victim was under sixteen years of age, as required for the class D felony. To read Ind.Code § 35-42-4-3 as providing no protection to a victim who was molested around her twelfth birthday would render the statute absurd....

Barger, 587 N.E.2d at 1307. For these reasons, the court held that as a matter of legislative intent and Indiana law, when it is difficult to tell whether a molested child was eleven or twelve when the offense occurred, it is sufficient to charge and convict the defendant of the lesser, class D felony. The court stated that "the essence of the child molesting statute is that the victim be younger than some age--under sixteen or under twelve years old. There was proof beyond a reasonable doubt that the victim was under sixteen years of age at the time of the offense." Id. at 1308.

Barger filed a habeas action and renewed his arguments in the district court. He contended that the Indiana Supreme Court's ruling contravened Indiana law and violated the Due Process Clause of the Fourteenth Amendment. The district court correctly noted in its holding that states have the final word on the meaning of their laws, and claims that a state court has erroneously interpreted state law are not cognizable in habeas actions. Barger v. State of Indiana, No. I.P. 92-842-C, slip op. at 4 (S.D.Ind. Aug. 13, 1992). The district court also found Barger's Fourteenth Amendment claims to be without merit. Id. at 5-8.

On appeal, Barger renews his Fourteenth Amendment claims. Although not artfully presented, in essence he argues that his conviction violates the Due Process clause because: every element of the crime with which he was charged was not proven beyond a reasonable doubt; he was convicted of a charge not made; and the Indiana Supreme Court's construction of Indiana law permitted a variance between the charge and the proof, and sanctioned his conviction without proof beyond a reasonable doubt of each element of the offense.

II. Analysis

State courts are the final arbiters of state law. Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987); McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); Fagan v. Washington, 942 F.2d 1155 (7th Cir.1991). Federal courts do not reexamine state court determinations of state law questions. Estelle v. McGuire, --- U.S. ----, ----, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). The Indiana Supreme Court held that as a matter of state law, a person who molests a child under age sixteen is guilty of a class D felony. Barger v. State, 587 N.E.2d at 1308. Of course there are constitutional limits to a state's ability to define criminal conduct. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (state may not criminalize drug addiction); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (state statute must provide fair notice to ordinary citizen of conduct which it forbids). But it is not unconstitutional for a state to criminalize the sexual molestation of children under age sixteen.

There are also limits on a state's ability to shift the burdens of proof and persuasion to criminal defendants, McMillan, 477 U.S. at 85, 106 S.Ct. at 2415 (quoting Patterson v. New York, 432 U.S. 197, 211 n. 12, 97 S.Ct. 2319, 2327 n. 12, 53 L.Ed.2d 281 (1977)), although the limits of that ability are not entirely clear. Compare Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (upholding constitutionality of Ohio law requiring murder defendant to prove affirmative defense of self defense to aggravated murder charge) and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (upholding against due process challenge New York law placing burden on murder defendants to prove affirmative defense of extreme emotional disturbance) with Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (Maine statute requiring defendant to prove he acted in heat of passion to reduce homicide charge to manslaughter unconstitutional). But Indiana has not shifted any burden of persuasion to Barger.

Barger argues that he cannot be convicted of child molesting unless the state proves the victim's precise age beyond a reasonable doubt. He does not contest that the state proved beyond a reasonable doubt that the child was under sixteen and that he molested her. ² He argues only that his due process rights were violated because the state did not prove beyond a reasonable doubt that the victim was a twelve year old rather than an eleven year old. But he points to no prejudice or impairment in his ability to prepare his defense. Cf. Bae v. Peters, 950 F.2d 469, 478 (7th Cir.1991) (Due process requires that "a criminal defendant must receive adequate notice of the charges against him so that he may defend himself against those charges. A vague indictment ... or a last-minute change in the charge could prejudice a defendant's opportunity to defend himself; if that prejudice is severe enough, a due process violation could occur.").

In this case neither the charge nor the alleged facts changed. The state could have charged him with molesting an eleven year old (the more serious class C offense), but Barger received the benefit of a lenient charge. At oral argument, counsel could not explain how Barger had been prejudiced by the lenient charge. Indeed, we find it...