Tony Wayne HAWK, Appellant (Defendant Below) v. STATE of Indiana, Appellee.
No. 2-1185-A-365
Court of Appeals of Indiana, Second District
April 15, 1987
Rehearing Denied May 13, 1987
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
Tony Hawk appeals his conviction by the court following a bench trial for touching or fondling a child less than twelve years of age with intent to arouse or satisfy sexual desires.1 Hawk argues that touching or fondling with intent to arouse or satisfy is not a lesser included offense of sexual intercourse with a child less than twelve years of age, the crime with which he was charged.
The information read, in pertinent part:
[O]n or about 11/84 and March 20, 1985, exact time and date unknown, in the County of Tipton, in the State of Indiana, one Tony Wayne Hawk did then and there perform sexual intercourse with [N.W., victim] a child under the age of twelve (12) years of age contrary to the form of the statute in such case made and provided and against the peace and
dignity of the State of Indiana....
Record at 15.2
In Buck v. State (1983) Ind., 453 N.E.2d 993, our Supreme Court determined that the offense of touching or fondling with intent to arouse or satisfy was not a lesser included offense of deviate sexual conduct. In holding that the trial court did not err by allowing charges of both to proceed to trial, the court stated:
It is evident the child molesting statute embraces three distinct types of child molesting by encompassing the acts of sexual intercourse, deviate sexual conduct, and fondling or touching with intent to arouse sexual desires. Clearly different acts and elements are required to be proven in each case and the defensive posture would not be the same since the prosecution would necessarily proceed under different theories and proof.
Id. at 997 (emphasis supplied).
We are compelled by the Buck analysis to conclude that touching or fondling with intent to arouse or satisfy is not a lesser included offense of sexual intercourse under the statute.
The crime charged and the crime for which Hawk was convicted have different elements. Sexual intercourse is defined by statute as, [A]n act that includes any penetration of the female sex organ by the male sex organ.
Nor is touching or fondling a lesser included offense of sexual intercourse under this statute in the sense that proof of one requires proof of less than all the material elements of the other. Id.
Of course, a penetration is a touching. Cf., Douglas v. State (1985) 4th Dist. Ind. App., 484 N.E.2d 610, 613 (oral-genital contact under criminal deviate conduct charge is a touching). However, our analysis cannot end there. The crime of touching or fondling requires a showing that the touching or fondling was done with the specific intent to arouse or satisfy sexual desires. Hopper v. State (1986) 1st Dist. Ind.App., 489 N.E.2d 1209, 1216, cert. denied (1986) U.S., 107 S.Ct. 592, 93 L.Ed.2d 593; Hammond v. State (1985) 2d Dist. Ind.App., 479 N.E.2d 629, 632; McEachern v. State (1985) 3d Dist. Ind.App., 474 N.E.2d 1034; see generally, Mullins v. State (1985) 3d Dist. Ind. App., 486 N.E.2d 623, 625; Newton v. State (1983) 2d Dist. Ind.App., 456 N.E.2d 736, 739 n. 1 (discussing intent element under
Specific intent is rarely, if ever, susceptible to overt proof. It is a state of mind which is usually determined inferentially, by resort to the surrounding circumstances. Hammond, supra, 479 N.E.2d at 632; McEachern, supra, 474 N.E.2d at 1036. A trier of fact having evidence of only a penetration would be justified in reaching a conclusion, via inference, that the intent to arouse or satisfy sexual desires was present. Nevertheless, the specific intent in that instance would be determined derivatively, or inferentially, and could possibly be disproved. Cf. Buck, supra, 453 N.E.2d at 997 (prosecution must proceed under different theories for different crimes); Hammond, supra, at 632 (defendant denied sexual intent while admitting touching). Thus it would be possible, although perhaps unusual, to engage in sexual intercourse without necessarily having the intent to arouse or satisfy.3 We must therefore conclude that touching or fondling with the requisite intent is not statutorily or inherently included in the child molestation-sexual intercourse crime.
It may well be that our consideration of the issue should end with this determination. Our Supreme Court has recently and unanimously held that a defendant is not entitled to an instruction upon a lesser offense unless the language of the statute and the charging document necessarily include the lesser offense. Roland v. State (1986) Ind., 501 N.E.2d 1034, citing Salahuddin v. State (1986) Ind., 492 N.E.2d 292 (also unanimous). It would seem that the lesser included offense concepts embraced within the reported decisions constitute two edges to the same sword. One cannot plausibly contend that a defendant may not receive an instruction on a lesser offense yet contend that the State might convict him of that offense.
