Snider v. State

Decision Date10 October 1984
Docket NumberNo. 1282S482,1282S482
Citation468 N.E.2d 1037
PartiesRobert SNIDER, Sr., Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

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

CHILD MOLESTING

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,

(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 molesting statute, pursuant to which the initial charge against appellant was made. The statute does not separately and explicitly identify a criminal intent or state of mind, and this instruction follows suit. To complete the procedural story here, it should be pointed out, that there was no objection to this instruction or other instructions at the initial trial because they did not specify a criminal intent; and such complaint was not made in the motion to correct errors, or in appellant's direct appeal. The complaint was first made in appellant's petition for post-conviction relief; an answer alleging waiver was filed by the state; and the judgment denying relief without reaching the merits of appellant's complaint, followed. This defective instruction complaint does not accompany a claim of ineffective counsel, nor was any attempt made at the post-conviction hearing to justify the fact that the complaint was not raised in prior proceedings. The complaint is free standing in the post-conviction proceeding.

Appellant is correct in his perception that fundamental error is the key issue in this appeal. This is so, not because a satisfactory ground for post-conviction relief must necessarily be so egregious as to rise to the level of fundamental error and to deny due process, but because it is through a showing of...

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22 cases
  • State v. Keihn
    • United States
    • Indiana Supreme Court
    • August 10, 1989
    ...an implied element 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 ......
  • Mullins v. State
    • United States
    • Indiana Appellate Court
    • December 19, 1985
    ...the mens rea 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 t......
  • Lindsey v. State
    • United States
    • Indiana Appellate Court
    • June 13, 2008
    ...court can 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, 1039. An error characterized as fundamental is one which is "blatant" and which if not rectified would deny the petitioner "fun......
  • Wells v. State
    • United States
    • Indiana Appellate Court
    • September 23, 1985
    ...in his direct appeal constituted an unequivocal waiver. Mickens, at 522; Marts, at 65; Bailey, at 1263; Gee, at 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 (......
  • Request a trial to view additional results

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