Jeffery SLOAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 18S04-1009-CR-502.
Supreme Court of Indiana.
June 1, 2011.
947 N.E.2d 917
DAVID, Justice.
We hold that once concealment has been established, statutes of limitations for criminal offenses are tolled under
Facts and Procedural History
M.A., the victim, was born on May 1, 1978. Jeffrey L. Sloan is M.A.‘s step-uncle and is approximately eleven-and-a-half years older than her.
Sloan began molesting M.A. when she was six-years old and regularly molested her until she was thirteen. Over the seven years, Sloan inserted his finger into M.A.‘s vagina “hundreds” of times and sometimes fondled and licked her breasts. After every occurrence, Sloan warned M.A. not to tell anyone. On at least one occasion, Sloan told M.A. she would go to jail if she disclosed the molestations. The last molestation occurred in 1991.
From that point onward, M.A. began to have less contact with Sloan. She saw him infrequently at family gatherings and would stay away from him if possible.
In 2007, M.A. told her stepfather about the molestations. M.A. disclosed the information because Sloan was dating a woman who had two daughters, and M.A. was concerned for their well-being. M.A.‘s stepfather called Sloan to confront him; Sloan responded, “I thought she wanted it.” On June 9, 2008, M.A. and her stepfather reported Sloan‘s actions to the authorities. A few days later, Sloan made several recorded admissions.
Shortly after, the State charged Sloan with Class A felony child molesting1 and Class C felony child molesting.2 Before trial, Sloan filed a motion to dismiss the Class C felony charge, arguing that it was filed well after the applicable five-year statute of limitations.3 At the motion hearing, the State contended that Sloan committed acts of concealment which tolled4 the statute of limitations and pointed to our decision in Crider v. State, 531 N.E.2d 1151 (Ind. 1988), for support. The trial court denied Sloan‘s motion to dismiss.
A jury convicted Sloan of both counts. Before sentencing, Sloan filed a motion to vacate judgment. Sloan argued convictions for both offenses violated double jeopardy principles because there was a reasonable possibility that the jury used the same evidence to convict defendant of both offenses. The trial court denied the motion. The trial court then sentenced Sloan to forty years for the Class A felony and six years for the Class C felony and ordered Sloan to serve the sentences consecutively.
Sloan appealed, arguing that (1) the trial court erred in denying his motion to dismiss; (2) the trial court erred in denying his motion to vacate judgment; and (3) his
We granted transfer to address when tolling ends under
Standard of Review
We review a matter of statutory interpretation de novo because it presents a question of law. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).
Similarly, we review a trial court‘s legal conclusions whether convictions violate double jeopardy de novo. See Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005); cf. Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000) (noting that although this Court has not “expressly ruled” on the standard of review in double jeopardy cases, it has often treated reasonable possibility as a matter of law for de novo review).
I. Indiana Code section 35-41-4-2(h)(2)
For misdemeanors and most classes of felonies, Indiana has enacted statutes of limitations, which permit the commencement of criminal proceedings against defendants only within a fixed period of time from the commission of a crime. These statutes’ primary purpose is to protect defendants from the prejudice that a delay in prosecution could bring, such as fading memories and stale evidence. See Kifer v. State, 740 N.E.2d 586, 587 (Ind. Ct. App. 2000). They also “strike[] a balance between an individual‘s interest in repose and the State‘s interest in having sufficient time to investigate and build its case.” Heitman v. State, 627 N.E.2d 1307, 1309 (Ind. Ct. App. 1994).
A tolling provision allows for an interruption of the statute-of-limitations period under certain circumstances. Essentially, these provisions allow prosecution to commence after the statute-of-limitations period would have otherwise run.
