Barger v. State

587 N.E.2d 1304, 1992 Ind. LEXIS 80, 1992 WL 41360
CourtIndiana Supreme Court
DecidedMarch 6, 1992
Docket49S02-9203-CR-160
StatusPublished
Cited by85 cases

This text of 587 N.E.2d 1304 (Barger v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barger v. State, 587 N.E.2d 1304, 1992 Ind. LEXIS 80, 1992 WL 41360 (Ind. 1992).

Opinions

SHEPARD, Chief Justice.

Michael G. Barger was found guilty by a jury of child molesting, a class D felony. Ind.Code § 35-42-4-3(d) (West 1986). The evidence revealed that Barger was the principal at the victim's elementary school. He invited the victim to sit on his lap, and placed the victim's hand outside his clothing on his penis. The Indiana Court of Appeals reversed, finding the evidence of the victim's age was insufficient to sustain the conviction. Barger v. State (1991), Ind. App., 576 N.E.2d 621, reh'g denied, 579 N.E.2d 621. We grant transfer, vacate the opinions of the Court of Appeals, and affirm Barger's conviction.

[1306]*1306Barger raises the following issues on appeal:

I. Whether the evidence was sufficient to sustain his conviction;
II. Whether the court erred in allowing testimony about the victim's reputation for truthfulness;
III. Whether the court erred in allowing the State to present evidence of other acts allegedly committed by Barger; and
IV. Whether the prosecutor engaged in misconduct.

I. Sufficiency of the Evidence

Barger argues the evidence was insufficient to sustain his conviction because the State failed to prove the victim was over twelve years of age at the time of the offense.

Indiana's statutes make it a felony to molest children under the age of sixteen. If the child is younger than twelve, the offense is a class C felony. Ind.Code § 35-42-4-3(b). Molesting older children, those aged twelve through fifteen, is a class D felony. It is this latter provision under which Barger was convicted:

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, 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 D felony.

Ind.Code § 35-42-4-3(d).

Barger argues that one of the elements of the class D felony is that the act occurred "with a child twelve years of age or older," and the State could not prove the victim in this case was over twelve years of age. That being so, he says, the State did not prove beyond a reasonable doubt all the elements of the crime of child molesting, a class D felony.

When reviewing a claim of insufficient evidence, this Court does not reweigh evidence or judge the credibility of the witnesses. Alfaro v. State (1985), Ind., 478 N.E.2d 670. We affirm the conviction if, looking to the evidence and reasonable inferences therefrom which support the verdict, there is substantial evidence of probative value to support the conclusion of the trier of fact. Id.

This case is unusual in that the molestation took place right around the victim's twelfth birthday. The evidence most favorable to the verdict indicates the molestation occurred in January or February of 1988. The victim turned twelve years old on February 22, 1988. We have the rare set of cireumstances in which the State apparently cannot prove definitively whether the victim was eleven years old or twelve years old at the time of the molestation. It is thus difficult to know whether Barger is guilty of a class D or a class C felony. We do not think it follows that Barger is guilty of no felony at all.1

Penal statutes should be interpreted in order to give "efficient operation to the expressed intent of the legislature." State v. Bigbee (1973), 260 Ind. 90, 93, 292 N.E.2d 609, 611. See also McAnalley v. State (1987), Ind., 514 N.E.2d 831. Penal statutes are strictly construed against the State. Cape v. State (1980), 272 Ind. 609, 400 N.E.2d 161. The statutes are not to be overly narrowed, however, so as to exclude cases the statutes fairly cover. Id. Criminal statutes "should not be wantonly narrowed, limited or emasculated and rendered ineffective, absurd, or nugatory. If possible, they should be allowed to perform their intended mission as shown by the existing evils intended to be remedied." Morris v. State (1949), 227 Ind. 630, 632, 88 N.E.2d 328, 329.

Since 1908, our legislature has prescribed a harsher penalty for sexual offenses committed against children under the age of twelve. In 1908, the penalty for the crime [1307]*1307of rape was imprisonment for not less than two years nor more than twenty-one years. The statute further provided: "[IIn cases where the female upon whom the crime is committed is a child under the age of twelve years, the punishment shall be imprisonment in the state prison for life." Burns' Annotated Indiana Statutes, Revision of 1908, Volume 1, § 2250. The statute was modified over the years, but the stronger penalty for offenses against children under the age of twelve always remained. In 1976, the child molesting statute was enacted in its present form, retaining the harsher penalty for sexual crimes against victims under twelve. See Ind. Code § 35-42-4-3. Thus, for most of this century, the legislature has enacted and reaffirmed a consistent public policy aimed at punishing offenders more harshly when the offenders commit crimes against younger children. Younger children are more in need of protection; they are less likely to be able to defend themselves and are more susceptible to adult suggestion and schemes.

This Court has had numerous occasions to analyze the purpose and operation of these statutes. Among other things, we have concluded that time is not of the essence in the crime of child molesting. Hodges v. State (1988), Ind., 524 N.E.2d 774. See also Hoehn v. State (1984), Ind.App., 472 N.E.2d 926. It is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases. The exact date becomes important only in limited cireumstances, including the case where the victim's age at the time of the offense falls at or near the dividing line between classes of felonies.

While one might always wish for statutes drafted so as to make the job of interpretation easier, we think it is inconceivable that the legislature intended through Ind.Code § 35-42-4-8 to absolve defendants who molest children around their twelfth birthdays such that it is impossible to tell whether the victim was eleven or twelve at the time of the offense.

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Bluebook (online)
587 N.E.2d 1304, 1992 Ind. LEXIS 80, 1992 WL 41360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barger-v-state-ind-1992.