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Wednesday, March 01, 2006

Ind. Decisions - Court of Appeals issues one today

In Joshua Staton v. State of Indiana, a 3-0, 7-page opinion (with concurring opinion beginning on p. 5), Judge Sullivan writes:

Following a jury trial, Appellant, Joshua Staton, was convicted of Sexual Misconduct with a Minor, a Class C felony. Upon appeal, Staton argues that there was insufficient evidence to prove beyond a reasonable doubt that he was eighteen years of age at the time of the offense. We affirm. * * *

We need not consider whether the evidence presented was sufficient to establish Staton’s age at the time of the offense because Staton did not follow the proper procedure for preserving the issue of his age for appellate review. In McGowan v. State, 267 Ind. 16, 17-18, 366 N.E.2d 1164, 1165 (1977), our Supreme Court held that an accused is presumed to have attained the age necessary for a conviction of a crime unless the presumption is challenged through a motion to dismiss and supporting memorandum. Where the accused does not raise the issue of his age in a motion to dismiss, the issue is not available upon appeal. [cites omitted] Here, Staton does not claim, and our review of the record does not indicate that Staton filed a motion to dismiss challenging his age. He has therefore waived the issue of his age for appellate review.[3]

FRIEDLANDER, J., concurs.
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[3] In Judge Vaidik’s separate concurrence in result, she sets forth the logical premise, supported by persuasive policy considerations, that if a particular fact is an element of the crime it must be proved beyond a reasonable doubt by the State. Failure by the defendant to raise this issue in a Motion to Dismiss the charge should not relieve the State of this burden.

Nevertheless, we do not write on a clean slate in this regard. Therefore, unless and until our Supreme Court overrules or modifies its decision in McGowan, supra, we feel constrained to follow its plain holding.
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VAIDIK, J., concurs in result with separate opinion.

I concur with the result reached by the majority, but I respectfully disagree with its determination that “an accused is presumed to have obtained the age necessary for a conviction of a crime unless the presumption is challenged through a motion to dismiss and supporting memorandum.” Although the majority cites this rule as established in McGowan, I believe that more recent decisions by our Supreme Court and sound policy considerations support the position that where the offender’s age is an element of the crime charged, the State bears the burden to establish age beyond a reasonable doubt. * * *

Nevertheless, I reach the same conclusion as the majority in this case because I find that the State did prove Staton’s age beyond a reasonable doubt. Witness testimony established that at the time of the incident, January 2004, Staton was a freshman living in a dormitory at Manchester College. The fifteen-year-old victim testified that she had known Staton for a number of years, that she “imagined” him to be four years older than she, that it was her “understanding” that he was eighteen in January 2004, and that she thought Staton had graduated from high school in 2003, the year before her older sister. I would find, then, that the State presented sufficient circumstantial evidence to establish that Staton was at least eighteen years of age at the time he committed the charged offense. For this reason, I concur.

Posted by Marcia Oddi on March 1, 2006 11:06 AM
Posted to Ind. App.Ct. Decisions