Sloan v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Alan K. Wilson Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana

Nicole Dongieux Wiggins
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
FILED
Jun 01 2011, 10:34 am
_________________________________
CLERK
of the supreme court,
No. 18S04-1009-CR-502 court of appeals and
tax court

JEFFERY SLOAN,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________

Appeal from the Delaware County Circuit Court, No. 18C02-0806-FA-03
The Honorable Richard Dailey, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 18A04-0909-CR-544
_________________________________

June 1, 2011

David, Justice.

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.
 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 infre-
quently 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 molesting 1 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 be-

1
Ind. Code § 35-42-4-3(a)(1) (2008).
2
Id. § 35-42-4-3(b).
3
See Ind. Code § 35-41-4-2(a)(1) (2008).
4
See id. § 35-41-4-2(h)(2).

2
cause there was a reasonable possibility that the jury used the same evidence to convict defen-
dant 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 sentence was inappro-
priate in light of the nature of the offenses and his character. The Court of Appeals agreed with
Sloan‘s first argument and reversed his Class C felony conviction. Sloan v. State, 926 N.E.2d
1095, 1102 (Ind. Ct. App. 2010). Consequently, the court did not reach the merits of Sloan‘s
double jeopardy claim. Id. at 1102 n.6. The Court of Appeals then found Sloan‘s sentence ap-
propriate in light of the nature of the offenses and his character and affirmed the forty-year sen-
tence for the Class A felony. Id. at 1102–03. Both the State and the defendant sought transfer.

We granted transfer to address when tolling ends under Indiana Code section 35-41-4-
2(h)(2) once concealment has been found and to evaluate the merits of Sloan‘s double jeopardy
claim. We summarily affirm the decision of the Court of Appeals that Sloan‘s sentence was ap-
propriate in light of the nature of his offenses and his character. Ind. Appellate Rule 58(A)(2).

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 possi-
bility 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 limita-
tions, which permit the commencement of criminal proceedings against defendants only within a

3
fixed period of time from the commission of a crime. These statutes‘ primary purpose is to pro-
tect defendants from the prejudice that a delay in prosecution could bring, such as fading memo-
ries 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.

Indiana Code section 35-41-4-2(a)(1) applies to most classes of felonies,5 including
Sloan‘s Class C felony child-molesting charge, and sets a five-year limitation period for those
crimes. Indiana Code section 35-41-4-2(h)(2), a concealment-tolling provision, tolls a statute of
limitations if ―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[.]‖

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 commit-

5
With some exceptions, prosecution for Class B, Class C, and Class D felonies must be commenced with-
in five years after the commission of the offense; prosecution for misdemeanors must be commenced
within two years after the commission of the offense; and prosecution for Class A felonies may be com-
menced at any time. Id. § 35-41-4-2.

4
ted 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?

This Court interpreted Indiana Code section 35-41-4-2(h)(2) in Crider v. State, 531
N.E.2d 1151 (Ind. 1988), also a child-molest case. In Crider, the defendant was convicted of a
number of crimes, including child molesting, which were subject to a five-year statute-of-
limitations period. Id. at 1153–54. The defendant had filed a motion to dismiss the counts, ar-
guing that the charges were brought after the applicable statute-of-limitations period and that the
prosecutor failed to produce evidence that the alleged crimes were committed within that period.
Id. at 1154. The trial court denied the motion. This Court affirmed, finding that the conceal-
ment-tolling provision of Indiana Code section 35-41-4-2(h)(2) applied. Because the defendant
had committed positive acts of intimidation that amounted to concealment against his victim–
daughter, ―the statute of limitations did not run until the victim made her disclosure to authori-
ties.‖ Crider, 531 N.E.2d at 1154.

