Minton v. State

• Decision Date: 29 January 2004
• Docket Number: No. 48A02-0301-CR-22.,48A02-0301-CR-22.
• Parties: Michael Ray MINTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

802 N.E.2d 929

Michael Ray MINTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A02-0301-CR-22.

Court of Appeals of Indiana.

January 29, 2004.

Transfer Denied March 19, 2004.

Patrick R. Ragains, Smith & Ragains, Anderson, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

A jury found Michael Ray Minton guilty of three counts of child molesting,¹ each as a Class B felony, one count of child molesting as a Class A felony, and one count of sexual misconduct with a minor² as a Class B felony. After trial, he also admitted to being a habitual offender.³ Minton now appeals raising the following issues:

I. Whether a 1993 amendment to IC XX-XX-X-X, which extended the five-year limitation period for prosecuting the offense of child molesting, violates the Ex Post Facto Clauses of the United States Constitution and the Indiana Constitution, thus barring Minton's prosecution under Counts I, II, and III for crimes committed more than five years before they were prosecuted.

II. Whether the same 1993 amendment to IC XX-XX-X-X violates the Privileges and Immunities Clause under Article 1, Section 23 of the Indiana Constitution by creating a different limitation period for prosecuting sex offenses committed against children.

III. Whether Minton's multiple convictions for child molesting violate the prohibition against double jeopardy found under Article 1, Section 14 of the Indiana Constitution.

We affirm.

FACTS AND PROCEDURAL HISTORY

S.F. was born in April 1985, and, for the first ten years of her life, mistakenly thought that Minton was her biological father.⁴ S.F. did not live with Minton, but visited him on a regular basis during most of her childhood.

In March 2001, Minton was charged in a multi-count information, amended in June 2002, with molesting S.F. from the time she was in first grade through the summer of her eighth grade year. Count I alleged that, in violation of IC XX-XX-X-X(a), "[o]n or between 1992 and 1993," in Madison County, Indiana, "MICHAEL RAY MINTON AKA MICHAEL JAMES BASS AKA MICHAEL RAY BASS AKA MICHAEL RAY HAMPTON AKA MICHAEL JAMES, being a person at least twenty-one (21) years of age, did with [S.F.,] a child under the age of fourteen years, ... submit to Sexual Deviate Conduct, to-wit: fellatio."⁵Appellant's Appendix at 50. Count II alleged the same offense but changed the time frame to "[o]n or between January, 1993, and December, 1993." Id. at 50-51. In Count III, the State alleged that "[o]n or between 1994 and March, 1996," with a child under the age of fourteen, Minton performed or submitted to "Sexual Deviate Conduct, to-wit: fellatio and/or cunnilingus, and/or conduct constituting a substantial step toward the penetration of the anus of [S.F.] by the penis of [Minton], and/or conduct constituting a substantial step toward sexual intercourse." Id. at 51. Count IV asserted that, in violation of IC XX-XX-X-X(a)(1), "[o]n or between November, 1998 and April 8, 1999," with a child under the age of fourteen, Minton performed or submitted to "Sexual Deviate conduct, to-wit: fellatio and/or cunnilingus, and/or the penetration of the vagina of [S.F.] by the finger of [Minton,] and/or conduct constituting a substantial step toward sexual intercourse." Id. at 52. Finally, Count V alleged that "[o]n or between April 8, 1999 and the summer of 2000," Minton committed sexual misconduct with a minor, in violation of IC XX-XX-X-X. This count charged Minton with performing or submitting to "Sexual Deviate Conduct, to wit: fellatio and/or conduct constituting a substantial step toward sexual intercourse" with S.F., as a child who was at least fourteen years of age. Id. at 53.

At trial S.F. testified concerning the various acts that constituted Minton's crimes. Because of her young age when the molesting began, S.F.'s testimony at trial referred not to dates and addresses but, instead, to her grade in school and the house in which the molesting occurred. The jury returned a guilty verdict on each of the five counts and, after the jury was excused, Minton admitted to being a habitual offender. Minton now appeals his convictions. Additional facts will be added as necessary.

DISCUSSION AND DECISION

Minton first challenges the constitutionality of IC XX-XX-X-X, as amended in 1993, claiming that the limitation period under the statute violates: (1) the Ex Post Facto Clauses of both the United States Constitution and the Indiana Constitution; and (2) the Privileges and Immunities Clause of the Indiana Constitution. Whether a statute is constitutional is a question of law that we review de novo. Teer v. State, 738 N.E.2d 283, 287 (Ind.Ct. App.2000), trans. denied (2001) (citing State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997)).