Sloan last molested M.A. in 1991. M.A. did not disclose the molestations to authorities until 2008. Sixteen years after the
Sloan contends that under
Resolution of this issue turns on the interpretation of
This Court interpreted
In determining when the tolling ended in Sloan‘s case, the Court of Appeals did not find Crider “determinative” and decided that “wholesale application of Crider‘s ‘disclosure to authorities’ language” would be inappropriate. Sloan, 926 N.E.2d at 1099. The Court of Appeals explained that multiple Court of Appeals decisions after Crider suggest that the proper inquiry to determine when tolling ends under the concealment statute is not when the victim disclosed the crime to authorities but when the defendant‘s acts of concealment terminated.7 Id. at 1099-1101. The Court of Appeals also noted that Crider lacked some factual details, such as whether the defendant‘s threats continued after the last incident of molestation. Id. at 1099. The Court of Appeals finally noted
It is true that exceptions to statutes of limitations must be “construed narrowly and in a light most favorable to the accused.” State v. Holmes, 181 Ind. App. 634, 637, 393 N.E.2d 242, 244 (1979). But the overarching principle in statutory interpretation is to first decide “whether the legislature has spoken clearly and unambiguously on the point in question.” Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001). If a statute is clear and unambiguous, courts do not apply any rules of construction other than giving effect to the plain and ordinary meaning of the language. Id.; e.g., Benham v. State, 637 N.E.2d 133, 136 (Ind. 1994). Thus, this Court will not delve into legislative intent unnecessarily if no ambiguity exists. See Ott v. Johnson, 262 Ind. 548, 552, 319 N.E.2d 622, 624 (1974).
The language of
We recognize that this strict reading may be problematic for some. For example, it is plausible that a woman, who at the age of ten was fondled and threatened one time by her twenty-year-old uncle, does not disclose the molestation to authorities until she is fifty. Her uncle, now
We also acknowledge that a strict reading of
In the meantime, public policy and a strict reading of the statute favor the prosecution of alleged crimes over the protection of defendants who have intimidated victims or otherwise concealed evidence. Until the legislature chooses to speak on the issue, prosecutors will have to do what
II. Double Jeopardy
Because the Court of Appeals reversed Sloan‘s Class C felony child-molesting conviction on statute-of-limitations grounds, it did not address Sloan‘s alternative argument that his convictions violate Indiana‘s double jeopardy principles. Because we reject Sloan‘s statute-of-limitations defense, we address his double jeopardy claim now.
The Double Jeopardy Clause of the
Sloan concedes that the statutory elements of Class A felony child molesting and Class C felony child molesting are different. His argument rests on the actual-evidence test: “dual convictions cannot stand if a defendant ‘demonstrate[s] a reasonable possibility that the evidentiary facts used by the fact-finder to establish elements of one offense may also have been used to establish the essential elements of a second challenged offense.‘” Wise v. State, 719 N.E.2d 1192, 1201 (Ind. 1999) (alteration in original) (quoting Richardson, 717 N.E.2d at 53). Furthermore, there is no double jeopardy violation “when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). Application of the actual-evidence test requires a reviewing court to look at the evidence presented at trial and decide whether each challenged offense was established by separate, distinct facts. Richardson, 717 N.E.2d at 53.
Sloan was convicted of one count of Class A felony child molesting based on penetration and one count of Class C felony child molesting based on fondling. Sloan argues that because the penetrations and fondling occurred together, it is “highly likely” that the jury used the same evidentiary facts to convict him of both child-molesting crimes. We disagree and find the State established that Sloan committed two separate criminal offenses based on distinct facts.
The evidence shows that Sloan penetrated M.A.‘s vagina numerous times and on multiple occasions fondled and touched M.A.‘s breasts. Although these acts occurred together, there was independent and distinct evidence of both penetration and fondling to support the two child-molesting convictions. Cf. Davies v. State, 730 N.E.2d 726, 741 (Ind. Ct. App. 2000) (finding a double jeopardy violation because a single incident of molestation without independent evidence of fondling could not support both molesting by criminal deviate conduct and molesting by fondling). Under these facts, the fondling was neither part of nor incidental to the penetration. See Ward v. State, 736 N.E.2d 265, 269 (Ind. Ct. App. 2000). The evidence shows that Sloan inserted his finger into M.A.‘s vagina, and it also independently shows that Sloan would touch and lick M.A.‘s breasts. Furthermore, the sheer number of incidents greatly weighs against Sloan‘s argument. We find no reasonable possibility that the jury used the same evidentiary facts to establish both the essential elements of the Class A felo-
Conclusion
We summarily affirm the decision of the Court of Appeals finding Sloan‘s sentence appropriate in light of his character and the nature of his offenses. App. R. 58(A)(2). We conclude that the trial court properly denied both Sloan‘s motion to dismiss and motion to vacate and affirm Sloan‘s convictions and sentences.
