Nuerge v. State

• Decision Date: 13 March 1997
• Docket Number: No. 79A05-9605-CR-204,79A05-9605-CR-204
• Parties: James A. NUERGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1043

677 N.E.2d 1043

James A. NUERGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A05-9605-CR-204.

Court of Appeals of Indiana.

March 13, 1997.

Transfer Denied May 14, 1997.

Steven Knecht, Vonderheide & Knecht, Lafayette, for Appellant-Defendant.

Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

SHARPNACK, Chief Judge.

James A. Nuerge appeals his conviction for child molesting, a class C felony. Nuerge raises the following two issues for our review: (1) whether the evidence is sufficient to support the conviction, and (2) whether defense counsel was ineffective. In addition, we find sua sponte fundamental error with Nuerge's conviction and sentence under the wrong version of the child molesting statute, Ind.Code § 35-42-4-3. We affirm in part, reverse in part, and remand with instructions.

The record establishes that on June 4, 1994, a group of people went on a floating trip on the Tippencanoe River in Lafayette. The group included Nuerge, Violet Graham, Gordy Holtsclaw, Kelly Page, Mary "Angel" Templeton, and Templeton's twelve year old daughter, A.T. After the trip, the group returned to Graham's house to eat dinner and to sing songs. Templeton, A.T., and Nuerge slept at Graham's house. A.T. slept in an extra bedroom, while Templeton and Nuerge slept on couches in the living room.

During the night, A.T. woke to the sound of the bedroom door opening. She noticed Nuerge lying on the bed. Nuerge put his hand on A.T.'s leg and began kissing the inside of her upper thigh. Nuerge moved his hand inside the bottom of A.T.'s shorts. When A.T. told Nuerge to get out of the bedroom, Nuerge asked, "You don't want to do this?" Record, pp. 118. After A.T. rejected him, Nuerge left the bedroom.

A.T. did not immediately report the incident. A.T. felt she would not be believed because her mother and Graham were long time friends of Nuerge. Sometime after the incident, Nuerge went to Templeton's house to drive her to work. Nuerge later returned to the house where A.T. was alone. Nuerge asked A.T. whether she "had told anybody about that." Record, p. 123. When A.T. responded that she had not told anyone, Nuerge stated, "well, keep it that way." Record, p. 123.

On April 1, 1995, A.T. told Graham's daughter, Traci, about the incident. The next day, Traci told Graham and Templeton about what A.T. had stated.

On September 22, 1995, the State charged Nuerge with child molesting, a class C felony, pursuant to I.C. § 35-42-4-3(b) (Supp.1996). On December 7, 1995, after a trial, the jury found Nuerge guilty as charged. On February 28, 1996, the trial court sentenced Nuerge to six years, with two years suspended.

I.

Although not raised by Nuerge, we find fundamental error in Nuerge's conviction and sentencing under the version of I.C. § 35-42-4-3(b) as amended in July of 1994. This amendment was not in effect at the time Nuerge committed the acts alleged.

The constitutional prohibitions against ex post facto criminal sanctions, U.S CONST. art. 1, § 10; IND. CONST. art. 1, § 24, require that criminal proceedings be governed by the statutory provision in effect at the time of the offense. Mudd v. State, 483 N.E.2d 782, 785 (Ind.Ct.App.1985). The fundamental concept underlying the prohibition against ex post facto laws is that of fair notice to the defendant at the time he acts that his behavior is deemed criminal. Bryant v. State, 446 N.E.2d 364, 366 (Ind.Ct.App.1983). "[T]he offender selects the time of the crime and thus freezes the penal consequences as of that event." Mudd, 483 N.E.2d at 785 (citing Parsley v. State, 273 Ind. 46, 401 N.E.2d 1360 (1980), cert. denied, 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79).

In June of 1994, the child molesting statute in effect provided as follows:

"(b) A person who, with a child under twelve (12) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony....

* * * * *

(d) 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, or either the child of the older person, with intent to arouse or satisfy the sexual desires of either the child or the older person, commits child molesting, a Class D felony."

