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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

ADVERTISEMENT