of Appeals Case No. 71A03-1610-CR-02319
Loretta H. Rush Chief Justice.
matter has come before the Indiana Supreme Court on a
petition to transfer jurisdiction, filed pursuant to Indiana
Appellate Rules 56(B) and 57, following the issuance of a
decision by the Court of Appeals. The Court has reviewed the
decision of the Court of Appeals, and the submitted record on
appeal, all briefs filed in the Court of Appeals, and all
materials filed in connection with the request to transfer
jurisdiction have been made available to the Court for
review. Each participating member has had the opportunity to
voice that Justice's views on the case in conference with
the other Justices, and each participating member of the
Court has voted on the petition.
duly advised, the Court DENIES the petition to transfer.
J., Slaughter, J., and Goff, J., vote to deny transfer.
respectfully dissent from the denial of transfer in this
case, which presents a single issue: whether the defendant
was a credit restricted felon. Jonathan Webster was found
guilty of child molestation stemming from sexual misconduct
with his seven-year-old niece, M.W. The trial court sentenced
Webster to thirty years in the Department of Correction and
found him to be a credit restricted felon. I think it is
necessary, at the very least, to remand this case for further
clarification because the record falls short of demonstrating
that Webster is a credit restricted felon.
relevant statute, Indiana Code section
35-41-1-5.5, defined a credit restricted felon as
"a person who has been convicted of . . . [c]hild
molesting involving sexual intercourse or deviate sexual
conduct (IC 35-42-4-3(a)) if . . . the offense is committed
by a person at least twenty-one (21) years of age; and . . .
the victim is less than twelve (12) years of age." The
statute took effect on July 1, 2008, and applied "only
to persons convicted after June 30, 2008." Upton v.
State, 904 N.E.2d 700, 704 (Ind.Ct.App. 2009), trans
denied. (quoting Pub.L. 80-2008, § 6). There is no
doubt that Webster was at least twenty-one years old and M.W.
was younger than twelve years old when the molestation
occurred, but the record does not support a finding that
Webster's offenses occurred after the June 30, 2008,
the proceedings, the State maintained that Webster molested
M.W. when she was seven years old. From the charging
information to the State's closing argument, the
State's position did not wane. The trial court's
preliminary instructions and final instructions to the jury
also made clear that the State alleged the molestation
occurred when M.W. was seven years old.
the witness testimony, it undoubtedly supported the
State's allegation. During M.W.'s direct examination,
the State told M.W. that they were "going to talk [to
her] about something that happened back when [she was] seven,
2006 and 2007." (Tr. Vol. III at 35.) M.W. answered
affirmatively, indicating that she understood the scope of
the time frame. M.W. was then shown a photograph taken
"right after the time period" that the
offense occurred, and she confirmed that the photo was taken
when she was eight years old. (Tr. Vol. III at 36) (emphasis
added). On redirect, M.W. was asked whether the incident
behind the shed occurred when she was "about seven,
" and M.W. again answered "yes." (Tr. Vol. II
at 70). Finally, M.W.'s Father's testimony further
corroborated that the molestation occurred between 2006 and
2007; he testified that Webster moved in with him, his wife,
and his daughters in 2006 and moved out by 2007.
that Webster's offenses were committed during the period
that he lived in his brother's home and M.W. testified
that she was seven years old when she was molested, the
offenses must have occurred between June 2, 2006 (when M.W.
turned seven years old) and June 2, 2007. But the credit
restricted felon statute would not go into effect until the
end of June 2008; by that time, M.W. was already nine years
old and Webster had moved out of the home, according to his
brother. Thus, applying the credit restricted felon statute
to this case risks violating our prohibition on ex post
recognize that Webster himself testified that he lived with
the victim from 2008 to 2010, but the magnitude of credible
evidence indicating that the offense occurred when M.W. was
seven years old is overwhelming. Moreover, the fact that
Webster admitted to living in the victim's home from 2008
to 2010, without more, shows nothing about the dates of the
offenses; not a single witness-not even the victim-testified
that Webster molested M.W. after the credit restricted felon
statute became effective. I think that, at the very least,
the record is not clear enough to find, beyond a reasonable
doubt, that Webster was a credit restricted felon.
Accordingly, I would grant transfer to remand this case on
the credit restricted felon issue, instructing the trial
court to clarify the record as to the time frame when the