Amended statute of limitations helps, hurts man charged with sexual misconduct with a minor

A man charged with multiple counts of sexual misconduct with a minor has successfully appealed for the dismissal of some of those charges — but only as it relates to alleged offenses that fell outside a statute of limitations period that was changed before the charges were filed.

In Jason B. Swopshire v. State of Indiana, 21A-CR-224, appellant-defendant Jason Swopshire was charged in November 2019 with five counts of felony sexual misconduct with a minor ranging in dates from March 2009 to March 2011. His alleged victim was the same in each instance, and she lived with Swopshire at the time.

Swopshire responded with a motion to dismiss, arguing the charges were filed outside the five-year statute of limitations. Additionally, he claimed that applying amended versions of the relevant statutes of limitations would be an unconstitutional ex post facto violation, as well as a violation of Indiana’s equal privileges and immunities.

The Allen Superior Court denied Swopshire’s motion, but the Indiana Court of Appeals partially reversed in his favor in a Monday opinion.

At issue were two legislative amendments to the relevant statute, Indiana Code § 35-41-4-2. Effective July 1, 2013, the statute of limitations period for sexual misconduct with a minor as a Class B or C felony was extended to 10 years. Then on July 1, 2019, the statute was again amended to hold that “for any offense of sexual misconduct with a minor, prosecution is ‘barred unless commenced before the date that the alleged victims of the offense reaches thirty-one (31) years of age … .’”

Swopshire argued that the 2013 amendment could not be applied to him, but the Court of Appeals disagreed.

“We have repeatedly held that extensions of statutes of limitations are applicable to crimes that have not expired at the time the extension takes effect,” Judge Edward Najam wrote Monday. He noted that the earliest date of Swopshire’s alleged offenses was March 6, 2009, for which the five-year statute of limitations would have expired in March 2014.

“However, effective July 1, 2013, prior to the expiration of the State’s ability to charge any of the offenses as alleged here, the General Assembly enacted the 2013 amendment, which expanded the limitations period to ten years,” Najam wrote. “Accordingly, applying the 2013 amendment to the State’s charges as alleged does not violate the federal or state Ex Post Facto Clauses, and the State had until March of 2019 under the 2013 amendment to file its charges.”

Even so, the COA agreed with Swopshire that some of the dates alleged in four of the five counts against him had expired prior to the effective date of the July 1, 2019, amendment.

“Between March 6, 2019, and June 30, 2019, the ten-year limitations period of the 2013 amendment was in effect. As such, any offense of sexual misconduct with a minor committed by Swopshire between March 6, 2009, and June 30, 2009, had expired prior to the State filing its charges” in November 2019, Najam wrote. “However, beginning on July 1, 2019, the 2019 amendment took effect. The 2019 amendment then captured the stated range of dates in Counts 1, 2, 3, and 5 from July 1, 2009, forward.”

Thus, the COA reversed the denial of Swopshire’s motion to dismiss with respect to the alleged offenses occurring before July 1, 2009, in Counts 1-3 and 5, remanding with instructions for the trial court to “limit the State’s alleged timeframes in Counts 1, 2, 3, and 5 to offenses occurring on or after July 1, 2009.”

But Swopshire lost on his argument that applying the amendments against him violated Article 1, Section 23 of the Indiana Constitution.

“… (W)e conclude that the reasoning from our substantive law applies to amendments to statutes of limitation: a person who is alleged to have committed an offense on a date that requires the application of one statute of limitations is not similarly situated to a person who is alleged to have committed the same offense but on a different date requiring the application of a different statute of limitations,” Najam wrote for the COA. “The dates of the alleged offenses make the two defendants ‘not similarly situated.’”

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