Attorney for Appellant
Eugene Hollander
Indianapolis, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
James Martin
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
ANGELO D’PAFFO,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 28S04-0108-CR-377
)
) Court of Appeals No.
) 28A04-0010-CR-442
)
)
)
APPEAL FROM THE GREENE SUPERIOR COURT
The Honorable J. David Holt, Judge
Cause No. 28D01-9807-CF-413
ON PETITION TO TRANSFER
NOVEMBER 12, 2002
SULLIVAN, Justice.
Defendant Angelo D’Paffo was convicted of child molesting by
committing deviate sexual conduct. The Court of Appeals reversed on
grounds that the jury had not been instructed that the State was required
to prove that Defendant acted with the intent to arouse or satisfy sexual
desires. We disagree and hold that the State is not required to prove
intent to arouse or satisfy sexual desires in order to obtain a conviction
of child molesting by committing deviate sexual conduct.
Background
The facts most favorable to the judgment indicate that Defendant
lived with his wife and his wife’s child, C.P., from an earlier marriage.
On the afternoon of July 9, 1998, eight year old C.P. had a friend, ten
year old A.M., over to play. At some point during the afternoon, Defendant
and A.M. were alone in the living room, and Defendant fondled A.M.
Defendant then lifted up her skirt and inserted his finger into her vagina.
A short while later when A.M. went to the bathroom, A.M. discovered
she was bleeding as a result of Defendant’s actions. That night, A.M. told
her mother she was bleeding, but initially told her mother that she had
fallen on something. A.M. later told her mother about the actual events of
that afternoon, and A.M.’s mother took her to the hospital. At the
hospital, Dr. Gregory Wall examined A.M. and found her injuries to be
indicative of sexual abuse. Dr. Wall contacted child protective services,
and an investigation into the incident ensued thereafter. During this
investigation, C.P. came forward with her own allegations that Defendant
had fondled her on many occasions.
Defendant was arrested and charged with two counts of child molesting
based on the investigation’s findings. Count I charged him with molesting
A.M. as a Class A felony, and Count II charged him with molesting C.P. as a
Class C felony.[1] Defendant was convicted of Count I and found not guilty
of Count II. He was sentenced to fifty years.
Defendant appealed his conviction to the Court of Appeals which
reversed the trial court. D’Paffo v. State, 749 N.E.2d 1235 (Ind. Ct. App.
2001). We granted transfer, 761 N.E.2d 416 (Ind. 2001) (table), and now
affirm the original conviction.
Discussion
The State contends that the Court of Appeals erred in reversing
Defendant’s conviction. The Court of Appeals held that the trial court
committed reversible error by failing to instruct the jury that in order to
find Defendant guilty of the charged crime, it was required to find that
the State had proven beyond a reasonable doubt that Defendant committed the
charged conduct with the “intent to arouse or satisfy the sexual desires of
[himself] or the child.” D’Paffo, 749 N.E.2d at 1238. Although Defendant
failed to seek such an instruction, the Court of Appeals found that the
failure to include this element in the instructions constituted fundamental
error, i.e., reversible error, notwithstanding Defendant’s failure to
preserve the issue for appeal. Id. at 1239.[2]
I
Defendant was convicted under Indiana Code § 35-42-4-3(a) which
provides:
A person who, with a child under fourteen (14) years of age,
performs or submits to sexual intercourse or deviate sexual conduct
commits child molesting, a Class B felony. However, the offense is a
Class A felony if … it is committed by a person at least twenty-one
(21) years of age.
As discussed under Background, supra, Defendant was alleged to have
inserted his finger in A.M.’s vagina, thereby committing deviate sexual
conduct (defined by Ind. Code § 35-41-1-9(b) as “the penetration of the sex
organ of a person by an object”). At issue in this case is whether it is
an additional element of this crime that Defendant commit it with the
“intent to arouse or satisfy the sexual desires of [Defendant] or the
child” and, if so, the extent to which this element is required to be
described in jury instructions.
A
On its face, Ind. Code § 35-42-4-3(a) contains only four elements that
the State must prove to establish guilt of child molesting: (1) the
defendant, (2) with a child under fourteen years of age, (3) performed or
submitted to, (4) sexual intercourse or deviate sexual conduct. Ind. Code
§ 35-42-4-3(a) does not contain language to the effect that a defendant
perform or submit to the proscribed conduct with the “intent to arouse or
satisfy the sexual desires of [defendant] or the child.” However, in this
case and at least one other, the Court of Appeals has found the intent to
arouse or satisfy element implicit in the statute. D’Paffo, 749 N.E.2d at
1239; Clark v. State, 728 N.E.2d 880, 885 (Ind. Ct. App. 2000), transfer
denied, 728 N.E.2d 1250 (Ind. 200)(table).
