Brian W. Ellison v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 6, 2016
• Docket: 92A05-1604-CR-964
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 06 2016, 8:31 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony S. Churchward Gregory F. Zoeller Anthony Churchward, P.C. Attorney General of Indiana Fort Wayne, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian W. Ellison, September 6, 2016 Appellant-Defendant, Court of Appeals Case No. 92A05-1604-CR-964 v. Appeal from the Whitley Circuit Court State of Indiana, The Honorable James R. Heuer, Appellee-Plaintiff. Judge Trial Court Cause No. 92C01-1511-FA-86

Bradford, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016 Page 1 of 5 [1] Appellant-Defendant Brian Ellison pled guilty to sexually molesting his two

daughters on multiple occasions between 2007 and 2014. Ellison was

designated as a credit restricted felon by the trial court. The credit restricted

felon statute went into effect in 2008. On appeal, Ellison argues that the trial

court erred in designating him a credit restricted felon because his offenses

against one of the victims may have occurred prior to the effective date of the

statute. Because there is evidence that at least some of the molestations

occurred after the effective date of the statute, we affirm the trial court’s

judgment.

Facts and Procedural History [2] Between the dates of January 1, 2007 and June 30, 2014, Ellison, on multiple

occasions, sexually molested his daughter, A.E. Between the dates of March 3,

2010 and June 30, 2014, Ellison, on multiple occasions, sexually molested his

daughter, S.S. On February 2, 2016, Ellison pled guilty to two counts of Class

B felony child molesting and two counts of Class C felony child molesting. In

exchange for his guilty plea, Appellee-Plaintiff the State of Indiana dismissed

several other charges of child molesting. The parties also agreed that the trial

court would have the discretion to order his sentences run concurrently or

consecutively and that his initial executed sentence would not exceed forty

years. The trial court sentenced Ellison to an aggregate term of thirty-six years

with thirty to be executed and six suspended to probation. The trial court also

Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016 Page 2 of 5 designated Ellison a credit restricted felon and ordered that he register as a sex

offender upon his release to probation.

Discussion and Decision [3] On appeal, Ellison claims that the trial court erred by designating him a credit

restricted felon with regards to his offenses committed against A.E.1

Specifically, Ellison argues that those offenses may have occurred prior to the

date when the credit restricted felon statute was enacted. For its part, the State

argues that there was sufficient evidence that at least one incident of

molestation occurred after the effective date of the credit restricted felon statute

and so the trial court did not err in determining Ellison to be a credit restricted

felon.

[4] “Both the United States Constitution and Indiana Constitution prohibit ex post

facto laws.” Upton v. State, 904 N.E.2d 700, 705 (Ind. Ct. App. 2009), trans.

denied.; U.S. CONST. ART. I, § 10; IND. CONST. ART. 1, § 24. “‘To fall within

the ex post facto prohibition, a law must be retrospective—that is, it must apply

to events occurring before its enactment—and it must disadvantage the offender

affected by it.’” Upton, 904 N.E.2d at 705 (quoting Paul v. State, 888 N.E.2d

818, 825-826 (Ind. Ct. App. 2008)).

1 Credit restricted felons earn less good time credit for each day the person is imprisoned for a crime or while confined awaiting trial or sentencing. Ind. Code § 35-50-6-3.

Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016 Page 3 of 5 [5] Indiana Code section 35-31.5-2-72, previously section 35-41-1-5.5, defines

“credit restricted felon,” and includes “a person who has been convicted of

child molesting involving sexual intercourse or deviate sexual conduct if the

offender is at least twenty-one years old and the victim is less than twelve years

old.” The credit restricted felon statute became effective on July 1, 2008. “At

the time of sentencing, a court shall determine whether a person is a credit

restricted felon.” Ind. Code § 35-38-1-7.8. This determination must be based

upon “(1) evidence admitted at trial that is relevant to the credit restricted

status; (2) evidence introduced at the sentencing hearing; or (3) a factual basis

provided as part of a guilty plea.” Id.

[6] The sole question here is whether there is sufficient evidence to support the trial

court’s determination that Ellison molested A.E. on or after July 1, 2008, the

effective date of the credit restricted felon statute. A.E. told police that she lived

in two different locations where Ellison molested her: in a mobile home where

the family lived between 2007 and 2012, and a home the family lived in

between 2012 and 2015. A.E. also reported molestations were frequent and

happened when her mother was not home and when Ellison was alone with the

children. Because A.E. reported that at least some of the molestations occurred

at the family’s second home, and because the family did not move into that

home until 2012, there was sufficient evidence for the trial court to determine

that Ellison molested A.E. after the credit restricted felon statute went into

effect.

Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016 Page 4 of 5 [7] In Sharp v. State, Sharp molested his victim every other weekend between

August 1, 2007 and August 31, 2008. 970 N.E.2d 647, 648 (Ind. 2012). The

trial court designated Sharp to be a credit restricted felon. On appeal, Sharp

argued that there was insufficient evidence to support his designation as a credit

restricted felon because there was no specific finding that any of the acts of

molestation occurred after the effective date of the credit restricted felon statute.

The Indiana Supreme Court rejected this argument in the following footnote:

We need not explore the nature of the ex post facto prohibition, however, because C.S. testified at trial that the defendant “touched my private area,” Tr. at 76, “[a]bout every other weekend I was over [at the defendant’s house in the two years preceding October 6, 2008],” Tr. at 74, 77. This was sufficient evidence from which a reasonable jury could conclude that the defendant molested C.S. after July 1, 2008, the effective date of the statute.

Id. at 648 n. 1. The same logic applies to the instant case and the trial court

properly designated Ellison a credit restricted felon.

[8] The judgment of the trial court is affirmed.

Pyle, J., and Altice, J., concur.

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