However, because most earlier cases hold that a lesser offense may be included in either one of two means, we shall turn to a discussion of whether the touching or fondling offense is included in the sexual intercourse offense as here charged. See Lechner v. State (1982) 2d Dist. Ind. App., 439 N.E.2d 1203, 1206; and see State v. Mercer (1986) 4th Dist. Ind. App., 500 N.E.2d 1278; Sering v. State (1986) 2d Dist. Ind.App., 488 N.E.2d 369, 375. Here, the information traced the language of the section dealing with child molestation by sexual intercourse. The information contained no additional factual allegations, nor did it make reference to the vital element of the touching or fondling crime, i.e., the specific intent to arouse or satisfy. These omissions undermine the contention that the crime for which Hawk was convicted was included factually, or, as charged. Lechner, supra; Cf. Douglas v. State, supra, 484 N.E.2d at 613 (fondling charge would have been included as charged had the State charged deviate sexual conduct under the molestation statute with intent to arouse or to satisfy.)4 The principle supporting this conclusion is that the prosecution has chosen to charge the offense carrying the greater penalty, sexual intercourse, and thereby foreclosed the possibility of the defendant tendering instructions as to a lesser crime. Compton v. State (1984) Ind., 465 N.E.2d 711; and see Dorsey v. State (1986) Ind., 490 N.E.2d 260. The principle would also seem to foreclose the giving of a lesser offense instruction tendered by the State if defendant objects. Majko v. State (1987) Ind., 503 N.E.2d 898. By the same token, a conviction for a lesser offense may not be sustained when the information has tracked the language of the greater offense. Slayton v. State (1984) 4th Dist. Ind.App., 471 N.E.2d 1154; and see Crawford v. State (1987) 4th Dist. Ind.App., 502 N.E.2d 1361, reh. pending; O‘Grady v. State (1985) 4th Dist. Ind.App., 481 N.E.2d 115; Snell v. State (1984) 4th Dist. Ind.App., 472 N.E.2d 215, 217 n. 1.
Somewhat parenthetically, the author of this opinion might question whether absent the holding of Buck v. State, supra, 453 N.E.2d 993, the offense would be a lesser offense under
We are cognizant that citizens of Indiana might well seek a distinction so as to incarcerate perpetrators of particularly unsavory offenses, as opposed to other crimes which generate less emotion or public outrage. Our oath to apply the law as it exists, however, may not be influenced by such considerations. The sufficiency or insufficiency of the charge here may not be determined by the fact that it involves child molestation as opposed to an arguably less distasteful class C felony such as causing $2500 damage to the grounds adjacent to a community center.
For the foregoing reasons the judgment must be and is reversed.6
SHIELDS, P.J., concurs and files separate opinion.
BUCHANAN, J., dissents and files opinion.
SHIELDS, Presiding Judge, concurring.
SEPARATE CONCURRING OPINION
I concur in Judge Sullivan‘s opinion but nevertheless feel compelled to write a separate opinion for emphasis. Were it not for Buck, I would conclude the offense of child molesting as a touching with intent to arouse or satisfy sexual desires is an included offense of the child molesting as intercourse charge. I would so conclude because the offense fits within the definition of included offense contained in
In codifying the concept of included offense, the legislature went beyond the traditional definition of the term, i.e., an offense established by proof of the same material elements or less than all the material elements required to establish the charged offense. See
In my opinion, a credible argument could be made a fondling or touching with intent to arouse or satisfy, as child molesting under
However, Buck does exist and an intermediate court of appeals is bound by the decision of the State‘s highest court. Therefore, I must conclude Buck is controlling, especially in view of its facts.
The record reveals Buck was charged in Count I with child molesting as a class B felony based upon a claim of deviate sexual conduct. Count II charged Buck with child molesting as a class C felony based upon a fondling or touching with intent to arouse or to satisfy. The evidence offered by the State to meet its burden of proof consisted of four photographs. One exhibit is a photograph of Buck performing an act of cunnilingus upon the victim; a second photograph shows Buck fondling the victim‘s genital area; the third photograph shows Buck leaning over the victim‘s genital area; and the fourth photograph shows Buck performing an act of cunnilingus upon the victim.
In light of these facts, which would have sustained the State‘s charges and the jury‘s verdicts on the ground two separate, distinct criminal acts occurred, an act which constituted child molesting as a class B felony and an act which constituted child molesting as a class C felony, the supreme court‘s decision the class C felony charge is not an included offense of the class B felony is indeed compelling. Therefore, I concur.
BUCHANAN, Judge, dissenting.
DISSENTING OPINION
I respectfully dissent. Following Hawk‘s trial, the trial court stated:
I salute your efforts on behalf of your client. I listened closely to a most persuasive closing argument and have, in fact, read Easterday v. State [, 254 Ind. 13, 256 N.E.2d 901,] most closely, and as to count II in this cause, Child Molesting, a class C felony, the court finds your client ... not guilty.... As to count I, after careful deliberation, the court finds the Defendant guilty of the lesser included offense of Child Molesting, a Class C felony, in that he performed fondling and touching with [the victim] a child under the age of twelve years, with the intent to arouse or satisfy sexual desires of Tony Wayne Hawk.... [The court adjudges the defendant] guilty of the crime of Child Molesting, a Class C felony, a lesser included offense to Count I, as charged in the information....
Record at 592-94. Count I of the information charged Hawk with child molesting, a Class B felony, under
Although portions of the verdict may have been confusingly stated on record, this was a minor imperfection which should not affect the validity of Hawk‘s sentence. Therefore, I would invoke Rule 15(E) of the Indiana Rules of Appellate Procedure, deem the imperfection amended, and affirm the conviction. See Coppock v. State (1985), Ind., 480 N.E.2d 941.