Swopshire v. State

• Decision Date: 27 September 2021
• Docket Number: Court of Appeals Case No. 21A-CR-224
• Citation: 177 N.E.3d 98
• Parties: Jason B. SWOPSHIRE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

177 N.E.3d 98

Jason B. SWOPSHIRE, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-224

Court of Appeals of Indiana.

FILED September 27, 2021

Attorneys for Appellant: Mark A. Thoma, Randall J. Hammond, Leonard, Hammond, Thoma & Terrill, Fort Wayne, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] Jason B. Swopshire brings this interlocutory appeal from the trial court's denial of his motion to dismiss. Swopshire raises the following two issues for our review:

1. Whether applying amended statutes of limitation to the State's charges against him, which alleged four counts of sexual misconduct with a minor and one count of attempted sexual misconduct with a minor, violates the federal and state constitutional prohibitions against ex post facto laws.

2. Whether applying the amended statutes of limitation here violates the Privileges and Immunities Clause of the Indiana Constitution.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] On November 25, 2019, the State charged Swopshire as follows:

• Count 1:¹ sexual misconduct with a minor, as a Class B felony, for engaging in sexual intercourse with a minor between fourteen and sixteen years of age, which act was alleged to have occurred "[s]ometime during the period ... between the 6th day of March, 2009[,] and the 2nd day of March, 2011 ...."

• Count 2: sexual misconduct with a minor, as a Class B felony, for "plac[ing] his mouth on the female sex organ" of a minor between fourteen and sixteen years of age, which act was alleged to have occurred "[s]ometime during the period ... between the 6th day of March, 2009[,] and the 2nd day of March, 2011 ...."

• Count 3: sexual misconduct with a minor, as a Class B felony, for "plac[ing] his penis in the mouth" of a minor between fourteen and sixteen years of age, which act was alleged to have occurred "[s]ometime during the period ... between the 6th day of March, 2009[,] and the 2nd day of March, 2011 ...."

• Count 4: attempted sexual misconduct with a minor, as a Class B felony, for "attempt[ing] to place his penis in the anus" of a minor between fourteen and sixteen years of age, which act was alleged to have occurred "[s]ometime during the period ... between the 1st day of January, 2011[,] and the 2nd day of March, 2011 ...."

• Count 5: sexual misconduct with a minor, as a Class C felony, for "fondling or touching" a minor between fourteen and sixteen years of age, with the intent to arouse or satisfy the sexual desires of Swopshire or the victim, which act was alleged to have occurred "[s]ometime during the period ... between the 6th day of March, 2009[,] and the 2nd day of March, 2011 ...."

Appellant's App. Vol. II at 13-17.

[4] According to the probable cause affidavit filed with the charges, the victim of each alleged offense was the same, and she lived with Swopshire at the time of the alleged offenses. Sometime thereafter, she reported the alleged offenses to Fort Wayne Police Department officers, stating that the facts underlying Count 1 occurred "on average once every other day" during the identified timeframes, while the facts underlying Counts 2, 3, and 5 had occurred on numerous occasions during the identified timeframes. Id. at 12. Also during the relevant times, Swopshire was in his mid-thirties.

[5] After the State had filed its charges, Swopshire moved to dismiss the charges on the ground that they had been filed outside the applicable statute of limitations. He also argued that applying amended versions of the statute of limitations against him would violate the constitutional prohibitions against ex post facto laws as well as the Indiana Constitution's guarantee of equal privileges and immunities. After a hearing, the trial court denied Swopshire's motion to dismiss. The court certified its order for interlocutory appeal, which we accepted.²

Discussion and Decision

Standard of Review and Overview

[6] Swopshire's motion to dismiss challenged the constitutionality of statutory amendments to the limitations period for his alleged offenses. We review such arguments de novo. See, e.g. , Tyson v. State , 51 N.E.3d 88, 90-91 (Ind. 2016).

[7] Swopshire's arguments on appeal turn on the original statute of limitations that applied to the alleged offenses and two subsequent amendments to that limitations period. The State alleged that each of the five offenses occurred sometime between March 6, 2009, and March 2, 2011. At all times in that period, the original statute of limitations for sexual misconduct with a minor, both as a Class B felony and as a Class C felony, was five years from the date of the offense.³ Ind. Code § 35-31-4-2(a)(1) (2006).

[8] However, effective July 1, 2013, the Indiana General Assembly revised the limitations periods for sex offenses committed against children. The 2013 amendment included expanding the statute of limitations for sexual misconduct with a minor, both as a Class B felony and as a Class C felony, to ten years from the date of the offense. I.C. § 35-31-4-2(m) (2013) ; see also I.C. § 11-8-8-4.5(a)(8) (2013). And, effective July 1, 2019, our legislature again amended the relevant limitations period. The 2019 amendment stated that, for any offense of sexual misconduct with a minor, prosecution "is barred unless commenced before the date that the alleged victim of the offense reaches thirty-one (31) years of age ...."⁴ I.C. § 35-41-4-2(e)(5) (2019).

[9] On appeal, Swopshire argues that the original, five-year limitations period must apply to the alleged offenses because applying either of the amended limitations periods against him would violate the constitutional prohibitions against ex post facto laws. He further argues that applying the 2013 and 2019 amendments here would violate the Privileges and Immunities Clause of the Indiana Constitution. We address each argument in turn.

Issue One: Alleged Ex Post Facto Violations

[10] We first address Swopshire's argument that the original five-year limitations period applies to the State's charges and, as such, that the information was untimely. In particular, Swopshire initially asserts that the 2013 amendment cannot constitutionally be applied to him. Swopshire is not correct.

[11] We have repeatedly held that extensions of statutes of limitation are applicable to crimes that have not expired at the time the extension takes effect. As we have thoroughly explained:

Article I, § 10 of the United States Constitution prohibits the States from enacting laws with certain retroactive effects. Stogner v. California , 539 U.S. 607, 123 S.Ct. 2446, 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.^[5]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. 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.

* * *

[The defendant] cites Stogner v. California to support his argument that [an extension of the statute of limitations for child molesting from five years to ten years] 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 [the defendant's] offenses had not yet run when the ... amendment extended the time period for prosecution. Even the Stogner [C]ourt approved the amendment of a limitation period in this context. SeeStogner , 539 U.S. at [618], 123 S.Ct. 2446 (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 ....

Streepy v. State , 202 Ind. 685, 687-88, 177 N.E. 897, 898 (1931) (citations omitted); see alsoWallace v. State , 753 N.E.2d 568, 569 n.1 (Ind. 2001) ; Greichunos v. State , 457 N.E.2d 615, 616 (Ind. Ct. App. 1983). Accordingly, the extension of the limitation period ... does not violate the state or federal Ex Post Facto Clauses.

Minton v. State , 802 N.E.2d 929, 933-35 (Ind. Ct. App. 2004) (emphases in original; footnote and some citations omitted), trans. denied. As the United States Court of Appeals for the Seventh Circuit has more succinctly stated, "it is well settled law that applying procedural statute...