Chad A. Keister, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Court of Appeals Case No. 22A-CR-1531
Court of Appeals of Indiana
February 8, 2023
Opinion by Judge Robb
Appeal from the Warrick Circuit Court; The Honorable Greg A. Granger, Judge; Trial Court Cause No. 87C01-1605-F4-217
Yvette M. LaPlante
LaPlante LLP
Evansville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Daylon L. Welliver
Deputy Attorney General
Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Chad A. Keister,
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
February 8, 2023
Court of Appeals Case No.
22A-CR-1531
Appeal from the Warrick Circuit
Court
The Honorable Greg A. Granger,
Judge
Trial Court Cause No.
87C01-1605-F4-217
Opinion by Judge Robb
Judges Mathias and Foley concur.
Case Summary and Issue
[1] Following a jury trial, Chad Keister was convicted of two counts of child
molesting, one as a Class C felony and one as a Level 4 felony. He was given
an aggregate sentence of six years with two years suspended to probation.
Keister appeals his convictions, raising one issue for our review: whether the
trial court erred in instructing the jury. Concluding the trial court gave an
instruction that was not supported by the evidence and the error prejudiced
Keister’s substantial rights, we reverse in part and remand.
Facts and Procedural History
[2] In 2008, Keister began dating A.L. A.L. had a daughter, A.W., who was born
in August of 2001. After approximately a year of dating, Keister and A.L.
moved in together, living first in Evansville and then in Newburgh. They lived
on Kenwood Court in Newburgh for three or four years and then moved to
Richmond Drive in Newburgh. They lived on Richmond Drive for three years.
[3] “Around 2012” when A.W. was eleven years old and the family was living on
Kenwood Court, Keister touched A.W. inappropriately while purportedly
giving her a massage. Transcript, Volume II at 14. He did this “[a]round eight
times.” Id. at 15. This continued until A.W. was twelve years old and
“stopped agreeing” to the massages that precipitated the touching. Id. at 17.
Once while they still lived on Kenwood Court and once in 2014 after they
were playing computer games. See id.
[4] A.W. was reluctant to tell her mother about the molestation because her mother
loved Keister and she “didn’t want to hurt her.” Id. at 22. But after a sex
education talk at school in December 2015 when A.W. was fourteen years old
that instructed students “if something has happened to you[,] you should say
something[,]” she spoke to a school counselor and disclosed the molestation.
Id. at 21. She later spoke to a forensic interviewer at Holly’s House and
described the incidents. Both in this interview and in her testimony at trial,
A.W. was unable to pinpoint the exact dates that the incidents occurred. The
interviewer noted that “we really don’t try to get dates and times, that’s very
specific for children. We try to get a timeframe.” Id. at 55 (cleaned up).
“Especially if they associate it with trauma, it can be hard to recall dates and
times.” Id. at 58. After the disclosure, Keister and A.L. broke up and no longer
lived together.
[5] In May 2016, the State charged Keister with two counts of child molesting as
follows:
Count 1:
Child Molesting
I.C. 35-42-4-3(b) A Class C Felony
[B]etween August 27, 2012 and June 30, 2014 . . ., Chad Keister
did perform fondling or touching with A.W., a child under the
age of fourteen years, with the intent to arouse or satisfy the
sexual desires of the child or [himself.]
* * *
Count 2:
Child Molesting
I.C. 35-42-4-3(b) A Level 4 Felony
[B]etween July 1, 2014 and August 26, 2015 . . ., Chad Keister
did perform fondling or touching with A.W., a child under the
age of fourteen years, with the intent to arouse or satisfy the
sexual desires of the child or [himself.]
Appellant’s Appendix, Volume 2 at 29-30.
breasts while giving her a massage in 2012 but she did not recall what month or
season it was. He touched her breasts while giving her massages several
additional times in 2012. Once, also in 2012, he put his hand down her pants
and touched her vaginal area over her underwear. Nothing happened in 2013
but in 2014, Keister touched her abdomen and breasts while she was playing a
game.
