Dennis Fecker, Jr. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 20, 2012
• Docket: 49A04-1109-CR-466
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be

FILED regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, Apr 20 2012, 9:43 am collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHAEL G. SHANLEY GREGORY F. ZOELLER PAUL J. PAGE Attorney General of Indiana Baker Pittman & Page Indianapolis, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DENNIS FECKER, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1109-CR-466 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge Cause No. 49G06-1004-FB-3380

April 20, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge Case Summary

Dennis Fecker, Jr., appeals his conviction for Class B felony sexual misconduct

with a minor. We affirm.

Issue

The sole restated issue before us is whether there is sufficient evidence to convict

Fecker of sexual misconduct with a minor as alleged in the charging information.

Facts

G.B. was born on July 20, 1994. On or around June 12 or 14, 2009, G.B. agreed

to babysit Fecker’s live-in girlfriend’s children while he and his girlfriend went to a

recurring pool tournament that was held on Wednesday nights.1 Fecker was twenty-six

years old at the time. Fecker picked G.B. up from her house and drove her to his house.

G.B. ended up spending the night with her mother’s permission, because Fecker and his

girlfriend did not return from the pool tournament until late at night. G.B. told Fecker

that she was going to be a freshman in high school in the fall and also told him that she

was looking forward to her 15th birthday in July, which is an important birthday for girls

of Mexican heritage such as G.B.

G.B. agreed to babysit for Fecker on a second occasion in June, which G.B.

recalled to be the 24th. Fecker called G.B. about the arrangements to pick her up and also

1 G.B. testified that she babysat for Fecker a total of three times, always on a Wednesday night. She could not always remember the precise dates, however. We take judicial notice of the fact that the Wednesdays in June 2009 fell on the 3rd, 10th, 17th, and 24th, and the first two in July were the 1st and 8th. 2 told her over the phone that she was pretty and asked her to email him some pictures of

herself, which she declined to do. When Fecker came to pick G.B. up, he kissed her on

the lips and told her that he had missed her. While driving to Fecker’s house, he stopped

at a gas station to get something to drink and kissed her in the car there; he also stopped

at a second location a couple of blocks from his house and kissed her again before taking

her to his house. G.B. again spent the night at Fecker’s home.

At some point, Fecker and G.B. became friends on Myspace and communicated

with each other through it. G.B. put a false date of birth of July 20, 1993, for her

Myspace account so that she could join it.

G.B. agreed to babysit for Fecker on a third occasion, which G.B. and her mother

believed to July 8, 2009. While on the phone making arrangements to pick G.B. up,

Fecker told her that he considered her to be his girlfriend and that he was not getting

along with his live-in girlfriend. Again after coming to pick G.B. up, Fecker kissed her at

her home, at a gas station, and a couple of blocks from his house. Fecker also asked G.B.

on this third occasion whether she was virgin, and she replied that she had only ever

kissed.

Fecker and his girlfriend arrived home that night after midnight; G.B. was going to

spend the night at the house as before. Fecker’s girlfriend was extremely inebriated and

he helped her upstairs. He then returned downstairs and sat on the couch next to G.B.

Fecker lifted G.B.’s legs over his and began rubbing her legs. Finally, he placed his hand

inside of her underwear and inserted his finger into her vagina. After doing so, Fecker

3 heard his girlfriend upstairs and went to check on her. When he returned, Fecker asked

G.B. if he could “finish,” and G.B. said no. Tr. p. 38. Fecker then went upstairs, and his

girlfriend drove G.B. home the next morning. Fecker told G.B. to “swear to God” that he

would not tell anyone what they had done together. Id. at 39. G.B. never babysat for

Fecker again.

Eventually, in November or December of 2009, G.B. told her mother what Fecker

had done to her. The next day, G.B. and her mother reported what had happened to

police. On May 3, 2010, the State charged Fecker with one count of Class B felony

sexual misconduct with a minor, for inserting his finger into her vagina, and two counts

of Class C felony sexual misconduct with a minor, for allegedly fondling her. The

information for all three counts alleged that the incidents occurred “On or about or

between June 10, 2009 and July 8, 2009 . . . .” App. p. 14.

At Fecker’s bench trial held on July 13, 2011, Fecker attacked the veracity of G.B.

and her mother’s testimony that the third and final time G.B. had babysat for Fecker was

July 8, 2009. Fecker obtained records of emails sent between Fecker and G.B. through

Myspace on the morning of July 8, 2009. At one point, Fecker told G.B. that “the

babysitting thing worked its selfout [sic] anyway cause [Fecker’s girlfriend] dont have to

play anywho . . . .” Ex. C. Fecker construed this message to mean that G.B. did not have

to babysit for Fecker on July 8, 2009. G.B., however, testified that she could not

remember what the message meant. In any event, both she and her mother repeatedly

4 testified that the last time she babysat for Fecker was before her fifteenth birthday on July

20, 2009.

The trial court found Fecker not guilty of the two counts of Class C felony sexual

misconduct with a minor but guilty of the Class B felony charge. Fecker now appeals.

Analysis

Fecker frames his challenge to his conviction as whether there is sufficient

evidence to support his conviction. When reviewing the sufficiency of the evidence to

support a conviction, we do not reweigh the evidence or judge the credibility of the

witnesses, and respect the fact-finder’s exclusive province to weigh conflicting evidence.

Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative

evidence and reasonable inferences therefrom that support the conviction. Id. We will

affirm if the probative evidence and reasonable inferences from that evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Id.