I.C. § 35-42-4-3 (Burns 1994) (hereinafter "the 1994 statute.") In March of 1994, the legislature passed Public Law 79-1994, an amendment to the child molesting statute. The amendment, effective July 1, 1994, provided that "A person who, with a child under fourteen (14) 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 C felony." I.C. § 35-42-4-3(b) (Supp.1996) (hereinafter "the amended statute.") The amended statute essentially merged the former I.C. §§ 35-42-4-3(b), (d) into one section by eliminating the class D felony designation and by enacting a new age restriction for the child victim.

On September 22, 1995, the State filed its information for child molesting, alleging:

"On or about June, 1994, ... James A. Nuerge, did perform fondling of or submit to touching by [A.T.], a child under fourteen (14) years of age, with the intent to arouse or satisfy the sexual desires of James A. Nuerge or [A.T.];

All of which is contrary to the form of the statute in such cases made and provided, to wit: Indiana Code 35-42-4-3(b) and against the peace and dignity of the State of Indiana."

Record, p. 8 (emphasis added). Although the State alleged Nuerge committed the acts in June of 1994, the State charged in the language of the amended statute which did not go into effect until July 1, 1994.

The trial court also instructed the jury using the amended statute. During the preliminary and final instructions, the trial court instructed the jury in part that "[t]he statute defining the offense of Child Molesting which was in force at the time of the offense charged ... [provides]: A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching...." Record, pp. 28, 45.

Nuerge was charged and brought to trial on an information which mistakenly tracked the language of the amended statute. As a result, the jury found Nuerge guilty of conduct which did not constitute a class C felony at the time he committed the acts. The State should have charged Nuerge with a class D felony under subsection (d) of the 1994 statute for touching and fondling a child twelve or older but under sixteen; the trial court should have similarly instructed the jury using the 1994 version of the statute.

The application of the amended statute to conduct which occurred prior the effective date of the amendment violated the constitutional proscription against ex post facto laws. See Phillips v. State, 518 N.E.2d 1129, 1130 (Ind.Ct.App.1988) (holding that to apply the amended statute containing an additional definition of sexual deviate conduct to defendant's conduct which occurred prior to the enactment would violate proscription against ex post facto laws.) Therefore, the trial court committed fundamental error and, as a result, we must reverse the class C felony child molesting conviction.

We next consider what follows from this reversal. Generally, we may order a modification of a conviction judgment to that of a lesser included offense because of an insufficiency of evidence on a particular element of the crime. Nunn v. State, 601 N.E.2d 334, 339 (Ind.1992) (reducing murder to the lesser included offense of involuntary manslaughter because evidence held insufficient to support the intent to kill element required under murder statute); Gilliam v. State, 508 N.E.2d 1270, 1271 (Ind.1987) (reducing defendant's conviction for attempted burglary to lesser included offense of attempted criminal trespass because the evidence found insufficient to support the intent to commit a felony at the time of entry element of burglary charge), reh'g denied.

Although the conviction here is not erroneous because the evidence is insufficient on a particular element, the rationale behind modifying the judgment in such cases is equally applicable to this case. More than thirty years ago, our supreme court reasoned that where the evidence is sufficient to prove the lesser included offense but is insufficient to prove a particular element of the greater offense, the court may modify the judgment and conviction to the lesser offense because:

"All other elements constituting the [lesser included offense] have been proved to the satisfaction of the finder of facts. It seems to us that public justice is best served by avoiding a second trial over facts already found where a fair trial has taken place. If error had occurred therein which prejudiced the accused so that the trial was unfair, the appellant would, of course, be entitled to a new trial."

Ritchie v. State, 243 Ind. 614, 189 N.E.2d 575, 579 (1963) (holding that conviction for rape should be reduced to lesser included offense of assault and battery with intent because there was a failure of proof on the penetration element of rape.)

Similarly, in this case the jury has already determined the key elements of the offense of child molesting by fondling or touching with the requisite intent. Both the 1994 statute and the amended statute prohibit a person from performing or submitting to any fondling or touching of either the child or the person with the intent to arouse or satisfy the sexual desires of either the child or the person. The two primary distinctions between the 1994 statute and the amended statute are the age of the child and the penalty. Under the...