‘Confusing’ jury instruction leads to reversal of child molesting conviction

IL file photo

The July 2014 revision to Indiana’s criminal code has resulted in the Court of Appeals of Indiana vacating a man’s child molesting conviction after finding that a jury instruction straddling both sides of the effective date of the revision could have confused jurors.

Appellant-defendant Chad Keister was living with his girlfriend, A.L., and her 11-year-old daughter, A.W., in 2012 when he began inappropriately touching A.W. on multiple occasions. The girl didn’t report the molestation until December 2015, when she confided in a school counselor.

Keister and A.L. broke up and Keister was subsequently charged with Class C and Level 4 felony counts of child molesting.

A.W. testified at the ensuing trial, but she was not able to pinpoint the exact dates when the molestations occurred. To that end, the state proposed a jury instruction that said it was “not required to prove the crime charged was committed on the particular date or during a particular time period alleged in the charging information.”

Keister objected to that instruction, but the Warrick Circuit Court gave it to the jury over his objection. He was then found guilty as charged and was sentenced to an aggregate of six years, with four years executed.

On appeal, Keister argued the jury instruction contained a misstatement of law that could have misled the jury. The Court of Appeals agreed and partially reversed in Chad A. Keister v. State of Indiana, 22A-CR-1531.

In a Wednesday opinion, Judge Margret Robb pointed to the July 1, 2014, effective date of the revision to the Indiana criminal code as presumably explaining why Keister was charged with both a Class C felony and a Level 4 felony. The Class C charge related to incidents in August 2012 and June 2014, while the Level 4 felony charge related to incidents in July 2014 and August 2015.

The revision also changed the applicable sentences: A Class C felony was punishable by up to eight years while a Level 4 is punishable by up to 12.

In explaining the decision to partially reverse, Robb focused on Count II and noted that A.W. testified to one molestation in all of 2014.

“She did not pinpoint a more specific date or a narrower time period, and the State did not try to elicit any testimony from which a date or a time period could be inferred, such as which grade she was in at school, or what type of clothing she was wearing (i.e., shorts versus a winter coat) when it happened,” Robb wrote. “With the entirety of 2014 on the table as to the date of the offense, the question is whether instructing the jury that the specific time period does not matter is problematic as to Count II. … (W)e conclude it was.

“The evidence showed the single 2014 act may have occurred in the time period alleged in Count II (July 1, 2014 to August 26, 2015) but it also may have occurred in the time period alleged in Count II (August 27, 2011 to June 30, 2014),” Robb continued. “Because the classification of and penalties for crimes changed in mid-2014, it does matter to that extent when the 2014 molestation occurred. Based on the evidence elicited by the state, we simply cannot know into which count the 2014 act should be sorted.

“The trial court did read the charging information as part of the final instructions, including the date ranges alleged for each count. But by instructing the jury thereafter that the State did not have to prove the 2014 offense occurred on a particular date or during the particular time period alleged in the information, the jury could have been misled into believing that if the single act of molestation occurred anytime in 2014, it could find Keister guilty of Count II.”

Not only was that erroneous, the COA found, but it was also prejudicial to Keister’s substantial rights. Thus, the appellate court remanded for the trial court to vacate the Level 4 felony conviction and to issue a new sentencing order on the Class C felony only.

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