Hawk v. State

• Decision Date: 15 April 1987
• Docket Number: No. 2-1185-A-365,2-1185-A-365
• Citation: 506 N.E.2d 71
• Parties: Tony Wayne HAWK, Appellant (Defendant Below), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 71

506 N.E.2d 71

Tony Wayne HAWK, Appellant (Defendant Below), v. STATE of Indiana, Appellee.

No. 2-1185-A-365.

Court of Appeals of Indiana Second District.

April 15, 1987.

Rehearing Denied May 13, 1987.

James R. Fleming, Kokomo, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Tony Hawk appeals his conviction by the court following a bench trial for touching or fondling a child less than twelve years of age with intent to arouse or satisfy sexual desires. ¹ Hawk argues that touching or fondling with intent to arouse or satisfy is not a lesser included offense of sexual intercourse with a child less than twelve years of age, the crime with which he was charged.

The information read, in pertinent part:

"[O]n or about 11/84 and March 20, 1985, exact time and date unknown, in the County of Tipton, in the State of Indiana, one Tony Wayne Hawk did then and there perform sexual intercourse with [N.W., victim] a child under the age of twelve (12) years of age contrary to the form of the statute in such case made and provided and against the peace and In Buck v. State (1983) Ind., 453 N.E.2d 993, our Supreme Court determined that the offense of touching or fondling with intent to arouse or satisfy was not a lesser included offense of deviate sexual conduct. In holding that the trial court did not err by allowing charges of both to proceed to trial, the court stated:

dignity of the State of Indiana...." Record at 15. ²

"It is evident the child molesting statute embraces three distinct types of child molesting by encompassing the acts of sexual intercourse, deviate sexual conduct, and fondling or touching with intent to arouse sexual desires. Clearly different acts and elements are required to be proven in each case and the defensive posture would not be the same since the prosecution would necessarily proceed under different theories and proof." Id. at 997 (emphasis supplied).

We are compelled by the Buck analysis to conclude that touching or fondling with intent to arouse or satisfy is not a lesser included offense of sexual intercourse under the statute.

The crime charged and the crime for which Hawk was convicted have different elements. "Sexual intercourse" is defined by statute as, "[A]n act that includes any penetration of the female sex organ by the male sex organ." I.C. 35-41-1-26 (Burns Code Ed.Repl.1985). Touching or fondling is not defined by statute, but the statutory provision for the crime of touching or fondling a child requires a showing that the touching or fondling was, "[w]ith intent to arouse or to satisfy the sexual desires...." I.C. 35-42-4-3(b). Thus, the crimes have different elements: one requires a showing of penetration, which the other does not, and one requires a showing of a specific intent contemporaneous with the conduct, which the other does not. Neither crime is statutorily included in the other because neither is established by proof of the same material elements as the other. See, I.C. 35-41-1-16(1) (Burns Code Ed.Repl.1985).

Nor is touching or fondling a lesser included offense of sexual intercourse under this statute in the sense that proof of one requires proof of less than all the material elements of the other. Id.

Of course, a penetration is a touching. Cf., Douglas v. State (1985) 4th Dist. Ind.App., 484 N.E.2d 610, 613 (oral-genital contact under criminal deviate conduct charge is a touching). However, our analysis cannot end there. The crime of touching or fondling requires a showing that the touching or fondling was done with the specific intent to arouse or satisfy sexual desires. Hopper v. State (1986) 1st Dist. Ind.App., 489 N.E.2d 1209, 1216, cert. denied (1986) --- U.S. ----, 107 S.Ct. 592, 93 L.Ed.2d 593; Hammond v. State (1985) 2d Dist. Ind.App., 479 N.E.2d 629, 632; McEachern v. State (1985) 3d Dist. Ind.App., 474 N.E.2d 1034; see generally, Mullins v. State (1985) 3d Dist. Ind.App., 486 N.E.2d 623, 625; Newton v. State (1983) 2d Dist. Ind.App., 456 N.E.2d 736, 739 n. 1 (discussing intent element under I.C. 35-42-4-3 generally). By definition, sexual intercourse carries with it no such specific intent. I.C. 35-41-1-26, and see, I.C. 35-42-4-1 (Burns Code Ed.Repl.1985) (rape statute adds mental element of "knowingly" or "intentionally"); Newton, supra, at 739 n. 1.

