ILNews

Location, location, location determines who has burden of proof

Back to TopCommentsE-mailPrintBookmark and Share

Looking at the distance in the state statute between the description of the offense and a statutory exception, the Indiana Court of Appeals ruled the defendant had the burden of proof regarding a victim’s age.

Audie Wilson was convicted of sexual misconduct with a minor as a Class B felony; attempted sexual misconduct with a minor as a Class B felony; and sexual misconduct with a minor as a Class C felony.

During the trial, he did not object when the judge instructed the jury that the defendant had to prove by a preponderance of evidence that he reasonably believed the juvenile victim, C.C., was at least 16 years old.

On appeal, Wilson argued the trial court made a fundamental error by improperly giving him the burden of proving why he thought the victim was 16 years old.

Previously, in Moon v. State, 823 N.E.2d 715 (Ind. Ct. App. 2005), the Court of Appeals held the lower court made no error in assigning the defendant the responsibility of what he reasonably believed the victim’s age to be.

Wilson contended the Moon court erred. He asserted the “reasonable belief” defense negates a material element of the crime – the defendant’s knowledge of the victim’s age. Therefore, the defendant’s knowledge of the victim’s age must be proven beyond a reasonable doubt by the state.

The COA disagreed in Audie Wilson v. State of Indiana, 49A02-1210-CR-846.
 
The Court of Appeals pointed to the sexual misconduct statute and location of the exception in relation to the location of the definition of the principal offense. There, the exception was contained in a subsequent clause so, according to the COA, the defendant must raise an affirmative defense and must bear the burden of proof.

In a footnote, the court pointed out that no one challenged the language used in this particular jury instruction.

“We believe the instruction as given was erroneous,” Judge L. Mark Bailey wrote. “However, any error in this instance inured to Wilson’s benefit.”
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

ADVERTISEMENT