W.C.B. v. State

855 N.E.2d 1057, 2006 Ind. App. LEXIS 2219
CourtIndiana Court of Appeals
DecidedNovember 1, 2006
DocketNo. 49A02-0509-JV-871
StatusPublished
Cited by20 cases

This text of 855 N.E.2d 1057 (W.C.B. v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
W.C.B. v. State, 855 N.E.2d 1057, 2006 Ind. App. LEXIS 2219 (Ind. Ct. App. 2006).

Opinion

OPINION

BAKER, Judge.

This matter is before us on interlocutory appeal. Appellant-respondent W.C.B. argues that the juvenile court erred in denying his motion to dismiss. Specifically, W.C.B. contends that Indiana's child molesting statute1 (1) is inherently-and unconstitutionally-eon-tradictory, (2) is unconstitutionally vague, and (8) violates Article I, section 28 of the Indiana Constitution. Finding that the statute is constitutional as written and as applied to W.C.B., we affirm the judgment of the juvenile court.

FACTS

On February 10, 2005, the State filed a delinquency petition against W.C.B., alleging that he had committed acts that would have been class B felony child molesting and class C felony child molesting had they been committed by an adult. Specifically, the State pointed to W.C.B.'s conduct with respect to H.G., his stepsister who is three years younger than he. According to the probable cause affidavit, W.C.B. began molesting H.G. when she was six or seven years old, touching her vagina under her clothes with his hand multiple times, "fore[ing] himself on her" although she told him "no" and told him to "stop." Appellant's App. p. 35. Additionally, W.C.B. inserted his penis into H.G.'s vagina on two occasions, the first occurring when she was nine years old. According to the probable cause affidavit, W.C.B.'s molestations of H.G. continued until sometime in 2008, when H.G. was approximately twelve years old.

On April 28, 2005, W.C.B. filed a motion to dismiss the State's delinquency petition, raising a number of constitutional arguments with respect to Indiana's child molesting statute. On May 31, 2005, the juvenile court denied W.C.B.'s motion. W.C.B. now brings this interlocutory appeal.

DISCUSSION AND DECISION

As we consider W.C.B's arguments that the juvenile court erred in denying his motion to dismiss, we observe that we review the denial of a motion to dismiss for an abuse of discretion. State v. Howell, 782 N.E.2d 1066, 1067 (Ind.Ct.App.20083). But the interpretation of a statute is a question of law for the courts, and we review questions of law under a de novo standard and give no deference to the trial court's conclusions. State v. J.D., 701 N.E.2d 908, 909 (Ind.Ct.App.1998).

[1060]*1060In considering a constitutional challenge to a statute, we presume that the statute is valid and place a heavy burden on the challenger, who must clearly overcome that presumption. State v. Moss-Dwyer, 686 N.E.2d 109, 112 (Ind.1997). All reasonable doubts must be resolved in favor of the statute's constitutionality. State v. Lombardo, 788 N.E.2d 653, 655 (Ind.2000).

I. Inherent Contradiction

W.C.B. first contends that Indiana Code section 35-42-4-3 is inherently, and unconstitutionally, contradictory. Essentially, W.C.B. argues that it is inherently contradictory to make the following presumptions: (1) that as a minor he cannot consent to sexual contact, but also (2) that he is able to form the requisite criminal intent to commit the act of child molesting.

The State charged W.C.B. under the child molesting statute, Indiana Code seetion 35-42-4-83, which provides, in pertinent part, as follows:

(a) A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony....
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(b) A person who, with a child under fourteen (14) 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 C felony....
W.C.B. also directs our attention to Indiana Code section 35-42-4-9, which describes the crime of sexual conduct with a minor:
(a) A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with a minor, a Class C felony....
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(b) A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than 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 sexual misconduct with a minor, a Class D felony....

The minor's consent is not a defense to either crime, inasmuch as "a victim younger than sixteen cannot consent to sexual contact. This principle ... is at the heart of the prohibitions against child molesting and sexual misconduct with a minor...." Moon v. State, 823 N.E.2d 710, 718 (Ind.Ct.App.2005) (citation omitted), trams. denied.

Initially, we observe that a panel of this court determined some time ago that the child molesting statute may, in fact, apply to perpetrators who fall within the protected age group set forth in the statute at the time they commit the molestation. J.D., 701 N.E.2d at 910. In J.D., the trial court dismissed a delinquency petition charging child molestation because it found that the defendant was unable to consent to sexual activity, inasmuch as he was under the age of fourteen when he committed the acts at issue. Id. at 909.

In considering the child molesting statute, the J.D. court first emphasized that it [1061]*1061does not prescribe a minimum age for the perpetrator of the offense. We also acknowledged, however, that "criminal intent is an element of the erime of child molesting. Accordingly, in situations where there clearly is no criminal intent, such as where very young children engage in innocent sexual play, an allegation of juvenile delinquency based upon such play would be inappropriate." Id. at 909-10 (citations omitted). Keeping in mind Indiana's well-established policy to protect the welfare of children, we concluded that the Legislature intended that minors under the age of fourteen may be adjudged to be juvenile delinquents under the child molesting statute. Id. at 910. Finally, we briefly considered the trial court's determination that the delinquency petition should be dismissed because J.D. was unable to consent to sexual activity:

Consent is neither an element to be proved in a child molestation case nor a defense to such a charge, and there is nothing in the statute that correlates age with a perpetrator's ability to consent. Nonetheless, even if the perpetrator's consent were an element of the offense, such 'consent' could be established by showing the required element of criminal intent.

Id. at 912 (citation omitted).

W.C.B. insists that J.D. is not dispositive of this case because he is raising a number of constitutional arguments not considered in that opinion.2

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Bluebook (online)
855 N.E.2d 1057, 2006 Ind. App. LEXIS 2219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wcb-v-state-indctapp-2006.