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Wednesday, June 01, 2011

Ind. Decisions - Supreme Court issues one opinion today

In Jeffery Sloan v. State of Indiana, a 13-page, 3-2 opinion, Justice David writes:

We hold that once concealment has been established, statutes of limitations for criminal offenses are tolled under Indiana Code section 35-41-4-2(h) (2008) until a prosecuting authority becomes aware or should have become aware of sufficient evidence to charge the defendant. We also hold that under the facts of this case there was no double jeopardy violation because each challenged offense was established by separate and distinct facts. * * *

Sloan last molested M.A. in 1991. M.A. did not disclose the molestations to authorities until 2008. Sixteen years after the last occurrence of molestation, prosecution commenced.

Sloan contends that under Indiana Code section 35-41-4-2(a)(1) the statute of limitations has run for his Class C felony child-molesting charge, and thus the trial court should have dis-missed that charge. The State does not dispute that prosecution commenced more than five years after the last act of molestation. But the State argues that the concealment-tolling provision found in Indiana Code section 35-41-4-2(h)(2) permitted the delayed prosecution. The State ex-plains that because the defendant had taken affirmative acts to conceal the abuse—namely, tell-ing M.A. she would go to jail if she disclosed the molestations—the statute of limitations was tolled until M.A. disclosed the abuse to the authorities in 2008. Sloan concedes that he committed affirmative acts of concealment through his intimidation of M.A.6 but argues that the con-cealment, and tolling, ended in 1991 when his ―coercive influence‖ over M.A. ceased. Sloan as-serts that because prosecution commenced sixteen years after that point, it was well beyond the applicable five-year limitation period.

Resolution of this issue turns on the interpretation of Indiana Code section 35-41-4-2(h)(2): once concealment is established, when does tolling end? * * *

Once concealment is found, the relevant inquiry is when the prosecuting authority becomes aware or should have become aware of sufficient evidence to charge the defendant. At that point, tolling ends, and the statute of limitations begins to run.

We recognize that this strict reading may be problematic for some. * * *

We also acknowledge that a strict reading of Indiana Code section 35-41-4-2(h)(2) could toll the statutes of limitations for many other crimes, not only Class C felony child molesting. Courts will still need to determine whether concealment exists in the first place. But once con-cealment is established, the statute of limitations ceases to run until authorities know or should have known sufficient evidence to charge the person with the crime. In essence, tolling could continue indefinitely—a result that seems at odds with the purposes underlying statutes of limitations. But we are ―careful to avoid substituting [our] judgment for those of the more politically responsive branches. ... This Court will avoid invading the province of the legislature by strictly interpreting the language of Indiana Code section 35-41-4-2(h)(2). We leave it to the legislature to modify the statute if it deems necessary. * * *

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 af-firm Sloan‘s convictions and sentences.

Shepard, C.J., and Dickson, J., concur.
Sullivan, J., dissents with a separate opinion in which Rucker, J., concurs.

[From J. Sullivan's opinion, beginning at p. 11 of 13]
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, and evidence . . . ." I.C. § 35-41-4-2(h)(2).

It was this Court's decision in Crider – not the statute – that added the interpretation that the Court today attributes to the statute itself. * * *

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. * * *

Finally, I emphasize that this analysis applies only to Sloan‘s conviction for child molest-ing 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.

Posted by Marcia Oddi on June 1, 2011 11:37 AM
Posted to Ind. Sup.Ct. Decisions