[7] After both sides had presented their evidence, the State proposed the following
final jury instruction:
No. 6, the State is not required to prove that the crime charged
was committed on the particular date or during a particular time
period alleged in the charging Information.
Tr., Vol. II at 78.1
Keister lodged an objection:
[P]art of this requires them to prove this occurred while or before
she was 14 years of age. So, they have to prove with some
specificity . . . when this occurred. [Indiana Code] 35-34-1-2
subsection (5) requires they must charge with sufficient
particularity to show that it’s within the period of limitations
applicable. I’m concerned that A, this proposed instruction’s
gonna be confusing to the jury. [A]nd B, they need to allege with
some sufficiency what dates these occurred. We can’t give threeyear periods and expect people to be able to defend against that.
Id. at 65-66 (cleaned up). The trial court gave the instruction to the jury over
Keister’s objection. The jury found Keister guilty of both counts. He now
appeals.
[8] Keister contends the trial court erred in instructing the jury, specifically by
giving the jury an instruction that contained a misstatement of law and could
have misled the jury.
[9] We review a trial court’s decision to give or refuse a jury instruction for an
abuse of discretion. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). When
we evaluate a challenge to the giving of a certain jury instruction on appeal, we
look at whether the instruction correctly states the law and whether there is
evidence in the record to support the giving of the instruction.2 Id.
Instructional errors are harmless where a conviction is clearly sustained by the
evidence and the instruction would not likely have impacted the jury’s verdict,
Randolph v. State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied, and
we will reverse a conviction only if the appellant demonstrates that the error
prejudiced his substantial rights, Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019). In other words, an instructional error will result in reversal only when
we “cannot say with complete confidence” that a reasonable jury would have
returned a guilty verdict even if the instruction had not been given. Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001) (citation omitted).
[10] Keister was charged with committing two counts of child molesting by fondling
or touching a child under fourteen years of age. Count I alleged an act of
molestation that occurred between August 27, 2012 and June 30, 2014, and
Count II alleged an act of molestation that occurred between July 1, 2014 and
August 26, 2015. A.W. testified that Keister touched her inappropriately
approximately eight times in 2012 and once in 2014. Presumably, the reason
for splitting the charges in this manner was that the criminal code was revised
effective July 1, 2014, and what had been a Class C felony prior to July 1, 2014
was a Level 4 felony after. See Johnson v. State, 36 N.E.3d 1130, 1133 (Ind. Ct. App. 2015), trans. denied;
punishable by two to eight years with an advisory sentence of four years,
years with an advisory sentence of four years,
[11] At the close of evidence in this case, the State proposed an instruction advising
the jury “that the State does not have to prove dates.” Tr., Vol. II at 64.
Keister objected, noting that the State was required “to prove this occurred
while or before she was 14 years of age.” Id. at 65. He further expressed
concern that the instruction would be confusing to the jury. See id. at 66.
date of the offense with sufficient particularity to show that the offense was
committed within the period of limitations applicable to that offense.” The
State must also allege “the time of the offense as definitely as can be done if
time is of the essence of the offense[.]”
time is not of the essence of the offense, however, the State is not confined to
proving the commission of the offense on the date alleged in the information
but may prove the commission at any time within the statutory period of
limitations. Love v. State, 761 N.E.2d 806, 809 (Ind. 2002).
[13] Our supreme court has concluded that in most circumstances, time is not of the
essence in the crime of child molesting. Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). “It is difficult for children to remember specific dates, particularly
when the incident is not immediately reported as is often the situation in child
molesting cases. The exact date 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.” Id.
correct statement of law. We further agree that the instruction is supported by
the evidence insofar as the evidence showed A.W. was under fourteen when
Keister molested her. See Tr., Vol. II at 10 (A.W. testifying that her date of
birth is August 27, 2001); id. at 26-27 (A.W. testifying that Keister
inappropriately touched her multiple times in 2012 and once in 2014). Even
though the two-count information collectively alleged that the acts occurred on
or before August 26, 2015 – the day before A.W. turned fourteen – there is no
evidence to support any acts occurring in 2015 such that the jury could have
used the challenged instruction to find that Keister touched A.W.
inappropriately when she was over the age of fourteen.
