MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Sep 06 2016, 8:31 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Gregory F. Zoeller
Anthony Churchward, P.C.                                 Attorney General of Indiana
Fort Wayne, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian W. Ellison,                                        September 6, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         92A05-1604-CR-964
        v.                                               Appeal from the Whitley Circuit
                                                         Court
State of Indiana,                                        The Honorable James R. Heuer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         92C01-1511-FA-86



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016   Page 1 of 5
[1]   Appellant-Defendant Brian Ellison pled guilty to sexually molesting his two

      daughters on multiple occasions between 2007 and 2014. Ellison was

      designated as a credit restricted felon by the trial court. The credit restricted

      felon statute went into effect in 2008. On appeal, Ellison argues that the trial

      court erred in designating him a credit restricted felon because his offenses

      against one of the victims may have occurred prior to the effective date of the

      statute. Because there is evidence that at least some of the molestations

      occurred after the effective date of the statute, we affirm the trial court’s

      judgment.



                            Facts and Procedural History
[2]   Between the dates of January 1, 2007 and June 30, 2014, Ellison, on multiple

      occasions, sexually molested his daughter, A.E. Between the dates of March 3,

      2010 and June 30, 2014, Ellison, on multiple occasions, sexually molested his

      daughter, S.S. On February 2, 2016, Ellison pled guilty to two counts of Class

      B felony child molesting and two counts of Class C felony child molesting. In

      exchange for his guilty plea, Appellee-Plaintiff the State of Indiana dismissed

      several other charges of child molesting. The parties also agreed that the trial

      court would have the discretion to order his sentences run concurrently or

      consecutively and that his initial executed sentence would not exceed forty

      years. The trial court sentenced Ellison to an aggregate term of thirty-six years

      with thirty to be executed and six suspended to probation. The trial court also




      Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016   Page 2 of 5
      designated Ellison a credit restricted felon and ordered that he register as a sex

      offender upon his release to probation.



                                   Discussion and Decision
[3]   On appeal, Ellison claims that the trial court erred by designating him a credit

      restricted felon with regards to his offenses committed against A.E.1

      Specifically, Ellison argues that those offenses may have occurred prior to the

      date when the credit restricted felon statute was enacted. For its part, the State

      argues that there was sufficient evidence that at least one incident of

      molestation occurred after the effective date of the credit restricted felon statute

      and so the trial court did not err in determining Ellison to be a credit restricted

      felon.


[4]   “Both the United States Constitution and Indiana Constitution prohibit ex post

      facto laws.” Upton v. State, 904 N.E.2d 700, 705 (Ind. Ct. App. 2009), trans.

      denied.; U.S. CONST. ART. I, § 10; IND. CONST. ART. 1, § 24. “‘To fall within

      the ex post facto prohibition, a law must be retrospective—that is, it must apply

      to events occurring before its enactment—and it must disadvantage the offender

      affected by it.’” Upton, 904 N.E.2d at 705 (quoting Paul v. State, 888 N.E.2d

      818, 825-826 (Ind. Ct. App. 2008)).




      1
       Credit restricted felons earn less good time credit for each day the person is imprisoned for a crime or while
      confined awaiting trial or sentencing. Ind. Code § 35-50-6-3.

      Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016              Page 3 of 5
[5]   Indiana Code section 35-31.5-2-72, previously section 35-41-1-5.5, defines

      “credit restricted felon,” and includes “a person who has been convicted of

      child molesting involving sexual intercourse or deviate sexual conduct if the

      offender is at least twenty-one years old and the victim is less than twelve years

      old.” The credit restricted felon statute became effective on July 1, 2008. “At

      the time of sentencing, a court shall determine whether a person is a credit

      restricted felon.” Ind. Code § 35-38-1-7.8. This determination must be based

      upon “(1) evidence admitted at trial that is relevant to the credit restricted

      status; (2) evidence introduced at the sentencing hearing; or (3) a factual basis

      provided as part of a guilty plea.” Id.


[6]   The sole question here is whether there is sufficient evidence to support the trial

      court’s determination that Ellison molested A.E. on or after July 1, 2008, the

      effective date of the credit restricted felon statute. A.E. told police that she lived

      in two different locations where Ellison molested her: in a mobile home where

      the family lived between 2007 and 2012, and a home the family lived in

      between 2012 and 2015. A.E. also reported molestations were frequent and

      happened when her mother was not home and when Ellison was alone with the

      children. Because A.E. reported that at least some of the molestations occurred

      at the family’s second home, and because the family did not move into that

      home until 2012, there was sufficient evidence for the trial court to determine

      that Ellison molested A.E. after the credit restricted felon statute went into

      effect.




      Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016   Page 4 of 5
[7]   In Sharp v. State, Sharp molested his victim every other weekend between

      August 1, 2007 and August 31, 2008. 970 N.E.2d 647, 648 (Ind. 2012). The

      trial court designated Sharp to be a credit restricted felon. On appeal, Sharp

      argued that there was insufficient evidence to support his designation as a credit

      restricted felon because there was no specific finding that any of the acts of

      molestation occurred after the effective date of the credit restricted felon statute.

      The Indiana Supreme Court rejected this argument in the following footnote:


              We need not explore the nature of the ex post facto prohibition,
              however, because C.S. testified at trial that the defendant
              “touched my private area,” Tr. at 76, “[a]bout every other
              weekend I was over [at the defendant’s house in the two years
              preceding October 6, 2008],” Tr. at 74, 77. This was sufficient
              evidence from which a reasonable jury could conclude that the
              defendant molested C.S. after July 1, 2008, the effective date of
              the statute.


      Id. at 648 n. 1. The same logic applies to the instant case and the trial court

      properly designated Ellison a credit restricted felon.


[8]   The judgment of the trial court is affirmed.


      Pyle, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 92A05-1604-CR-964 |September 6, 2016   Page 5 of 5
