Barnhart v. State
| Decision Date | 13 April 2023 |
| Docket Number | 22A-CR-1734 |
| Parties | Jacob F. Barnhart, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the DeKalb Superior Court The Honorable Adam C Squiller, Judge Trial Court Cause No. 17D01-2105-FA-1
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
[¶1] Jacob Barnhart appeals his convictions and sentences for two counts of child molesting, Class A felonies. Barnhart argues that: (1) the fifteen-year delay between the initial reporting of his offenses and his prosecution violated his due process rights; (2) the trial court abused its discretion by admitting evidence of other bad acts; (3) the evidence is insufficient to sustain his convictions; and (4) his sentence is inappropriate. Barnhart's arguments fail, and accordingly, we affirm.
[¶2] Barnhart raises four issues, which we restate as:
[¶3] F.K. ("Mother") has two daughters, S.K., who was born in June 1995, and R.K., who was born in January 2000. Shortly after R.K.'s birth, Mother began a relationship with Barnhart, who was born in June 1970, and the relationship continued for approximately ten years.
[¶4] When S.K. was five or six years old, on "either the first day before school, [ ] the night before the first day of school, or very early on in the school year . . .," Mother was at work, and S.K. was taking a bath. Tr. Vol. II pp. 135-36. Barnhart entered the bathroom, shut the door, and asked S.K. if her "pussy was clean." Id. at 136. Barnhart then asked if "he could check," spread S.K.'s legs, and "lick[ed] it twice." Id.
[¶5] On another evening while Mother was working, S.K. saw Barnhart watching a pornographic movie and saw Barnhart's erect penis. S.K. ran to her room and pretended to be asleep. Barnhart was calling for S.K. and entered S.K.'s bedroom. S.K. saw Barnhart's erect penis again, and Barnhart rubbed seminal fluid on S.K.'s lips. S.K. was "very scared" and quickly wiped the fluid off. Id. at 139. At that point, Mother arrived home, and Barnhart quickly left S.K.'s bedroom.
[¶6] In 2004, the children were removed from Mother's care and began living with their maternal grandmother ("Grandmother"). S.K. visited Mother at her apartment occasionally. During one of those visits, S.K. fell asleep on the living room floor. She woke to Barnhart pulling down her pants and placing his hands in her underwear. Barnhart was "rubbing between the labia." Id. at 143. S.K. began to fight back, and Barnhart left.
[¶7] During another visit with Mother at Barnhart's family's residence in January 2006, Barnhart put R.K., who was five or six years old, on his bed and covered R.K.'s head with a pillow. Barnhart then "lick[ed]" R.K.'s vagina, rubbed his penis on the outside of R.K.'s vagina, and put his penis inside of her vagina. Id. at 163. R.K. stated that "it hurt so bad." Id. at 164.
[¶8] The next day, R.K. asked Grandmother to pick her up, and R.K. reported the assault to Grandmother. S.K. heard R.K.'s statements to Grandmother and told Grandmother, "It's true because he's done it to me for years." Id. at 144. Grandmother contacted law enforcement, and S.K. and R.K. were interviewed. R.K., however, had problems talking about the incident in front of men. The State declined to file charges against Barnhart.
[¶9] In 2012, Mother, who had moved away, contacted law enforcement again regarding the allegations. Law enforcement again investigated the allegations, and the State again declined to file charges against Barnhart.
[¶10] In December 2020, S.K., now an adult, contacted the Sheriff's Department regarding Barnhart's actions. In May 2021, the State charged Barnhart with: (1) Count I, child molesting, a Class A felony, for "knowingly or intentionally perform[ing] or submit[ting] to sexual intercourse or deviate sexual conduct" with S.K. "on or about 1/1/2000 to 12/31/2002"; and (2) Count II, child molesting, a Class A felony, for "knowingly or intentionally perform[ing] or submit[ting] to sexual intercourse or deviate sexual conduct" with R.K. "on or about 1/1/2004 to 9/20/2005." Appellant's App. Vol. II pp. 25-26.