Beyond this general sufficiency argument, Fecker’s claim is that there was a fatal

variance between the charging information and the proof at trial regarding the date on

which he committed Class B felony sexual misconduct with a minor. Generally, the State

must prove all the material allegations in a charging information. Daniels v. State, 957

N.E.2d 1025, 1028 (Ind. Ct. App. 2011). “A variance is an essential difference between

the allegations of the charging document and the proof at trial.” Id. at 1030. Any such

variance is not fatal to a conviction unless the defendant was misled by the variance in

5 the preparation and maintenance of his or her defense, resulting in prejudice, or if the

defendant will not be protected against double jeopardy in a future criminal proceeding

covering the same event, facts, and evidence. Id. (quoting Mitchem v. State, 685 N.E.2d

671, 676 (Ind. 1997)).

The general rule is that time is not of the essence when prosecuting sex crimes

against children. See Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992) (child

molesting); Warren v. State, 701 N.E.2d 902, 907 (Ind. Ct. App. 1998) (sexual

misconduct with a minor), trans. denied.2 The exact date of the offense “becomes

important only in limited circumstances, 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.” Barger,

587 N.E.2d at 1307.

Fecker essentially argues that despite the general rule that time is not of the

essence in child molesting or sexual misconduct with a minor cases, because the State

here did in fact list dates in the charging information, it was bound to proving the offense

of which he was convicted occurred during the explicitly listed time frame. However,

when time is not of the essence of a crime, the State is only required to prove that the

offense occurred any time within the statutory period of limitations; the State is not

required to prove the offense occurred on the precise date alleged in an information. Neff

v. State, 915 N.E.2d 1026, 1032 (Ind. Ct. App. 2009), trans. denied. In particular,

2 Fecker suggests that Krebs v. State, 816 N.E.2d 469 (Ind. Ct. App. 2004), contravenes Barger, and argues that Barger “must be overturned to protect a Defendant’s right to a fair trial.” Appellant’s Br. p. 9. In fact, we noted and followed Barger in Krebs. See id. at 473 n.9. Moreover, because Barger was decided by our supreme court, it is solely within that court’s prerogative to overrule that decision. 6 “[w]hen an information alleges that an offense occurred ‘on or about’ a certain date, the

State is not limited to presenting evidence of events that occurred on that particular date

when time is not an element of the offense.” Id.

Here, G.B. did not turn sixteen years old, the age at which she could have legally

consented to sexual activity with Fecker, until July 20, 2010. With the alleged acts here

occurring in June and July of 2009, G.B.’s age at the time of the offense did not fall near

the dividing line between criminal liability and no criminal liability for Fecker. Thus,

time was not of the essence of this offense. Additionally, the State alleged that the act of

sexual misconduct leading to Fecker’s conviction occurred “On or about or between June

10, 2009 and July 8, 2009 . . . .” App. p. 14 (emphasis added). As such, the State was

not required to prove that the offense occurred no later than July 8, 2009, and it was free

to present evidence that the crime occurred on a date other than July 8, 2009.3

In any event, G.B. and her mother both testified that the last time she babysat for

Fecker, and on which occasion he placed his finger in her vagina, was on July 8, 2009.

Fecker’s attempt to question whether G.B. remembered the date accurately, based on an

unclear Myspace email message Fecker sent to her that G.B. was unable to recall, was a

matter for the factfinder to consider in weighing G.B. and her Mother’s testimony.

Regardless of the precise date, both G.B. and her Mother clearly testified that the last

3 Indeed, although not argued by Fecker, it seems undisputed that even if G.B. and her mother’s testimony is accepted regarding her last going to babysit on July 8, 2009, the offense here did not occur until after midnight, i.e., it would have occurred on July 9, 2009. 7 time G.B. babysat for Fecker was before G.B.’s fifteenth birthday on July 20, 2009.

There was no variance between the charging information and the proof at trial.

Even if there was a variance, it could not be said to be fatal because Fecker cannot

demonstrate how he was prejudicially misled by the dates alleged in the charging

information. In his opening brief, Fecker only generically asserts that “Had different

dates been alleged, Fecker may have asserted an alibi defense or other defense,” without

elaboration. Appellant’s Br. p. 9. In his reply brief, Fecker contends that if the sexual

misconduct here actually took place closer to G.B.’s fifteenth birthday, he might have

been able to raise a defense that he reasonably believed she was sixteen, if the act

occurred after July 20, 2009, because of G.B.’s misrepresentation on her Myspace

account that her birthday was July 20, 1993. See Ind. Code § 35-42-4-9(c) (providing for

defense to charge of sexual misconduct with a minor if defendant reasonably believed

child was over sixteen years old). However, the State never attempted to present any

evidence that any act of sexual misconduct occurred after July 20, 2009. Even if Fecker

had presented a defense that he thought G.B. turned sixteen on July 20, 2009, all of the

State’s evidence would have been that he engaged in deviate sexual conduct with her

when he would have thought she was fifteen, which would still make him liable for Class

B felony sexual misconduct with a minor. See I.C. § 35-42-4-9(a)(1).

Fecker also contends that he could be subjected to double jeopardy if the State

were to file another charging information alleging that he committed an act of sexual

misconduct against G.B. on a date after June 8, 2009. We disagree. The test for whether

8 a variance is fatal for double jeopardy purposes is whether the defendant will be protected

against double jeopardy in a future criminal proceeding covering the same event, facts,

and evidence. See Daniels, 957 N.E.2d at 1028. We are confident that if the State filed

an information such as Fecker fears, double jeopardy principles clearly would preclude

another trial and conviction based on precisely the same evidence and facts as that

presented in his first trial, namely, that Fecker digitally penetrated G.B.’s vagina for the

first and only time when she was babysitting for him for the third time sometime in July,

2009, before her fifteenth birthday.

Conclusion

There is sufficient evidence to support Fecker’s conviction and there is no fatal

variance between the charging information and proof at trial. We affirm.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.