Split COA affirms dismissal of adult charge against man for alleged acts as teen

Determining the heart of the issue was “a lack of clarity in the Indiana Code,” a split Court of Appeals of Indiana panel ruled an adult criminal court rightly dismissed, for lack of jurisdiction, a child molesting charge against a man who allegedly forced a preteen to have sex with him when he was 16.

In 2012, Derick S. Pemberton, then 16, allegedly forced 11-year-old K.S. to have sexual intercourse with him. K.S. did not report the allegation to her parents, who would contact police, until November 2018, when K.S. was 16 and Pemberton was 21.

In January 2019, the state filed a delinquency petition alleging Pemberton, when he was 16, had committed an act that would be Class B felony child molesting if committed by an adult. The state asked the juvenile court to waive Pemberton, then 23, into adult criminal court.

Pemberton moved to dismiss and argued the juvenile court lacked the subject matter jurisdiction to consider the delinquency petition or conduct the waiver hearing. The juvenile court denied Pemberton’s motion but certified its order for interlocutory appeal.

The Indiana Supreme Court agreed with Pemberton and in September 2020 ordered the juvenile court to grant Pemberton’s motion to dismiss.

A month later, the state filed a charge of Class B felony child molesting against Pemberton in criminal court for the alleged crime he committed at 16.

Pemberton, relying on Indiana Code § 31-30-1-11(a), filed a motion to dismiss and argued the adult criminal court did not have jurisdiction over him for acts that occurred when he was a juvenile. The criminal court dismissed the case and the state appealed.

Upon review, the COA affirmed the Putnam Circuit Court’s dismissal of the state’s criminal charge against Pemberton for an alleged act of juvenile delinquency.

The COA determined the criminal court would not have automatically had jurisdiction of Pemberton when he allegedly committed Class B felony child molesting as a 16-year-old.

“… (O)ur legislature attempted in 2021 to amend Section 31-30-1-4 to add child molesting, vicarious sexual gratification, child solicitation, child seduction, sexual misconduct with a minor, and incest to the list of offenses over which the juvenile court does not have jurisdiction ‘if the individual was less than eighteen (18) years of age at the time of the alleged violation but at least twenty-one (21) years of age at the time of filing,’” Judge Melissa May wrote. “… That bill did not pass. The Indiana legislature, when given the opportunity to enact a law doing precisely what the State insists the legislature intends to have happen to Pemberton, chose not to bring that intent to fruition, and we decline the State’s invitation to infer the legislature intends the opposite.

“This is the broader statutory context in which we encounter the transfer statute at issue in this appeal,” May continued. “Section 31-30-1-11(a) indicates a criminal court should transfer a case to juvenile court immediately if ‘a defendant is alleged to have committed a crime before the defendant is eighteen (18) years of age[.]’ … The State asserts the clause ‘before the defendant is eighteen (18) years of age’ modifies the verb ‘alleged’ — rather than the verb ‘committed’ — such that, regardless of when the act was committed, a criminal court should transfer to juvenile court only those who remain under age eighteen at the time of the State’s filing of the charges.

“… To interpret the transfer statute in the manner the State proposes would allow the State to drag into adult court not just those adults who committed acts over which adult courts had jurisdiction if the juvenile was at least sixteen when the act was committed, see Ind. Code § 31-30-1-4, but literally any juvenile delinquent for whom the statute of limitations on adult crimes had not yet run,” May concluded.

Judge Derek Molter dissented from the majority, which also included Judge Nancy Vaidik, with a separate seven-page opinion.

Molter opined that if the adult criminal court lacked subject matter jurisdiction in this case, the transfer statute was not the reason. He concluded he would reverse the trial court’s order of dismissal of the case on that basis without expressing an opinion as to whether other statutes deprived the court of jurisdiction.

The case is State of Indiana v. Derick S. Pemberton, 21A-CR-668.

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