Bass v. State
2011 Ind. App. LEXIS 633
| Ind. Ct. App. | 2011Background
- Bass appeals his convictions for Class C child molesting and Class C attempted child molesting and aggregate sentence of seven years with two suspended.
- Victim EB is 13; the offenses occurred during EB’s visits at her sister Anna’s Winslow, Indiana home where Bass lived.
- First incident: Bass woke EB, rubbed her back and sides, exposed his shorts, and demanded entertainment.
- Second incident: Phyllis saw Bass with one hand on his crotch near EB while she slept, with EB’s blanket pulled up.
- State charged under IC 35-42-4-3(b) and IC 35-41-5-1; trial court denied Bass’s motion for directed verdict; closing arguments included objections overruled and a guilty verdict with concurrent seven-year sentences.
- The court affirmatively held that touching a child’s body beyond breasts/genitals can sustain a conviction, and Bass’s challenges to prosecutorial conduct and sentence were rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Directed verdict sufficiency | State argued circumstantial evidence supports both counts | Bass contends insufficient evidence of intent and attempt | No error; evidence supports conviction for both counts |
| Prosecutorial misconduct waiver and fundamental error | State claims no fundamental error; objections cured | Bass asserts pervert references and targeting explanation were fundamental error | No fundamental error; claims waived and not reversible |
| Sentence appropriateness | Seven years with two suspended is within statutory range and appropriate | Sentence is inappropriate given nature and Bass’s character | Affirmed; sentence not inappropriate |
Key Cases Cited
- McClendon v. State, 910 N.E.2d 826 (Ind.Ct.App.2009) (standard for directed verdict; sufficiency review)
- Nuerge v. State, 677 N.E.2d 1043 (Ind.Ct.App.1997) (sufficient evidence to sustain child molesting without breast/genital touching)
- Altes v. State, 822 N.E.2d 1116 (Ind.Ct.App.2005) (touching various body parts can sustain child molesting)
- Brown v. State, 799 N.E.2d 1064 (Ind.2003) (prosecutorial misconduct claims require admonishment/mistrial or fundamental error)
- Ellison v. State, 717 N.E.2d 211 (Ind.Ct.App.1999) (closing remarks not fundamental error when evidence strong and curative instructions given)
- Lainhart v. State, 916 N.E.2d 924 (Ind.Ct.App.2009) (prosecutorial misconduct claims require preservation and potential fundamental error)