A northern Indiana child molester will not be permitted to argue his case before the Indiana Supreme Court after a majority of justices denied his petition to transfer, though two dissenting justices found omissions in the record that they believe warranting their review of the case.
In a memorandum decision issued on Oct. 31, the Indiana Court of Appeals upheld Jonathan Webster’s conviction for Class A felony child molesting, finding, among other things, that the St. Joseph Superior Court properly determined Webster was a credit restricted felon. That was the issue presented on petition to transfer Jonathan Webster v. State of Indiana, 71A03-1610-CR-2319, and that issue is the reason Justice Steve David dissented from the majority’s decision to deny review of the case.
David wrote in a dissent to the decision of the majority — including Justices Mark Massa, Geoffrey Slaughter and Christopher Goff — that the record in the case fell short of demonstrating Webster was a credit restricted felon. Specifically, the justice said the record did not show that Webster’s offense occurred after the June 30, 2008 “effective date” in the applicable credit restricted felon statute, Indiana Code section 35-41-5.5.
David pointed to trial testimony that Webster’s molestation of his niece occurred during the time he was living with his brother’s family from 2006 to 2007. Further, M.W., the victim, testified that the molestation occurred when she was “about 7,” or between June 2, 2006 and June 2, 2007.
“I 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,” David wrote in his dissent. “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.”
Thus, David, joined by Chief Justice Loretta Rush, said he would grant transfer to remand the case with instructions to the trial court to “clarify the record as to the time frame when the offenses occurred.”