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 author-
ities‘ language‖ would be inappropriate. Sloan, 926 N.E.2d at 1099. The Court of Appeals ex-
plained 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 de-

6
At oral argument, Sloan‘s counsel conceded this point, stating that intimidation constitutes concealment
and that Sloan‘s actions did intimidate M.A. Sloan‘s brief in response to the State‘s petition to transfer
does not explicitly concede his actions constituted concealment but also does not dispute the point.
7
The Court of Appeals cited the following decisions in its opinion: Sipe v. State, 797 N.E.2d 336 (Ind.
Ct. App. 2003); Thakkar v. State, 613 N.E.2d 453 (Ind. Ct. App. 1993); Wera v. State, 601 N.E.2d 377
(Ind. Ct. App. 1992); Umfleet v. State, 556 N.E.2d 339 (Ind. Ct. App. 1990). To the extent that these cas-
es may be interpreted as contrary to our holding today, they are expressly disapproved.

5
fendant‘s threats continued after the last incident of molestation. Id. at 1099. The Court of Ap-
peals finally noted that to hold that tolling continues until the victim discloses the crime to au-
thorities—without regard to when the acts of concealment terminated—would contravene the
statute‘s intended purpose. Id. at 1101. Engaging in a fact-specific inquiry, the Court of Appeals
determined that under Indiana Code section 35-41-4-2(h)(2) concealment ended in 1991 when
the molestations ceased and Sloan and M.A. had less contact with each other. Id. at 1101–02.
This is a prudent approach to the issue. However, the rules of statutory interpretation compel us
to reach a different conclusion.

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 Mf‘g
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 Indiana Code section 35-41-4-2(h)(2) is free of ambiguity. The tolling
provision affords a bright-line rule: once concealment8 has been found, tolling ends when evi-
dence sufficient to charge the defendant becomes known to the prosecuting authority if that au-
thority could not have discovered the evidence by the exercise of due diligence. Crider inter-
preted Indiana Code section 35-41-4-2(h)(2) accordingly. In cases where threats or intimidation
of a victim amount to concealment, the means by which a prosecuting authority becomes aware

8
Indiana Code section 35-41-4-2(h)(2) uses the language ―conceals evidence of the offense,‖ which is
seemingly broader than its predecessor‘s language, ―conceals the fact that the offense has been commit-
ted.‖ See Ind. Code § 35-1-3-5 (1976). We note that decisions from the Court of Appeals have not as-
signed significance to this change and continue to analyze concealment as courts did under the now-
defunct section 35-1-3-5: to constitute concealment, ―there must be a positive act performed by the defen-
dant calculated to prevent discovery of the fact that a crime has been committed.‖ Sipe v. State, 797
N.E.2d 336, 340 (Ind. Ct. App. 2003); e.g., Kifer v. State, 740 N.E.2d 586, 588 (Ind. Ct. App. 2000). It is
arguable that the new language applies to concealment of any evidence, including evidence of guilt, and
thus would toll the statute of limitations in any crime in which a defendant tries to avoid apprehension.
Because concealment is not an issue in this case, we leave this question for another day.

6
of sufficient evidence is often through the victim‘s disclosure to that authority. Crider did not
detail the facts surrounding the concealment, such as if or when the defendant‘s threats ceased,
because they were irrelevant under the tolling provision‘s clear and unambiguous language.
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. For example, it is
plausible that a woman, who at the age of ten was fondled and threatened one time by her twen-
ty-year-old uncle, does not disclose the molestation to authorities until she is fifty. Her uncle,
now sixty-years old, may be subjected to prosecution for Class C felony child molesting, a crime
he committed forty years earlier. But problems may also arise with an alternative, fact-specific
approach that probes into whether the coercive influence over the victim has ceased. Suppose a
five-year-old girl is fondled by her neighbor, who threatens her over the course of a year. The
threats then cease, and the girl avoids her neighbor. However she is too scared to report the fon-
dling to anyone. At the age of twelve, the girl, no longer scared, finally discloses the molesta-
tion, but the statute of limitations has run and bars prosecution for Class C felony child molest-
ing.9

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 limita-
tions. But we are ―careful to avoid substituting [our] judgment for those of the more politically
responsive branches.‖ Sanchez v. State, 749 N.E.2d 509, 516 (Ind. 2001); see also State v. Ren-
dleman, 603 N.E.2d 1333, 1334 (Ind. 1992) (―[W]e do not substitute our belief as to the wisdom

9
The legislature has provided an extended statute of limitations for certain sex offenses in Indiana Code
section 35-41-4-2(e). For the crimes listed there, the statute of limitations expires when the victim reach-
es thirty-one years of age. However, Class C felony child molesting under Indiana Code section 35-42-4-
3(b) is not included in that list, and a five-year statute of limitations applies to the crime without regard to
the victim‘s age.