Specific intent is rarely, if ever, susceptible to overt proof. It is a state of mind which is usually determined inferentially, by resort to the surrounding circumstances. Hammond, supra, 479 N.E.2d at 632; McEachern, supra, 474 N.E.2d at It may well be that our consideration of the issue should end with this determination. Our Supreme Court has recently and unanimously held that a defendant is not entitled to an instruction upon a lesser offense unless the language of the statute and the charging document necessarily include the lesser offense. Roland v. State (1986) Ind., 501 N.E.2d 1034, citing Salhuddin v. State (1986) Ind., 492 N.E.2d 292 (also unanimous). It would seem that the lesser included offense concepts embraced within the reported decisions constitute two edges to the same sword. One cannot plausibly contend that a defendant may not receive an instruction on a lesser offense yet contend that the State might convict him of that offense.

                1036.  A trier of fact having evidence of only a penetration would be justified in reaching a conclusion, via inference, that the intent to arouse or satisfy sexual desires was present.  Nevertheless, the specific intent in that instance would be determined derivatively, or inferentially, and could possibly be disproved.   Cf. Buck, supra, 453 N.E.2d at 997 (prosecution must proceed under different theories for different crimes);   Hammond, supra, at 632 (defendant denied sexual intent while admitting touching).  Thus it would be possible, although perhaps unusual, to engage in sexual intercourse without necessarily having the intent to arouse or satisfy. 3  We must therefore conclude that touching or fondling with the requisite intent is not statutorily or inherently included in the child molestation-sexual intercourse crime
                

However, because most earlier cases hold that a lesser offense may be included in either one of two means, we shall turn to a discussion of whether the touching or fondling offense is included in the sexual intercourse offense as here charged. See Lechner v. State (1982) 2d Dist. Ind.App., 439 N.E.2d 1203, 1206; and see State v. Mercer (1986) 4th Dist. Ind.App., 500 N.E.2d 1278; Sering v. State (1986) 2d Dist. Ind.App., 488 N.E.2d 369, 375. Here, the information traced the language of the section dealing with child molestation by sexual intercourse. The information contained no additional factual allegations, nor did it make reference to the vital element of the touching or fondling crime, i.e., the specific intent to arouse or satisfy. These omissions undermine the contention that the crime for which Hawk was convicted was included factually, or, as charged. Lechner, supra; Cf. Douglas v. State, supra, 484 N.E.2d at 613 (fondling charge would have been included as charged had the State charged deviate sexual conduct under the molestation statute "with intent to arouse or to satisfy.") ⁴ The principle supporting this conclusion is that the prosecution has chosen to charge the offense carrying the greater penalty, sexual intercourse, and thereby foreclosed the possibility of the defendant tendering instructions as to a lesser crime. Compton v. State (1984) Ind., 465 N.E.2d 711; and see Dorsey v. State (1986) Ind., 490 N.E.2d 260. The principle would also seem to foreclose the giving of a lesser offense instruction tendered by the State if defendant objects. Majko v. State (1987) Ind., 503 N.E.2d 898. By the same token, a conviction for a lesser offense may not be sustained when the information has tracked the language of the greater offense. Slayton v. State (1984) 4th Dist. Ind.App., 471 N.E.2d 1154; and see Crawford v. State (1987) 4th Dist Somewhat parenthetically, the author of this opinion might question whether absent the holding of Buck v. State, supra, 453 N.E.2d 993, the offense would be a lesser offense under I.C. 35-41-1-16(3) as suggested by Judge Shields. It may be noted that in order for the touching or fondling to be an included offense under this provision, the lesser harm or risk of harm must be the only difference between the two offenses. As earlier stated, the two offenses are different in other respects.

Ind.App., 502 N.E.2d 1361, reh. pending; O'Grady v. State (1985) 4th Dist. Ind.App., 481 N.E.2d 115; Snell v. State (1984) 4th Dist. Ind.App., 472 N.E.2d 215, 217 n. 1.

We are cognizant that citizens of Indiana might well seek a distinction so as to incarcerate perpetrators of particularly unsavory offenses, as opposed to other crimes which generate less emotion or public outrage. Our oath to apply the law as it exists, however, may not be influenced by such considerations. The sufficiency or insufficiency of the charge here may not be determined by the fact that it involves child molestation as opposed to an arguably less distasteful class C felony such as causing $2500 damage to the grounds adjacent to a community center. I.C. 35-43-1-2(b)(4) (Burns Code Ed.Supp.1986). ⁵

For the foregoing reasons the judgment must be and is reversed. ⁶

SHIELDS, P.J., concurs and files separate opinion.

BUCHANAN, J., dissents and files opinion.

SHIELDS, Presiding Judge, concurring.

SEPARATE CONCURRING OPINION

I concur in Judge Sullivan's opinion but nevertheless feel compelled to write a separate opinion for emphasis. Were it not for Buck, I would conclude the offense of child molesting as a touching with intent to arouse or satisfy sexual desires is an included offense of the child molesting as intercourse charge. I would so conclude because the offense fits within the definition of included offense contained in ...