Barger v. State
| Decision Date | 06 March 1992 |
| Docket Number | No. 49S02-9203-CR-160,49S02-9203-CR-160 |
| Citation | 587 N.E.2d 1304 |
| Parties | Michael G. BARGER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
F. Allen Tew, Jr., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, Jeffrey Modisett, Pros. Atty., Marion County, Carol J. Orbison, Deputy Pros. Atty., Indianapolis, for appellee.
Michael G. Barger was found guilty by a jury of child molesting, a class D felony. Ind.Code Sec. 35-42-4-3(d) (West 1986). The evidence revealed that Barger was the principal at the victim's elementary school. He invited the victim to sit on his lap, and placed the victim's hand outside his clothing on his penis. The Indiana Court of Appeals reversed, finding the evidence of the victim's age was insufficient to sustain the conviction. Barger v. State (1991), Ind.App., 576 N.E.2d 621, reh'g denied, 579 N.E.2d 621. We grant transfer, vacate the opinions of the Court of Appeals, and affirm Barger's conviction.
Barger raises the following issues on appeal:
I. Whether the evidence was sufficient to sustain his conviction;
II. Whether the court erred in allowing testimony about the victim's reputation for truthfulness;
III. Whether the court erred in allowing the State to present evidence of other acts allegedly committed by Barger; and
IV. Whether the prosecutor engaged in misconduct.
Barger argues the evidence was insufficient to sustain his conviction because the State failed to prove the victim was over twelve years of age at the time of the offense.
Indiana's statutes make it a felony to molest children under the age of sixteen. If the child is younger than twelve, the offense is a class C felony. Ind.Code Sec. 35-42-4-3(b). Molesting older children, those aged twelve through fifteen, is a class D felony. It is this latter provision under which Barger was convicted:
A person sixteen (16) years of age, or older who, with a child twelve (12) years of age or older but under sixteen (16) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a class D felony.
Barger argues that one of the elements of the class D felony is that the act occurred "with a child twelve years of age or older," and the State could not prove the victim in this case was over twelve years of age. That being so, he says, the State did not prove beyond a reasonable doubt all the elements of the crime of child molesting, a class D felony.
When reviewing a claim of insufficient evidence, this Court does not reweigh evidence or judge the credibility of the witnesses. Alfaro v. State (1985), Ind., 478 N.E.2d 670. We affirm the conviction if, looking to the evidence and reasonable inferences therefrom which support the verdict, there is substantial evidence of probative value to support the conclusion of the trier of fact. Id.
This case is unusual in that the molestation took place right around the victim's twelfth birthday. The evidence most favorable to the verdict indicates the molestation occurred in January or February of 1988. The victim turned twelve years old on February 22, 1988. We have the rare set of circumstances in which the State apparently cannot prove definitively whether the victim was eleven years old or twelve years old at the time of the molestation. It is thus difficult to know whether Barger is guilty of a class D or a class C felony. We do not think it follows that Barger is guilty of no felony at all. 1
Penal statutes should be interpreted in order to give "efficient operation to the expressed intent of the legislature." State v. Bigbee (1973), 260 Ind. 90, 93, 292 N.E.2d 609, 611. See also McAnalley v. State (1987), Ind., 514 N.E.2d 831. Penal statutes are strictly construed against the State. Cape v. State (1980), 272 Ind. 609, 400 N.E.2d 161. The statutes are not to be overly narrowed, however, so as to exclude cases the statutes fairly cover. Id. Criminal statutes Morris v. State (1949), 227 Ind. 630, 632, 88 N.E.2d 328, 329.
Since 1908, our legislature has prescribed a harsher penalty for sexual offenses committed against children under the age of twelve. In 1908, the penalty for the crime of rape was imprisonment for not less than two years nor more than twenty-one years. The statute further provided: "[I]n cases where the female upon whom the crime is committed is a child under the age of twelve years, the punishment shall be imprisonment in the state prison for life." Burns' Annotated Indiana Statutes, Revision of 1908, Volume 1, Sec. 2250. The statute was modified over the years, but the stronger penalty for offenses against children under the age of twelve always remained. In 1976, the child molesting statute was enacted in its present form, retaining the harsher penalty for sexual crimes against victims under twelve. See Ind.Code Sec. 35-42-4-3. Thus, for most of this century, the legislature has enacted and reaffirmed a consistent public policy aimed at punishing offenders more harshly when the offenders commit crimes against younger children. Younger children are more in need of protection; they are less likely to be able to defend themselves and are more susceptible to adult suggestion and schemes.
This Court has had numerous occasions to analyze the purpose and operation of these statutes. Among other things, we have concluded that time is not of the essence in the crime of child molesting. Hodges v. State (1988), Ind., 524 N.E.2d 774. See also Hoehn v. State (1984), Ind.App., 472 N.E.2d 926. It is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases. The exact date becomes important only in limited circumstances, including the case where the victim's age at the time of the offense falls at or near the dividing line between classes of felonies.
While one might always wish for statutes drafted so as to make the job of interpretation easier, we think it is inconceivable that the legislature intended through Ind.Code Sec. 35-42-4-3 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. In effect, the prosecutor strictly construed the statute against the State by charging Barger with the class D felony rather than the class C felony. 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 Sec. 35-42-4-3 as providing no protection to a victim who was molested around her twelfth birthday would render the statute absurd given the legislature's long and constant history of providing more severe penalties for crimes against victims under the age of twelve.
Barger argues that Mahla v. State (1986), Ind., 496 N.E.2d 568, supports his position. In Mahla, the defendant was charged with and convicted of class B felony child molesting. 2 He argued the jury should have been instructed to consider the crime of class C felony child molesting. We upheld the trial court's refusal of this request because the C felony was not a lesser included offense of the B felony under the test outlined in Henning v. State (1985), Ind., 477 N.E.2d 547. We also noted that all the evidence against Mahla pointed to the conclusion that the victim was under twelve at the time of the molestation; Mahla was charged with and properly convicted of the class B felony. Mahla did not involve the factual situation presented here, in which it is difficult to tell whether the victim was under or over twelve years of age at the time of the offense.
We hold when it is difficult to tell whether the child molesting victim was eleven or twelve at the time of the offense, it is sufficient to charge and convict the defendant of the lesser felony, a class D felony in this case, because the child is clearly under the age of sixteen, as required for the lesser class felony. 3 We reach this conclusion based upon the legislative intent to punish offenders more harshly when they commit crimes against younger children, and the notion of strict construction of criminal statutes.
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.
The victim in this case testified that Barger took her hand and placed it on his penis while she was sitting on his lap in his office. Convictions for child molesting may rest upon the uncorroborated testimony of the victim. Baxter v. State (1988), Ind., 522 N.E.2d 362. The evidence was sufficient to sustain Barger's conviction for child molesting, a class D felony.
Barger argues the court erred in allowing three of the State's witnesses, all teachers at the elementary school, to testify about the truth and veracity of the victim.
"No witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth." Stewart v. State (1990), Ind., 555 N.E.2d 121, 125. Adult witnesses may be allowed, however, to state an opinion about the child victim's general competence and ability to understand the subject of sexual conduct. Id. Such testimony is allowed because of the special problem in assessing the credibility of children who are...
To continue reading
Request your trial