I. Ex Post Facto

The 1993 amendment to IC XX-XX-X-X extended the limitation period for prosecuting the crime of child molesting from five years after the commission of the crime to any date before the alleged victim's thirty-first birthday. Minton asserts that the statute as amended violates the Ex Post Facto Clauses of both the United States Constitution and the Indiana Constitution. Specifically, he argues that the State is barred from prosecuting him for child molesting under Counts I, II, and III because the offenses were alleged to have been committed during the years 1992 through 1996—more than five years before the commencement of his 2001 prosecution. Prior to trial, Minton's counsel made a motion to dismiss Counts I, II, and III on this basis. The trial court denied Minton's motion.

Article I, § 10 of the United States Constitution prohibits the States from enacting laws with certain retroactive effects.⁶ Stogner v. California, ___ U.S. ___, ___, 123 S.Ct. 2446, 2449, 156 L.Ed.2d 544 (2003). Similarly, the Indiana Constitution provides, "`No ex post facto law ... shall ever be passed.'" Marley v. State, 747 N.E.2d 1123, 1130 (Ind.2001) (quoting IND. CONST. art. 1, § 24); Culbertson v. State, 792 N.E.2d 573, 578 (Ind.Ct.App.2003), trans. denied. Our court has noted that the ex post facto analysis is the same under both the Indiana and federal constitutions. Culbertson, 792 N.E.2d at 578; Wiggins v. State, 727 N.E.2d 1, 5 (Ind.Ct. App.2000), trans. denied (citing Spencer v. O'Connor, 707 N.E.2d 1039, 1042 (Ind.Ct. App.1999), trans. denied).

The ex post facto provisions prohibit States from enacting any law that imposes a punishment for an act that was not punishable at the time it was committed or that imposes additional punishment to that which was then prescribed. Culbertson, 792 N.E.2d at 578; Teer, 738 N.E.2d at 287; Wiggins, 727 N.E.2d at 5; Spencer, 707 N.E.2d at 1042. The focus of the ex post facto inquiry is not whether a legislative change produced a disadvantage for the defendant but, instead, whether such change altered the definition of criminal conduct or increased the penalty by which a crime is punishable. Culbertson, 792 N.E.2d at 579; Wiggins, 727 N.E.2d at 5.

Prior to the 1993 amendment, IC XX-XX-X-X provided in pertinent part as follows:

Except as otherwise provided in this section, a prosecution for an offense is barred unless it is commenced: (1) within five (5) years after the commission of a Class B, Class C, or Class D felony;....

Public Law 232-1993, SECTION 3, amended IC XX-XX-X-X to add the following:

(c) A prosecution for the following offenses is barred unless commenced before the date that the alleged victim of the offense reaches thirty-one (31) years of age:

(1) IC XX-XX-X-X(a) (Child molesting).

(2) IC XX-XX-X-X (Vicarious sexual gratification).

(3) IC XX-XX-X-X (Child solicitation).

(4) IC XX-XX-X-X (Child seduction).

(5) IC XX-XX-X-X (Incest).

Public Law 232-1993, which became effective July 1, 1993, contained a non-code provision restricting the application of amended IC XX-XX-X-X "to crimes committed after June 30, 1988." P.L. 232-1993, SEC 4. This restriction prevented the amended statute of limitation from applying to offenses for which the limitation period had already run. Therefore, the amended law did not constitute an ex post facto law because it neither imposed a punishment for an act that was not punishable at the time, nor imposed an additional punishment to that which was then prescribed.

Minton cites Stogner v. California to support his argument that IC XX-XX-X-X violates the prohibition against ex post facto laws. In Stogner, the United States Supreme Court reversed the defendant's sex-related child abuse conviction on the basis that an amendment to the California statutes of limitation violated the federal Ex Post Facto Clause by allowing the defendant to be prosecuted for an offense committed beyond the old limitation period. Our case is distinguishable.

In Stogner, the amended statute revived the defendant's previously time-barred prosecution. Here, the statute of limitation for Minton's offenses had not yet run when the 1993 amendment extended the time period for prosecution. Even the Stogner court approved the amendment of a limitation period in this context. See Stogner, ___ U.S. at ___, 123 S.Ct. at 2453 (citing with approval decisions where courts upheld extensions of unexpired statutes of limitation).

Our appellate courts have repeatedly noted:

Statutes of limitation pertain to the remedy and not to substantive civil rights. There can be no vested right in a remedy or mode of procedure. The accused in a criminal case cannot claim that the period prescribed by law in which a prosecution shall be begun shall remain the same as when the crime was committed. The period of limitation is granted in the grace of the sovereign and may be enlarged or contracted or altogether taken away, provided the accused is not entitled to go acquit before the subsequent law is enacted.

Streepy v. State, 202 Ind. 685, 687-88, 177 N.E. 897, 898 (1931) (citations...