We look to the context of the statute, as well as related statutes,
in order to divine legislative intent. See State v. Keihn, 542 N.E.2d 963,
965, 967 (Ind. 1989) (“Our goal in construing criminal statutes is
generally to determine and effect the legislative intent.”) Our effort to
determine legislative intent here is aided by comparing the language the
Legislature has used in defining this and other sex crimes in the sex
crimes chapter of the criminal code, Ind. Code § 35-42-4. The crime of
child molesting is defined in section 3 of the nine sections of chapter 4.
Relevant to our inquiry are the following two subsections:
(a) A person who, with a child under fourteen (14) years of age,
performs or submits to sexual intercourse or deviate sexual conduct
commits child molesting, a Class B felony. However, the offense is a
Class A felony if … it is committed by a person at least twenty-one
(21) years of age.
(b) A person who, with a child under fourteen (14) years of age,
performs or submits to any fondling or touching, of either the child
or the older person, with intent to arouse or to satisfy the sexual
desires of either the child or the older person, commits child
molesting, a Class C felony.
The language of subsections (a) and (b) are strikingly different.
Subsection (b) includes additional language that refers to a specific
mental state that the defendant must have at the time of the alleged
touching or fondling: the “intent to arouse or to satisfy the sexual
desires of either the child or the older person….” The intent to arouse or
satisfy element is not present in subsection (a)’s proscription of child
molesting by sexual intercourse or deviate sexual conduct. (As noted
supra, Defendant here was convicted under subsection (a).)
There is another difference between subsections (a) and (b). The
conduct proscribed by subsection (a) – “sexual intercourse” and “deviate
sexual conduct” – both contain the adjective “sexual”; the conduct
proscribed by subsection (b) – “touching” and “fondling” – does not. In
fact, an inspection of all the crimes in the sex crimes chapter of the
criminal code reveals that where the statutory language does not include
the “intent to arouse or gratify sexual desires” language, the specific
conduct proscribed – usually involving “sexual intercourse” or “deviate
sexual conduct” – includes the adjective “sexual.”
There are two opposing inferences that can be drawn from this pattern
of legislative drafting. The first is that the Legislature intended for
the State to prove the additional intent element only where the Legislature
uses the explicit “intent to arouse or satisfy sexual desires” language
(generally, where the proscribed conduct involves touching or fondling) but
not where it does not (generally, where the proscribed conduct involves
sexual intercourse or deviate sexual conduct). This is equivalent to the
position the State urges in this appeal.
The second inference is that the Legislature did not see a need to
spell out the additional intent element in the offenses involving sexual
intercourse and deviate sexual conduct because that concept is already
embodied in the use of the adjective “sexual.” This is equivalent to the
position the Defendant urges and the Court of Appeals adopted in this
appeal and in Clark.
We adopt the position advanced by the State and hold that “intent to
arouse or satisfy sexual desires” is not an element of Ind. Code § 35-42-4-
3(a). We believe that the structure of Ind. Code § 35-42-4-3 and of the
other crimes in the sex crimes chapter of the criminal code are best
understood to include the "intent to arouse or satisfy sexual desires"
element only where it is expressly set forth. What is at stake here is
whether the Legislature meant to criminalize all sexual intercourse and
deviate sexual conduct with children or only that performed with intent to
arouse or satisfy sexual desires. We think it more likely that the
Legislature meant to criminalize such conduct performed, for example, to
perpetrate revenge or to coerce a parent to take some type of action, in
addition to conduct performed to arouse or satisfy sexual desires.[3]
We believe this reading is at least consistent with, if not compelled
by, our decision in Canaan vs. State, 541 N.E.2d 894 (Ind. 1989). The
defendant in that case was convicted of attempted criminal deviate
conduct.[4] The evidence in the case showed that he had stabbed the female
victim multiple times and that several of the wounds were close to, but had
not penetrated, her vagina. Arguing that the evidence was insufficient to
support the conviction, the defendant argued that, at most, the evidence
only showed an undifferentiated intent to stab his victim multiple times
but no intent whatsoever to achieve any sexual gratification. We held that
there was no element of sexual gratification in the crime of deviate sexual
conduct. As such, the fact that the jury could infer from the placement
and direction of stab wounds an intent to penetrate the vagina itself
constituted sufficient evidence of intent to commit deviate sexual conduct
even in the absence of any evidence that the stabbing was performed with an
intent to arouse or satisfy sexual desires. Id. at 907. We found it to be
the Legislature’s intent that “rape and other types of sexual attacks are
not crimes of passion or sexual gratification, but rather, crimes of
violence.” Id. at 908. See also Hughes vs. State, 600 N.E.2d 130, 132
(Ind. Ct. App. 1992) (“Rape is a crime of violence, not a crime of
passion.”) (Rucker, J.).
