Staton v. State

843 N.E.2d 75, 2006 Ind. App. LEXIS 327, 2006 WL 473926

Opinions

OPINION

SULLIVAN, Judge.

Following a jury trial, Appellant, Joshua Staton, was convicted of Sexual Misconduct with a Minor, a Class C felony.¹ Upon appeal, Staton argues that there was insufficient evidence to prove beyond a reasonable doubt that he was eighteen years of age at the time of the offense.

We affirm.

On April 20, 2004, the State charged Staton with one count of sexual misconduct with a minor, a Class C felony, stemming from an incident which occurred on January 18, 2004. A jury trial was held May 26, 2005, at the conclusion of which the jury found Staton guilty as charged. On July 11, 2005, the trial court sentenced Staton to four years imprisonment, with one year suspended and to be served on probation.

Upon appeal, Staton challenges the sufficiency of the evidence in support of his conviction, arguing specifically that the State failed to prove beyond a reasonable doubt that he was eighteen years of age at the time of the offense. At trial, the State's evidence of Staton's age at the time of the offense, all of it circumstantial, was through the testimony of the victim, E.G. Following E.G.'s testimony that she was born on July 8, 1988, thus making her fifteen years old at the time of the incident, E.G. testified that she "imagine[d]" that Staton was four years older than she. Transcript at 41. When asked if she knew when Staton graduated from high school, E.G. answered, "I'd say a year before my sister, so '08, I'm thinking." Transcript at 41. E.G. also testified that in January 2004, Staton was a freshman at Manchester College. Finally, E.G. testified that it was her "understanding" that Staton was eighteen years old at the time of the incident in January 2004. Transcript at 42.

Staton asserts that E.(G.'s testimony is insufficient to prove his age beyond a reasonable doubt because it is "unsubstantiated, tentative, and without any substantive foundation other than her subjective beliefs." Appellant's Br. at 6. The State argues that E.G.'s opinion testimony, coupled with her testimony that Staton was a freshman in college, was sufficient evidence from which the jury could have reasonably inferred that Staton was eighteen years of age at the time of the incident.

We need not consider whether the evidence presented was sufficient to establish Staton's age at the time of the offense because Staton did not follow the proper procedure for preserving the issue of his age for appellate review. In McGowan v. State, 267 Ind. 16, 17-18, 366 N.E.2d 1164, 1165 (1977), our Supreme Court held that an accused is presumed to have attained the age necessary for a conviction of a crime unless the presumption is challenged through a motion to dismiss and supporting memorandum. Where the accused does not raise the issue of his age in a motion to dismiss, the issue is not available upon appeal. Id.; see also Smith v. State, 270 Ind. 1, 382 N.E.2d 937 (1978); Owen v. State, 269 Ind. 513, 381 N.E.2d 1235 (1978); Roddy v. State, 182 Ind.App. 156, 394 N.E.2d 1098 (1979).² Here, Staton does not claim, and our review of the record does not indicate that Staton filed a motion to dismiss challenging his age. He has therefore waived the issue of his age for appellate review.³

The judgment of the trial court is affirmed.

FRIEDLANDER, J., 'concurs. VAIDIK, J., concurs in result with separate opinion.

Footnotes

1

. Ind.Code § 35-42-4-9(a) (Burns Code Ed. Repl.2004).

2

. In Finch v. State, 454 N.E.2d 856 (Ind.1983), the Supreme Court held that the McGowan holding withstood a due process challenge on the basis of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

3

. In Judge Vaidik's separate concurrence in result, she sets forth the logical premise, supported by persuasive policy considerations, that if a particular fact is an element of the crime it must be proved beyond a reasonable doubt by the State. Failure by the defendant to raise this issue in a Motion to Dismiss the charge should not relieve the State of this burden.

Nevertheless, we do not write on a clean slate in this regard. Therefore, unless and until our Supreme Court overrules or modifies its decision in McGowan, supra, we feel constrained to follow its plain holding.