7
of a particular statute for those of the legislature.‖). 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.10

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 con-
cealed evidence. Until the legislature chooses to speak on the issue, prosecutors will have to do
what they have always done: evaluate the various factors that affect the strength of a case and
then decide whether to proceed against a defendant.

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 convic-
tions 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 Indiana Constitution provides in part: ―No person
shall be put in jeopardy twice for the same offense.‖ Ind. Const. art. 1, § 14. Two or more of-
fenses are the ―same offense‖ if ―with respect to either the statutory elements of the challenged
crimes or the actual evidence used to convict, the essential elements of one challenged offense

10
The dissent believes that tolling ends when ―the victim no longer reasonably fears material retaliation
or other adverse consequences from a defendant‘s threats or intimidation.‖ This seems to write a victim
element into the statute that is currently not present. The statute mandates that courts judge the period of
concealment by the defendant‘s actions and not how the victim processes the effects of those actions over
time. When a defendant‘s actions amount to concealment, he or she hopes that the period of concealment
will continue indefinitely. Accordingly, as the statute states, the tolling period begins when the defen-
dant‘s actions first amount to concealment and ends when authorities discover or should have discovered
the evidence. Notwithstanding the clear language of the statute, there is an additional problem with the
dissent‘s approach. Incorporating the dissent‘s standard into the statute could force courts and attorneys
in some cases (like the present one) to delve into complicated psychological theories on how child molest-
ing and the associated threats or intimidation may affect a victim‘s ability to cope with that trauma. See
generally Jodi Leibowitz, Note, Criminal Statutes of Limitations: An Obstacle to the Prosecution and Pu-
nishment of Child Sexual Abuse, 25 Cardozo L. Rev. 907, 916–920 (2003) (discussing the controversial
theories of repressed memories and False Memory Syndrome). There may be good policy reasons for the
legislature to amend the statute to comport with the dissent‘s approach, but currently the statute does not
include a victim-reasonableness standard.

8
also establish the essential elements of another challenged offense.‖ Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999).

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 con-
victions 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 es-
tablish 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 ele-
ments 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 813, 833 (Ind. 2002). Application of the ac-
tual-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 fon-
dling). 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 in-
serted 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

9
argument. We find no reasonable possibility that the jury used the same evidentiary facts to es-
tablish both the essential elements of the Class A felony child-molesting charge and the essential
elements of the Class C felony child-molesting charge.

Conclusion

We summarily affirm the decision of the Court of Appeals finding Sloan‘s sentence ap-
propriate 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.

10
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 pros-
ecuting authority and could not have been discovered by that authority by exercise
of due diligence[.]

Ind. Code § 35-41-4-2(h)(2) (2008). The Court reads this language as follows:

[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.

Slip op. at 6 (footnote omitted).

I believe that the Court has expanded the tolling period beyond that specified by the sta-
tute. The statute does not provide that ―once concealment has been found,‖ tolling continues un-
til 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. 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 posi-
tive 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 lite-
rature 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 in-
voke the discovery rule‖ used in civil cases); Jodi Leibowitz, Note, Criminal Statutes of Limita-
tions: 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); Jessica E. Mindlin, Comment, Child Sexual Abuse and Criminal Statutes of Limita-
tion: A Model for Reform, 65 Wash. L. Rev. 189, 207 (1990) (suggesting, inter alia, tolling the
limitations period in child sexual abuse prosecutions until the earlier of the victim reaching the
age of majority or until the abuse being reported to law enforcement authorities).

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 sta-
tute 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. Slip
op. at 7. 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 prose-
cutors and courts will be able to do so and that, in any event, this is what the Legislature has pro-
vided. 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

2
―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.‖ Slip op. at 2. The last molestation and intimidation oc-
curred 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 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.

Rucker, J., concurs.

3