SHEPARD, C.J., and DICKSON, J., concur.
SULLIVAN, J., dissents with a separate opinion in which RUCKER, J., concurs.
SULLIVAN, Justice, dissenting.
The statute of limitations applicable to the present case contains the following tolling provision:
The period within which a prosecution must be commenced does not include any period in which: . . . the accused person conceals evidence of the offense, and evidence sufficient to charge the person with that offense is unknown to the prosecuting authority and could not have been discovered by that authority by exercise of due diligence[.]
[O]nce concealment has been found, tolling ends when evidence sufficient to charge the defendant becomes known to the prosecuting authority if that authority could not have discovered the evidence by the exercise of due diligence. Op. at 922 (footnote omitted).
I believe that the Court has expanded the tolling period beyond that specified by the statute. The statute does not provide that “once concealment has been found,” tolling continues until the prosecutor knows or could have known of the evidence. Rather, it provides that tolling continues during the “period in which: . . . the accused person conceals evidence of the offense”
It was this Court‘s decision in Crider—not the statute—that added the interpretation that the Court today attributes to the statute itself. Crider v. State, 531 N.E.2d 1151, 1154 (Ind. 1988). But as Judge Kirsch points out in his opinion for the Court of Appeals in this case, it is not clear from Crider “when the [victim] reported the molestation to authorities, whether (or how long) Crider‘s threats continued after the last incident occurred, or when charges were actually filed against Crider.” Sloan v. State, 926 N.E.2d 1095, 1099 (Ind. Ct. App. 2010).
The Court of Appeals takes the position that once “threats, intimidation, and other positive acts of concealment . . . [have] ceased[,] . . . it [is] then that the statute of limitation beg[ins] to run.” Id. at 1102. The majority, as noted, holds that once concealment occurs, the statute does not begin to run until the prosecutor knows or could have known of the evidence. Academic literature reviews a variety of approaches. Cf. Brian L. Porto, New Hampshire‘s New Statute of Limitations for Child Sexual Assault: Is It Constitutional and Is It Good Public Policy?, 26 New Eng. L. Rev. 141, 169 (1991) (proposing “enactment of a tolling exception that accords to judges in prosecutions for child sexual assault discretion to determine whether to toll the statute and invoke the discovery rule” used in civil cases); Jodi Leibowitz, Note, Criminal Statutes of Limitations: An Obstacle to the Prosecution and Punishment of Child Sexual Abuse, 25 Cardozo L. Rev. 907, 941-45 (2003) (advocating repeal of all statutes of limitations for child sexual abuse felonies);
My own view of the statute and Crider brings me to an intermediate position. I do not agree with the Court of Appeals that once the defendant ceases threats and intimidation, the statute begins to run. Here the majority is most persuasive in pointing out that a victim may be “too scared to report” a molestation long after any specific threats or intimidation have ended. Op. at 923. A defendant should not benefit from the statute of limitations in such circumstances.
In my view, the statutory tolling period should cease at the point in time when the victim no longer reasonably fears material retaliation or other adverse consequences from a defendant‘s threats or intimidation. That is, I think the statutory “period in which: . . . the accused person conceals evidence of the offense” extends beyond the time of actual threats or intimidation but no longer than the victim reasonably fears material retaliation or other adverse consequences from a defendant‘s threats or intimidation.
I acknowledge that this line may be difficult to draw in some cases, but I think that prosecutors and courts will be able to do so and that, in any event, this is what the Legislature has provided. In this case, I think it is clear that well over five years passed between the time M.A. ceased reasonably fearing material retaliation or other adverse consequences from Sloan‘s “warn[ing] M.A. not to tell anyone” and telling her on at least one occasion that “she would go to jail if she disclosed the molestations.” Op. at 919. The last molestation and intimidation occurred when M.A. was thirteen. The incidents were reported to the prosecutor when she was thirty.
Finally, I emphasize that this analysis applies only to Sloan‘s conviction for child molesting as a Class C felony. His other conviction and forty-year sentence for child molesting as a Class A felony remains intact as that charge is not subject to any statute of limitation.
RUCKER, J., concurs.