Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          FILED
any court except for the purpose of                          Aug 03 2012, 8:23 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                             GREGORY F. ZOELLER
Marion County Public Defender                     Attorney General of Indiana
Indianapolis, Indiana
                                                  ELLEN H. MEILAENDER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CLAIR WILSON,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 49A02-1110-CR-914
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Mark D. Stoner, Judge
                             Cause No. 49G06-1001-FA-7240



                                        August 3, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Clair Wilson appeals his four convictions for Class B felony sexual misconduct

with a minor following a jury trial. Wilson raises two issues for our review, which we

restate as follows:

       1.     Whether the State failed to present sufficient evidence of the age of
              Wilson’s victim, A.G.; and

       2.     Whether the jury was improperly exposed to extraneous and
              prejudicial information about an approaching ice storm.

       We affirm.

                      FACTS AND PROCEDURAL HISTORY

       A.G. was born on August 24, 1990. When A.G. was about five years old, her

mother began dating Wilson. On multiple occasions when A.G. was fourteen and fifteen

years old, Wilson performed oral sex on her and had her perform oral sex on him.

       On February 9, 2010, the State charged Wilson with multiple counts.            After

twenty-five minutes of deliberations, the jury returned a verdict against Wilson. The trial

court entered judgment of conviction against Wilson for four counts of sexual misconduct

with a minor, each as a Class B felony, and the court sentenced Wilson accordingly. This

appeal ensued.

                            DISCUSSION AND DECISION

                        Issue One: Sufficiency of the Evidence

       Wilson first contends that the State failed to prove that A.G. was between fourteen

and sixteen years of age when he performed oral sex on her and when he had her perform

oral sex on him. When reviewing a claim of sufficiency of the evidence, we do not


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reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d

1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the verdict

and the reasonable inferences that may be drawn from that evidence to determine whether

a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable

doubt. Id. If there is substantial evidence of probative value to support the conviction, it

will not be set aside. Id.

       The State charged Wilson with four counts of sexual misconduct with a minor,

each as a Class B felony. To prove those crimes, the State was required to show that

Wilson was at least twenty-one years of age when he performed or submitted to deviate

sexual conduct, oral sex, with a child at least fourteen years of age but less than sixteen

years of age.    See Ind. Code 35-42-4-9. Two of the State’s four charges alleged that

Wilson performed oral sex on A.G., once when she was fourteen and once when she was

fifteen, and two of the State’s charges alleged that Wilson submitted to oral sex from

A.G., once when she was fourteen and once when she was fifteen.               Wilson only

challenges the State’s evidence regarding A.G.’s age at the time of the deviate sexual

conduct.

       At trial, A.G. testified that she was “[f]ourteen or fifteen” when Wilson performed

oral sex on her “five times.” Transcript at 36. Thus, the State presented sufficient

evidence to support its two allegations that Wilson performed oral sex on A.G. while she

was between fourteen and sixteen years of age.

       A.G. further testified that she performed oral sex on Wilson “[m]ore than two”

times “before [she] w[as] sixteen.”     Id. at 48.   She also testified that those events


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happened after Wilson “touch[ed]” her vagina, id. at 20, 28-34, which occurred during

her “second seventh grade year,” id. at 21, during which she was “[f]ourteen” years old,

id. at 60. Thus, the State presented sufficient evidence to support its two allegations that

Wilson submitted to oral sex from A.G. while she was between fourteen and sixteen

years of age.

       A.G.’s testimony notwithstanding, Wilson argues on appeal that his convictions

must be reversed because each of the State’s four charges alleges a specific time frame

for the deviate sexual conduct, and A.G.’s testimony does not squarely place any act

within the State’s alleged timeframes. But this argument incorrectly assumes that time is

of the essence for Wilson’s crimes. As we have stated, “time is not of the essence” when

the State charges sexual misconduct with a minor unless the acts occurred “near the

dividing line between classes of felonies.” Krebs v. State, 816 N.E.2d 469, 473-74 (Ind.

Ct. App. 2004). There is no dispute that the events in question here did not fall near the

dividing line between classes of felonies because at all relevant time Wilson was at least

twenty-one years of age.

       We also note that the State’s charging information did not mislead Wilson in the

preparation and maintenance of his defense. See Neff v. State, 915 N.E.2d 1026, 1031

(Ind. Ct. App. 2009) (“A variance is fatal if the defendant is misled by the charge in the

preparation and maintenance of his or her defense, and he or she was harmed or

prejudiced as a result.”). Wilson’s defense was that he never engaged in inappropriate

sexual contact with A.G. at any time; he did not claim that the contact occurred but that




                                             4
she was outside the requisite age range. As such, A.G.’s testimony did not need to be any

more specific than it was, and Wilson’s arguments to the contrary must fail.

                                Issue Two: The Expeditious Jury

        Wilson also argues that he must have been denied a fair and impartial jury because

the jury only deliberated for twenty-five minutes before determining his guilt. While the

legal context of Wilson’s argument on this issue is unclear,1 it appears that his argument

is that the trial court “improperly exposed [the jury] to extraneous material,” i.e., the

weather report, which, he alleges, had “a clear potential to taint its verdict.” Appellant’s

Br. at 9. Wilson then cites four excerpts from the transcript in which either his attorney

or the court made a comment about an approaching ice storm. Based on those excerpts,

Wilson concludes that “[w]eather was a clear concern during Wilson’s jury trial.” Id. at

10.

        As an initial matter, Wilson has not preserved this supposed error for appellate

review. The approaching weather was well known to his trial counsel, yet his counsel did

not object to the alleged exposure of this information to the jury, nor did he request a

mistrial. See Lindsey v. State, 260 Ind. 351, 355-56, 295 N.E.2d 819, 822-23 (1973)

(reviewing the defendant’s claim that the jury had been improperly exposed to extraneous

material after noting that the defendant had moved for a mistrial on the same basis).

Waiver notwithstanding, the reason Wilson’s counsel did not object is because there is no

        1
            Insofar as Wilson attempted to argue that the jury was too concerned with approaching severe
weather to give him the consideration to which he was constitutionally entitled based on the length of the
trial or the facts of his case, he does not support that potential argument with cogent reasoning, and it is
waived. Ind. Appellate Rule 46(A)(8)(a); see also Shield v. State, 523 N.E.2d 411, 413 (Ind. 1988)
(rejecting the defendant’s argument that he had been denied his right to a jury trial and due process
“because the jury deliberated and reached a verdict in only fifty minutes” in light of “the length of the
trial and the facts in this case”).
                                                     5
evidence that the jury was exposed to the information. Indeed, each of Wilson’s four

transcript excerpts reflects commentary made either outside the presence of the jury or

after the jury returned its verdict. As such, Wilson presents no evidence that the jury was

ever exposed to extraneous material, and Wilson’s arguments to the contrary are without

merit.

                                       Conclusion

         In sum, we affirm Wilson’s convictions. The State presented sufficient evidence

of A.G.’s age at the time of the crimes, and Wilson has not shown that he was denied his

right to a fair and impartial jury.

         Affirmed.

RILEY, J., and DARDEN, J., concur.




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