ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
AMY K. NOE STEPHEN R. CARTER
Richmond, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
COURT OF APPEALS OF INDIANA
vs. ) No. 33A05-0306-JV-303
STATE OF INDIANA, )
APPEAL FROM THE HENRY SUPERIOR COURT
The Honorable Michael D. Peyton, Judge
Cause No. 33D01-0207-JD-0017
MARCH 9, 2004
OPINION - FOR PUBLICATION
STATON, Senior Judge
T. M., a fifteen- year- old male, was charged with Child Molesting, a
Class B Felony under I. C. § 35-42-4-3(a). Prior to the fact-finding
hearing, the parties stipulated that T. M. had sexual intercourse with A. F.,
the victim. The only issue remaining before the trial court was A.
F.s age and T. M.s mistake of fact defense.
A mutual friend had introduced T.M. to A.F. while they were all at
Baker Pool. Several days later T. M and A. F. had sexual
intercourse at A. F.s house. Later at a hearing, T.M. testified that
he thought A.F. looked fourteen or fifteen years old. He testified
that A.F. told him that she was fifteen. The mutual friend had dated
A.F. the previous year and knew that A.F. was not fifteen, but he
never thought to tell T. M. A.F. insisted that she told T.M.
in front of their mutual friend that she was thirteen. T.M. further
testified that A.F. was more developed than a thirteen-year old and that he
didnt think thirteen year olds wear make up and dress up like that.
According to T. M., A. F. acted like somebody thats been
around longer than thirteen years and knows what shes doing. A. F.
was actually thirteen years old. After the hearing, the trial court made
the following findings:
The Court finds that on Count I of the Information the Offense of
Child Molesting that the evidence does establish beyond a reasonable doubt that (T.
M.) did perform sexual intercourse with (A. F.), a child under the age
of fourteen years. The respondent relied upon the defense of a
belief that the child was fifteen years of age, however, the statute, that
being I.C. § 35-42-4-3 specifies in subsection (c) that the accused person reasonably
believes that the child was sixteen years of age or older at the
time of the conduct. The testimony presented by the respondent through his
own testimony as well as through another witness indicated that he believed that
the child was fifteen and not sixteen years of age.
The trial court found T. M. to be a delinquent child based on
the Courts findings and set a date for a Dispositional Hearing. T.
M. filed his Motion to Correct Errors that was denied by the trial
court. He appeals and raises these issues:
Was the Statutory mistake of fact defense available to T. M.?
Did the trial court abuse its discretion by denying the defense to T.
Did the Finding of the trial court affirm and validate as a matter
of law the mistake of fact defense offered by T. M.?
We answer all of the above issues in the affirmative and reverse.
The Child Molesting Statute, I.C. § 35-42-4-3 divides sexual offenses into two categories:
1) offenses against children under 12 years of age; and, 2) offenses against
children between 12 and 16 years of age. Its reasonable belief defense
was absolute so long as the defendant reasonably believed the child was 16
years old or older. But as pointed out in
Lechner v. State,
715 N.E.2d 1285, (Ind. App. 1999), trans. denied, strict liability no longer existed.
However, in Lechner, supra, it was further pointed out that [i]n 1994,
the legislature again amended the statute, eliminating the subsections addressing offenses against children
between 12 and 16 years of age, and criminalizing sexual activity by persons
of any age involving persons under 14 years of age. See P.L.
7900- 1994 Section 12. However, in amending the statute, the legislature failed
to amend the subsection establishing as a defense the actors reasonable belief that
the victim was 16 years of age or older. So, in its
current form the statute appears to retain a reasonable belief defense predicated upon
a category of offensesexual activity involving children aged 12 to 16which no longer
We conclude as did the court in Lechner that the legislatures failure to
modify the age at which the defense becomes available to a defendant was
in the nature of an oversight or scriveners error and could not be
reflective of a legislative intent to permit the defense only when the actor
believes the victim is 16 or older, when the statute itself does not
prohibit the activity with a child aged 14 to 16.
The mistake of fact defense was available to T.M. and not limited to
those defendants whose reasonable belief was that the victim was at least 16
years of age. As a matter of law, the findings of the
trial court coupled with the absence of a statutory prohibition of sexual conduct
with a 15 year old requires that we reverse.
BROOK, C.J., and BAKER, J., concur.
IC § 35-41-3-7 Mistake of Fact It is a defense
that the person who engaged in the prohibited conduct was reasonably mistaken about
a matter of fact, if the mistake negates the culpability required for commission
of the offense.