[¶11] In April 2022, the State filed a notice of intention to use "other bad acts" evidence and impeachment evidence. Appellant's App. Vol. II p. 91. The State's motion concerned the following evidence: (1) all sex acts by Barnhart against S.K. and R.K. to be "clarified with a Baker instruction"[1]; (2) sex acts against a third child charged in a separate case; (3) Barnhart battered Mother on January 4, 2003, because Mother confronted Barnhart about molesting S.K.; (4) Barnhart threatened Mother if she did not help him with the child molesting investigation, and Mother left Indiana; (5) Barnhart asked Mother if she would perform sexual acts with her son, whether she was attracted to young children, and whether Mother would "set him up with the minor daughters of a mutual friend"; and (6) Barnhart's 2017 fraud conviction. Id. at 91-92. After a hearing, the trial court entered the following on the Chronological Case Summary ("CCS"): "the Defendant has no objection to paragraph (1), paragraph (2) is not admissible, paragraphs (3), (4), and (5) shall be addressed in trial and ruled upon, and Defendant has no objection to paragraph (6)." Id. at 16.
[¶12] A jury trial was held in May 2022. The jury found Barnhart guilty as charged. The trial court discussed several aggravators, including: Barnhart's criminal history; the young age of the victims; Barnhart's position of trust with the victims; Barnhart's threats of harm to the victims; the severe trauma suffered by the victims; and Barnhart's lack of remorse. The trial court sentenced Barnhart to forty-five years on each conviction to be served consecutively for an aggregate sentence of ninety years in the Department of Correction. Barnhart now appeals.
[¶13] Barnhart argues that the fifteen-year delay between the initial reporting of the offenses in 2006 and the filing of charges in 2021 violated his Fifth Amendment rights to due process.[2] Our Supreme Court has held that, "[a]lthough the prosecution can exercise discretion on when to bring charges, that discretion is not unlimited." Ackerman v. State, 51 N.E.3d 171, 189 (Ind. 2016) (). The United States Supreme Court has recognized that a pre-indictment delay in prosecution can result in a Due Process Clause violation. United States v. Valenzuela-Bernal, 458 U.S. 858, 869, 102 S.Ct. 3440, 3447 (1982). "Although statutes of limitations often operate to prevent too much delay before criminal charges are brought, 'even where a charge is brought within the statute of limitations, the particulars of the case may reveal that undue delay and resultant prejudice constitute a violation of due process.'" Ackerman, 51 N.E.3d at 189 (quoting Patterson v. State, 495 N.E.2d 714, 718 (Ind. 1986)). "Despite this, the passage of time alone is not enough to establish prejudice." Id. "If it were, then the Constitution would serve as a functional statute of limitation." Id.
Rather, the defendant has the burden of proving that he suffered "actual and substantial prejudice to his right to a fair trial," and upon meeting that burden must then demonstrate that "the State had no justification for delay," which may be demonstrated by showing that the State "delayed the indictment to gain a tactical advantage or for some other impermissible reason."
Id. at 189-90 (quoting Schiro, 888 N.E.2d at 834).
[¶14] We note that Barnhart did not raise this argument to the trial court. In general, a claim that prosecution is untimely brought must be raised through a motion to dismiss. See Ind. Code § 35-34-1-4(a)(8) ( ). "The failure to file a pre-trial motion to dismiss raising a constitutional challenge results in waiver of the issue on appeal." Jackson v. State, 165 N.E.3d 641, 645 (Ind.Ct.App. 2021) (citing Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985)), trans. denied. Accordingly, Barnhart has waived the issue.
[¶15] Barnhart argues that he should be able to raise the issue because due process is a "fundamental constitutional right." Appellant's Br. p. 19. To the extent Barnhart is asserting a claim of fundamental error, we note that "[a]n error is fundamental if it made a fair trial impossible or was a 'clearly blatant violation[] of basic and elementary principles of due process' that presented 'an undeniable and substantial potential for harm.'" Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022) (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)).
[¶16] The charges here were filed within the statute of limitations, which allows a prosecution for...
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