ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
DONALD W. PAGOS KAREN M. FREEMAN-WILSON
Michigan City, Indiana Attorney General of Indiana
EILEEN EUZEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
ANTHONY WALLACE, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 46S03-0107-CR-331
v. )
) Court of Appeals Cause Number
STATE OF INDIANA, ) 46A03-0002-CR-56
)
Appellee-Plaintiff. )
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Robert W. Gilmore, Judge
Cause No. 46C01-9803-CF-23
ON PETITION TO TRANSFER
August 16, 2001
RUCKER, Justice
Following his 1999 jury trial, Anthony Wallace was convicted of three
counts of child molesting as Class C felonies for the 1988 and 1989
molestations of his daughters and sentenced to an aggregate term of twelve
years. On review, the Court of Appeals affirmed the trial court in a
memorandum decision. Wallace v. State, No. 46A03-0002-CR-56 (Ind. Ct. App.
July 31, 2000). Wallace raises several issues on transfer, one of which we
find dispositive: was his prosecution for these offenses barred by a five-
year statute of limitations. We grant transfer and reverse Wallace’s
convictions.
Facts
The facts most favorable to the verdict show that Anthony and Susan
Wallace were married with two daughters, T.W. and R.W. In March 1988,
Susan died in an automobile accident. In July 1988, Wallace and his
daughters moved from Hanna, Indiana to Wanatah, Indiana. According to the
trial testimony of T.W. and R.W., shortly after moving to Wanatah, Wallace
began molesting the girls, who were then ages twelve and thirteen
respectively. They testified that over a sixteen-month period, Wallace
fondled their breasts, inserted his finger into their vaginas, put his
mouth on their vaginas, and made them touch his penis.
In October 1989, Wallace struck R.W. in the face, which caused
bruising. When R.W. went to school the following day, a school counselor
observed the bruising and contacted Child Protective Services. When the
school counselor interviewed R.W., she was told about the molestations and
notified the LaPorte County Police Department. In January 1990, Wallace
voluntarily terminated his parental rights to T.W. and R.W. Thereafter,
the girls’ maternal grandparents adopted them. After conducting an
investigation, the detective assigned to the case wrote a letter to the
LaPorte County prosecutor in August 1990 recommending that the State not
file criminal charges against Wallace because “none of the people
interviewed support the Wallace girls’ position.” R. at 104, 357.
The case apparently lay dormant for the next eight years. For reasons
the record does not reflect, the State suddenly charged Wallace with four
counts of child molesting as Class C felonies on March 23, 1998. The case
proceeded to trial by jury. At the close of the State’s case in chief, the
trial court dismissed one of the counts of child molesting upon Wallace’s
motion for a directed verdict. The jury found Wallace guilty of the three
remaining counts. The trial court sentenced Wallace to four years on each
count, to be served consecutively, for a total term of twelve years. On
appeal, the Court of Appeals affirmed the trial court in a memorandum
decision. We grant Wallace’s petition to transfer.
Discussion
Wallace contends the statute of limitations barred the State from
prosecuting him on all three counts of child molesting as Class C felonies
because the acts allegedly occurred between July 1, 1988 and October 30,
1989. According to Wallace, the applicable statute of limitations provides
that prosecution for a Class C felony must be commenced within five years
of the alleged offense. See Ind. Code § 35-41-4-2(a)(1) (1998). Wallace
was not charged until March 1998, more than five years after the alleged
acts.
There are two important legal principles at the heart of our
discussion. First, the applicable statute of limitations is that which was
in effect at the time the prosecution was initiated. Patterson v. State,
532 N.E.2d 604, 607 (Ind. 1988); Streepy v. State, 202 Ind. 685, 177 N.E.
897, 898 (1931); see also Parmley v. State, 699 N.E.2d 288, 290 (Ind. Ct.
App. 1998), trans. denied.[1] Second, the statute to be applied when
arriving at a proper criminal penalty is that which was in effect at the
time the crime was committed. Williams v. State, 706 N.E.2d 149, 160 n.7
(Ind. 1999), reh’g denied, cert. denied, 529 U.S. 1113 (2000).
Here, between the date of the alleged offenses and the time Wallace
was charged, the statute of limitations was amended to allow prosecution
for certain classes of child molesting to be commenced at any time before
the alleged victim reaches thirty-one years of age. The statute provides
in relevant part:
(a) Except as otherwise provided in this section, a prosecution for
an offense is barred unless it is commenced:
(1) within five (5) years after the commission of a Class B,
Class C, or Class D felony; or
(2) within two (2) years after the commission of a misdemeanor.
(b) A prosecution for murder or a Class A felony may be commenced at
any time.