[15] But proving the age of the victim falls within the parameters of the statute at the
time of the offense is not the only circumstance in which time is of the essence.
See Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992) (stating the exact date is important in limited
circumstances, including where the victim’s age falls at or near the dividing line
between classes of felonies). And we believe the facts of this case present
another of those limited circumstances.
alleging acts from August 27, 2011 to June 30, 2014, is clearly proven by
A.W.’s testimony about the 2012 acts even without more specific testimony.
The trial court’s instruction is not troublesome as to Count I.
[17] But A.W. also testified to one act of molestation in 2014. She did not pinpoint
a more specific date or a narrower time period, and the State did not try to elicit
any testimony from which a date or a time period could be inferred, such as
which grade she was in at school, or what type of clothing she was wearing (i.e.
shorts versus a winter coat) when it happened. With the entirety of 2014 on the
table as to the date of the offense, the question is whether instructing the jury
that the specific time period does not matter is problematic as to Count II. For
the following reasons, we conclude it was.
[18] The evidence showed the single 2014 act may have occurred in the time period
alleged in Count II (July 1, 2014 to August 26, 2015) but it also may also have
occurred in the time period alleged in Count I (August 27, 2011 to June 30,
2014). Because the classification of and penalties for crimes changed in mid2014, it does matter to that extent when the 2014 molestation occurred. Based
on the evidence elicited by the State, we simply cannot know into which count
the 2014 act should be sorted.
instructions, including the date ranges alleged for each count. See Tr., Vol. II at
76-77. But by instructing the jury thereafter that the State did not have to prove
the 2014 offense occurred on a particular date or during the particular time period
alleged in the information, the jury could have been misled into believing that if
the single act of molestation occurred anytime in 2014, it could find Keister
guilty of Count II. Because the two counts split 2014 in half, to convict Keister
of Count II as a Level 4 felony, the State was at least required to prove that the
2014 act occurred after July 1, 2014, when that classification became the law.
But the instruction tendered by the State and given by the trial court did not
require the jury to make that distinction.
[20] The error in giving the instruction prejudiced Keister’s substantial rights. If all
the acts occurred prior to July 1, 2014, he was guilty of only Count I and should
not have been convicted of a second count and subject to a second penalty.
And not only was he subjected to a second penalty, but it was also a harsher
possible penalty. If Keister committed the 2014 act of molestation in the first
half of 2014, it would have been a Class C felony punishable by up to eight
years. But he was convicted of committing an act of molestation in the last half
of 2014, and therefore the crime was a Level 4 felony punishable by up to
twelve years.
alleviating the State’s burden to prove the date of the offense was not supported
by the evidence and was likely to confuse the jury. Keister’s substantial rights
were prejudiced by the error because his conviction on Count II was not clearly
sustained by the evidence, and we cannot say with complete confidence that the
jury would have found him guilty of that count if the instruction had not been
given. Accordingly, we must reverse Keister’s conviction of Count II.
[22] Where a conviction is reversed because of an instructional error, retrial is
permissible when the State presented sufficient evidence in the original trial to
sustain the conviction. Yeary v. State, 186 N.E.3d 662, 682 (Ind. Ct. App. 2022).
Here, however, there is insufficient evidence that Keister committed an act of
child molesting after July 1, 2014. Therefore, we remand to the trial court to
vacate Keister’s conviction of Count II and issue a new sentencing order on
Count I only.
Conclusion
[23] The trial court erred in giving the challenged instruction and the error was not
harmless. Therefore, Keister’s conviction of Count II is reversed and remanded
to the trial court with instructions.
[24] Reversed in part and remanded.
Mathias, J., and Foley, J., concur.