Snider v. State, No. 1282S482
| Docket Nº | No. 1282S482 |
| Citation | 468 N.E.2d 1037 |
| Case Date | October 10, 1984 |
| Court | Supreme Court of Indiana |
Page 1037
v.
STATE of Indiana, Appellee.
Page 1038
Nile Stanton, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen. of Ind., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.
DeBRULER, Justice.
This is an appeal from the denial of post-conviction relief. Petitioner below, appellant here, was convicted of child molesting. That conviction was affirmed on direct appeal. Snider v. State, (1980) Ind., 412 N.E.2d 230. The basis of the petition below was the contention that the jury instructions, in reciting the elements of the crime of child molesting, did not include a criminal intent element, and consequently the jury was never provided with the opportunity to consider any form of mens rea or intent, and his conviction therefore deprived him of liberty without due process of law. The trial court reasoned that the alleged error was not fundamental error and had been waived in a prior proceeding. The basis of this appeal is that the determination of the trial court that the alleged error was not fundamental was itself error.
The judgment of the lower court of which the determination of no fundamental error is a part, is presumptively valid in this Court on appeal, and the burden is now on appellant to persuade us that such determination is erroneous. The appellate argument commences with consideration of the court's Instruction # 17 which allegedly embodies the error.
"INSTRUCTION NUMBER 17
The crime of Child Molesting is defined by statute as follows:
A person who, with a child under twelve (12) years of age performs or submits to sexual intercourse or deviate sexual conduct, commits Child Molesting, a Class B felony. However, the offense is a Class A felony if it is committed by using or threatening the use of deadly force, or while armed with a deadly weapon.
To convict the defendant of child molesting the State must have proved each of the following elements:
1. (a) the defendant performed or submitted to sexual intercourse.
(or)
(b) the defendant performed or submitted to deviate sexual conduct;
2. With a child under twelve years of age.
If the State failed to prove each of these elements beyond a reasonable doubt, the defendant should be found not guilty.
If the State did prove each of the elements beyond a reasonable doubt, then you should find the defendant guilty of Child Molesting, a Class B felony.
If you further find beyond a reasonable doubt that the Child Molesting was
(a) committed by using,
Page 1039
(or)(b) threatening the use of deadly force, then you should find the defendant guilty of Child Molesting, a Class A felony."
This instruction tracks Ind.Code Sec. 35-42-4-3, the child...
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State v. Keihn, No. 18S02-8908-CR-616
...of mens rea to be required by viewing the statute as adoptive of the common law offense of sodomy. In Snider v. State (1984), Ind., 468 N.E.2d 1037, the lack of a mens rea element in the instructions was held not to constitute fundamental error. Criminal offenses defined in statutes apart f......
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Mullins v. State, No. 3-185A8
...necessary for a conviction of child molestation. The Supreme Court of Indiana dealt with the same issue in Snider v. State (1984), Ind., 468 N.E.2d 1037, although the case had come before it on a slightly different procedural posture. In Snider, the defendant never raised the trial court's ......
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Lindsey v. State, No. 32A01-0802-PC-77.
...bypass an obstacle to reaching the merits of a free standing claim erected by a prior procedural default." Snider v. State, (1984) Ind., 468 N.E.2d 1037, An error characterized as fundamental is one which is "blatant" and which if not rectified would deny the petitioner "fundamental due pro......
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Wells v. State, No. 1-585A113
...constituted an unequivocal waiver. Mickens, at 522; Marts, at 65; Bailey, at 1263; Gee, at Page 789 1117; Snider v. State (1984), Ind., 468 N.E.2d 1037, 1039; Williams v. State (1984), Ind., 464 N.E.2d 893, 894; Ross, at 421; Henson, at 81; Hollonquest, at 39; Eliacin v. State (1978), 269 I......
-
State v. Keihn, No. 18S02-8908-CR-616
...of mens rea to be required by viewing the statute as adoptive of the common law offense of sodomy. In Snider v. State (1984), Ind., 468 N.E.2d 1037, the lack of a mens rea element in the instructions was held not to constitute fundamental error. Criminal offenses defined in statutes apart f......
-
Mullins v. State, No. 3-185A8
...necessary for a conviction of child molestation. The Supreme Court of Indiana dealt with the same issue in Snider v. State (1984), Ind., 468 N.E.2d 1037, although the case had come before it on a slightly different procedural posture. In Snider, the defendant never raised the trial court's ......
-
Lindsey v. State, No. 32A01-0802-PC-77.
...bypass an obstacle to reaching the merits of a free standing claim erected by a prior procedural default." Snider v. State, (1984) Ind., 468 N.E.2d 1037, An error characterized as fundamental is one which is "blatant" and which if not rectified would deny the petitioner "fundamental due pro......
-
Wells v. State, No. 1-585A113
...constituted an unequivocal waiver. Mickens, at 522; Marts, at 65; Bailey, at 1263; Gee, at Page 789 1117; Snider v. State (1984), Ind., 468 N.E.2d 1037, 1039; Williams v. State (1984), Ind., 464 N.E.2d 893, 894; Ross, at 421; Henson, at 81; Hollonquest, at 39; Eliacin v. State (1978), 269 I......