(c) A prosecution for the following offenses is barred unless
commenced before the date that the alleged victim of the offense
reaches thirty-one (31) years of age:
(1) IC 35-42-4-3(a) (Child molesting).
I.C. § 35-41-4-2 (1998) (emphasis added).[2]
At the time of the alleged offenses in this case, child molesting
under Indiana Code section 35-42-4-3(a) (1988) involved sexual conduct with
a child under twelve years of age and was punishable as a Class B felony.
However, the State did not charge Wallace under Indiana Code section 35-42-
4-3(a). This was apparently so because at the time the crimes were
allegedly committed T.W. and R.W. were ages twelve and thirteen
respectively, and as such they exceeded the age limitations set forth in
Indiana Code section 35-42-4-3(a). Rather, the State charged Wallace with
Class C felony child molesting under Indiana Code section 35-42-4-3(c)
(1988), which involved sexual conduct with a child between the ages of
twelve and fifteen. As such, Wallace was subject to the five-year statute
of limitations in Indiana Code section 35-41-4-2(a)(1).
“The primary purpose of a statute of limitations is to insure against
the inevitable prejudice and injustice to a defendant that a delay in
prosecution creates.” Kifer v. State, 740 N.E.2d 586, 587 (Ind. Ct. App.
2000). Statutes of limitation strike a balance between an individual’s
interest to be placed on notice to formulate a defense for a crime charged
and the State’s interest in having sufficient time to investigate and
develop its case. Roberts v. State, 712 N.E.2d 23, 31 (Ind. Ct. App.
1999), trans. denied. Here, although the investigation was completed in
1990, the State did not file charges against Wallace until 1998.
The State acknowledges that Wallace was convicted under Indiana Code
section 35-42-4-3(c) yet counters that the extended statute of limitations
in Indiana Code section 35-41-4-2(c)(1) nevertheless applies because an
ambiguity exists when Indiana Code section 35-41-4-2 is read as a whole.
However, the statute of limitations must be construed narrowly and in a
light most favorable to the accused. Thakkar v. State, 613 N.E.2d 453, 457
(Ind. Ct. App. 1993). As such, the extended statute of limitations in
Indiana Code section 35-41-4-2(c)(1) does not apply to Wallace, and the
State’s initiation of prosecution against Wallace nearly ten years after
commission of the offenses was barred by the five-year statute of
limitations in Indiana Code section 35-41-4-2(a)(1). Therefore, Wallace’s
three convictions for child molesting as Class C felonies must be reversed.
Conclusion
We reverse Wallace’s convictions.
SHEPARD, C.J., and SULLIVAN, J., concur.
BOEHM, J., dissents with separate opinion, in which DICKSON, J., concurs.
ATTORNEY FOR APPELLANT
Donald W. Pagos
Michigan City, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Eileen Euzen
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
ANTHONY WALLACE, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 46S03-0107-CR-331
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 46A03-0002-CR-56
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Robert W. Gilmore, Judge
Cause No. 46C01-9803-CF-23
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
August 16, 2001
BOEHM, Justice, dissenting.
Wallace was charged with child molesting as a Class C felony under
the 1988 version of Indiana Code section 35-42-4-3(c). I agree with the
majority that the five-year limitations period set forth in Indiana Code
section 35-41-4-2(a)(1) applies, and therefore the State’s claim against
Wallace was stale. For many years, this state has followed the rule that a
statute of limitations defense was not waivable. I believe both the
current Trial Rules and policy considerations dictate that a defendant
waives a statute of limitations defense by failing to raise it in the trial
court. Accordingly, I would affirm the trial court.
This problem has been addressed in Indiana only a few times. Most
recently, in Smith v. State, 678 N.E.2d 1152, 1154 (Ind. Ct. App. 1997),
trans. denied, the Court of Appeals, citing an 1859 case from this Court,
Ulmer v. State, 14 Ind. 52, 54-55 (1859), concluded that the State’s
prosecution of a defendant for an offense after the expiration of the
statutory period constituted fundamental error requiring reversal of the
defendant’s conviction. The court reasoned that because the State bears
the burden of proving that the offense was committed within the statutory
period, it should be viewed as an element of the crime and failing to
establish it was fundamental error. Id. (citing Fisher v. State, 259 Ind.
633, 645, 291 N.E.2d 76, 82 (1973); Atkins v. State, 437 N.E.2d 114, 117
(Ind. Ct. App. 1982)). In Ulmer, this Court stated that a defendant need
not plead the statute of limitations defense in order to avail himself of
it. 14 Ind. at 54-55.
