APPEAL FROM THE ST. JOSEPH SUPERIOR COURT, The Honorable William C. Whitman, Judge, Cause No. 24827
Shepard, C.j., DeBRULER, Givan, Pivarnik and Dickson, J.j. Concur.
This case presents the question whether a defendant who files an alibi notice is entitled to an instruction listing the time of the offense as an element of the crime. We hold he is not.
Appellant Ray Stewart was tried before a jury and convicted of child molesting, a class B felony, Ind. Code § 35-42-4-3(a) (Burns 1985 Repl.). The trial court sentenced him to twelve years imprisonment.
The evidence at trial was that on July 6, 1984, Ray Stewart invited eleven-year-old M.B. to go for a ride in his car. Stewart and M.B. drove around awhile and eventually stopped at a gas station where Stewart gave M.B. two dollars and said "it" was their secret. He then drove M.B. to another gas station where Stewart asked M.B. to follow him into the men's room. Stewart locked the door and performed deviate sexual conduct on M.B. Stewart and M.B. then returned to the car and drove back to M.B.'s house.
M.B. went inside and tearfully told his mother and his cousin, Daniel B., what had happened. M.B. told his mother that he could not go outside and play with other children because he was now "different." M.B.'s mother took him to a counselor, Paul Hartman. Hartman encouraged M.B. and his mother to report the incident to the police even though she expressed reluctance. M.B. and his mother did go to the police after several weeks of counseling but were confused about the date of the occurrence, reporting the date as July 13. Mrs. B. subsequently checked her calendar and identified the date as July 6. M.B.'s cousin Daniel testified that he recalled the date as July 6 because the incident happened on the same day he had received a check for driving a van to Nashville, Tennessee.
I. Time Not an Element of the Offense
Stewart challenges the giving of State's tendered Final Instruction No. 1, which the court modified. He contends that the State's response to his notice of alibi, in which the prosecution alleged that the offense occurred on July 6, required the State to prove that the incident occurred on that date as an element of the offense. Instruction No. 1 told the jury:
To convict the defendant of child molesting, the State must have proved each of the following elements:
The defendant, Ray Stewart,
1. performed deviate sexual conduct with [M.B.], 2. when [M.B.] was under twelve (12) Years of age.
The term "deviate sexual conduct" means an act involving a sex organ of one person and the mouth or anus of another person.
This instruction tracks the language of the statute under which Stewart was charged, Ind. Code § 35-42-4-3(a), and the section defining deviate sexual conduct, Ind. Code § 35-41-1-9(1). Stewart argues that the invocation of the alibi statute adds an essential element to the crime charged. The alibi statute requires the prosecutor to answer with specificity as to the date and place of the alleged crime if the State intends to present at trial a date and place other than that listed in the information. Ind. Code § 35-36-4-2(a) (Burns 1985 Repl.). Where the State at trial restricts its proof to the time frame within the ...