We acknowledge that our interpretation of the statutory language used
by the legislature can cause some difficulty when considering the
definition of “deviate sexual conduct” in the context of medical or
personal hygiene related examinations and procedures. As we have
discussed, the term “deviate sexual conduct” is defined in Ind. Code § 35-
41-1-9 as “an act involving…the penetration of the sex organ or anus of a
person by an object.” And the definition of the term “object” includes the
use of one’s fingers. Stewart v. State, 555 N.E.2d 121, 126 (Ind. 1990),
overruled on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind. 1992).
(Indeed, the use of fingers formed the basis of Defendant’s prosecution in
this case.) In holding that the “intent to arouse or satisfy sexual
desires” is inherit in the legislature’s use of the terms “sexual
intercourse” and “deviate sexual conduct,” Judge Sharpnack wrote:
For example, if an intent to arouse or satisfy the sexual desire
was not inherent in the definition of deviate sexual conduct, medical
examinations, such as a colonoscopy or gynecological examination,
would arguably fit within the definition.
Jaco v. State, 760 N.E.2d 176, 181 (Ind. Ct. App. 2001), vacated in
relevant part, - N.E.2d -, No. 32S05-0211-CR-612 (Ind. November 12, 2002).
It is well established that conviction of child molesting requires
the State to prove beyond a reasonable doubt criminal intent on the part of
the defendant. Louallen v. State, - N.E.2d -, No. 58S05-0211-CR-613 (Ind.
November 12, 2002); Snider vs. State, 468 N.E.2d 1037, 1039 (Ind. 1984);
Newton vs. State, 456 N.E.2d 736, 745 n. 1 (Ind. Ct. App. 1983). Where the
evidence warrants an inference that an alleged penetration of the sex organ
or anus of a person by an object was in furtherance of a bona fide medical
or personal hygiene-related examination or procedure, we believe that
defendant would be entitled to an appropriate instruction as to criminal
intent. We do note that no such issue is raised by this case as Defendant
claims not to have committed the alleged conduct at all.
We conclude that the elements of the crime of child molesting under
Ind. Code § 35-42-4-3(a) do not include the intent to arouse or satisfy
sexual desires. We therefore disapprove the opinions of the Court of
Appeals on this issue in Bear v. State, 772 N.E.2d 413, 418 (Ind. Ct. App.
2002), transfer denied; Scott v. State, 771 N.E.2d 718, 728 (Ind. Ct. App.
2002), transfer denied, 2002 Ind. Lexis 799 (2002); Jaco, 760 N.E.2d at
181; and Clark, 728 N.E.2d at 885.
Conclusion
Having previously granted transfer pursuant to Ind. Appellate Rule
58(A), we now summarily affirm the opinion of Court of Appeals as to the
issues discussed in footnote 2 and affirm Defendant’s conviction for child
molesting as a Class A felony.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-4-3(a)(1) (1998).
[2] Defendant raises two additional issues in this appeal: that he was
improperly restricted from cross-examining a witness at trial and that
there was insufficient evidence to support his conviction. The Court of
Appeals decided these issues against Defendant, D’Paffo v. State, 749
N.E.2d 1235, 1239, 1240 (Ind. Ct. App. 2001), and we summarily affirm the
Court of Appeals on these points. Ind. Appellate Rule 58(A)(2).
[3] We hold our statutory scheme similar in effect to that of Montana,
Mont. Ann. Code § 45-2-101 (defendant must act to “cause bodily injury or
humiliate, harass, or degrade; or arouse or gratify the sexual response of
either party”); Utah, Utah Code Ann. § 76-5-401 (defendant must act with
the "intent to cause substantial emotional or bodily pain to any person or
with the intent to arouse or gratify the sexual desire of any person"); and
the District of Columbia, D.C. Code § 22-3001 (defendant must act with the
"intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person").
[4] The element of "criminal deviate conduct" includes causing another
person to perform or submit to “deviate sexual conduct.” Ind. Code § 35-42-
4-2. “Deviate sexual conduct” is defined in Ind. Code § 35-41-1-9 as "an
act involving: (1) a sex organ of one person and the mouth or anus of
another person; or (2) the penetration of the sex organ or anus of a person
by an object."