Ulmer preceded the adoption of the Indiana Trial Rules by over a
century. In the civil context, it is now clear that if a defendant fails
to raise the statute of limitations as an affirmative defense, the defense
is waived. See Ind. Trial Rule 8(C). Under federal criminal procedure,
the answer is also clear. A statute of limitations defense is an
affirmative defense to a crime that must be asserted before or at trial to
avoid waiver. See Biddinger v. Commissioner of Police, 245 U.S. 128, 135
(1917); United States v. Karlin, 785 F.2d 90, 92-93 (3d Cir. 1986); United
States v. Walsh, 700 F.2d 846, 855 (2d Cir. 1983); United States v. Wild,
551 F.2d 418, 424-25 (D.C. Cir. 1977). Under the federal rule, the
jurisdiction of the court is not defeated when the State seeks to prosecute
the claim beyond the statutory period. Karlin, 785 F.2d at 92-93. The
Sixth and Tenth Circuits, which had previously held that the statute of
limitations defense was not waivable, have apparently reversed course. See
United States v. Gallup, 812 F.2d 1271, 1280 (10th Cir. 1987); United
States v. Hook, 781 F.2d 1166, 1173 n.10 (6th Cir. 1986).
As the D.C. Circuit pointed out in Wild, Federal Rule of Criminal
Procedure 12(b) identifies the defenses that may be raised at any time. By
implication, all others, including a statute of limitations defense, must
be raised at or before trial. 551 F.2d at 424 (quoting 8 James Wm. Moore,
Moore’s Federal Practice § 12.03(3) (2d. ed. 1976)). The same reasoning is
valid under the Indiana Trial Rules. Indiana Rule of Criminal Procedure 21
provides that the appellate and trial rules now apply to criminal
proceedings unless inconsistent with the criminal rules. See Rita v.
State, 674 N.E.2d 968, 970 n.3 (Ind. 1996). Criminal Rule 3 provides that
a motion to dismiss based upon subject matter jurisdiction may be raised at
any time, but does not specify when other affirmative defenses must be
raised. Trial Rule 8(C) calls for an affirmative defense to be raised by a
“responsive pleading,” i.e., in the answer in the case of a civil
defendant. In the criminal context, there is no analog to the answer, but
the same result is accomplished by requiring a defendant to raise a statute
of limitations defense in a pretrial motion, as the federal courts have
advised. See, e.g., United States v. Grimmett, 150 F.3d 958, 961-62 (8th
Cir. 1998) (statute of limitations issue was properly raised in pretrial
motion to dismiss under Federal Rule of Criminal Procedure 12(b)).
Policy considerations point in the same direction. I see no
compelling reason to allow the civil defendant to waive a statute of
limitations defense but not the criminal defendant. A criminal defendant,
like a civil defendant, should not be able to sit on a statute of
limitations defense until long after trial is completed. The result is a
waste of taxpayer funds and court time. The statute of limitations defense
is not a claim that the defendant did not commit the crime. Rather, it is
a claim that the prosecution should not be permitted to go forward for
policy reasons extraneous to this defendant and the crime with which he is
charged. Many other more fundamental constitutional and statutory rights
are accorded the criminal defendant, but most of these rights may be
waived, either affirmatively or by the failure to assert them. There is no
reason why the failure to assert a statute of limitations defense should be
treated more favorably. See Wild, 551 F.2d at 424-25 (reasoning that, like
the right to be represented by counsel or the right not to be put twice in
jeopardy, the statute of limitations defense should be waivable). The
State, as well as society at large, has a substantial interest in the
prosecution of crimes, regardless of when they occurred. Requiring a
statute of limitations defense to be asserted in a timely manner will
encourage a defendant with a valid defense to raise it promptly. It will
also avoid the situation where the State mistakenly neglects to prove the
date of the offense and the defendant says nothing hoping to capitalize on
that blunder on appeal.
In this case, affirming the conviction obviously sets the defendant up
for an ineffective assistance of counsel claim, and the end result of my
view may be the same as the majority’s. The same will presumably be true
in other cases unless the failure to raise the defense can be shown to have
been the result of a plausible defense strategy. But requiring the defense
to be asserted will encourage counsel to present it, and should discourage
wasted court proceedings. For these reasons, I respectfully dissent.
DICKSON, J., concurs.
-----------------------
[1] In Streepy, this Court offered the following explanation for such
a rule:
Statutes of limitation pertain to the remedy and not to substantive
civil rights. There can be no vested right in a remedy or mode of
procedure. The accused in a criminal case cannot claim that the
period prescribed by law in which a prosecution shall be begun shall
remain the same as when the crime was committed. The period of
limitation is granted in the grace of the sovereign and may be
enlarged or contracted or altogether taken away . . . .
Streepy, 177 N.E. at 898 (citations omitted).
[2] The General Assembly amended Indiana Code section 35-41-4-2 again
in 2000. See I.C. § 35-41-4-2 (Supp. 2000). However, the subsequent
amendments only relate to the statute of limitations for murder. Id.