Wallace v. State

ON PETITION TO TRANSFER 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, 732 N.E.2d 872 (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, TW. 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 TW. 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 RW.

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, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). Here, between the date of the alleged offenses and the time Wallace was charged, the statute of limitations was amended to allow progecution 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 (81) years of age: (1) IC 85-428-4-8(a) (Child molest ing). I.C. § 85-41-4-2 (1998) (emphasis added).2 At the time of the alleged offenses in this case, child molesting under Indiana Code section 85-42-4-8(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 seetion 85-42-4-8(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 85-41-4-2(3)(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 28, 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 35-42-4-8(c) yet counters that the extended statute of limitations in Indiana Code section 85-41-4-2(c)(1) nevertheless applies because an ambiguity exists when Indiana Code section 85-41-4-2 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 seetion 85-41-4-2(@)(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. . 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). . The General Assembly amended Indiana Code section 35-41-4-2 again in 2000. See LC. § 35-41-4-2 (Supp.2000).

However, the subsequent amendments only relate to the statute of limitations for murder. Id.