MEMORANDUM DECISION                                                                  FILED
                                                                                Feb 14 2017, 10:10 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                         CLERK
                                                                                 Indiana Supreme Court
precedent or cited before any court except for the                                  Court of Appeals
                                                                                      and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark F. James                                             Curtis T. Hill, Jr.
Anderson Agostino & Keller PC                             Attorney General of Indiana
South Bend, Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Matter of A.W.,                                           February 14, 2017

Appellant-Respondent,                                     Court of Appeals Case No.
                                                          20A03-1606-JV-1333
        v.                                                Appeal from the Elkhart Circuit
                                                          Court.
                                                          The Honorable Terry C. Shewmaker,
State of Indiana,                                         Judge.
Appellee-Petitioner.                                      The Honorable Deborah Domine,
                                                          Presiding Magistrate.
                                                          Cause No. 20C01-1604-JD-158



Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017          Page 1 of 7
                                             Statement of the Case
[1]   A.W. appeals from the trial court’s order adjudicating him a delinquent for
                                                                                            1
      committing what would be the criminal offense of child molesting as a Class B

      felony if committed by an adult. We affirm.


                                                    Issues
[2]   A.W. presents an issue for our review, which we restate as the following two:

                 I.       Whether there is sufficient evidence to support his
                          adjudication; and
                 II.      Whether the Romeo and Juliet defense set forth in Indiana
                          Code section 35-42-4-9(e) (2014), which defines the
                          criminal offense of sexual misconduct with a minor,
                          should apply in this case.

                                    Facts and Procedural History
[3]   In May of 2014, A.W., who was fifteen years old, had sexual intercourse with

      T.T., who at that time was a month past her thirteenth birthday. T.T. became

      pregnant and gave birth in February 2015 to a child whom A.W. later admitted

      he had fathered. A.W. was friends with T.T.’s older brother and shortly before

      the incident he had attended T.T.’s birthday party at her home. At the party,

      there were candles on T.T.’s birthday cake in the shape of numbers indicating

      that it was her thirteenth birthday.




      1
          Ind. Code § 35-42-4-3(a) (2007).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017   Page 2 of 7
[4]   On June 5, 2015, pursuant to Indiana Code section 31-37-10-1 (2008), the State

      filed a petition in St. Joseph County specifically alleging that A.W. was a

      delinquent child for having committed what would be Class B felony child

      molesting if committed by an adult. See Ind. Code § 35-42-4-3. After a hearing

      on March 7, 2016, the probate court adjudicated A.W. a delinquent. Prior to

      disposition, the case was transferred to the juvenile division in Elkhart County.

      On May 17, 2016, the juvenile court ordered that A.W. be removed from his

      home and be placed in an Indiana Department of Correction community-based

      regional campus for treatment. A.W. now appeals.


                                   Discussion and Decision
                                 I. Sufficiency of the Evidence
[5]   A.W. challenges the sufficiency of the evidence supporting his adjudication. In

      order to establish that A.W. was a delinquent child, the State was required to

      establish beyond a reasonable doubt that A.W. committed the criminal offense

      of child molesting as a Class B felony. See Ind. Code § 31-37-14-1 (1997).

      Child molesting, as alleged in this case, occurs when a person with a child

      under the age of fourteen performs or submits to sexual intercourse. Ind. Code

      § 35-42-4-3(a). A.W. argues that there was insufficient evidence of his

      culpability.


[6]   On appeal from a juvenile adjudication, our review involves consideration of

      only the evidence and reasonable inferences supporting the judgment. J.R.T. v.

      State, 783 N.E.2d 300, 302 (Ind. Ct. App. 2003), trans. denied. We neither


      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017   Page 3 of 7
      reweigh the evidence nor reassess the credibility of the witnesses. Id. If we

      conclude that there is substantial evidence of probative value from which a

      reasonable trier of fact could conclude that the juvenile had committed the act

      beyond a reasonable doubt, we will affirm the adjudication. Id.


[7]   There is no minimum age for the perpetrator of the offense in the child

      molestation statute. State v. J.D., 701 N.E.2d 908, 909 (Ind. Ct. App. 1998).

      Indeed, it appears that the legislature intended that the child molesting statute

      would apply to offenders regardless of their age and would apply to offenders

      who fall within the protected age group set forth by statute. Id. at 910. Further,

      juvenile delinquency statutes explicitly state that a child commits a delinquent

      act, if he or she commits an act that would be an offense if committed by an

      adult before becoming eighteen years old. Ind. Code § 31-37-1-2 (1997).


[8]   Additionally, consent is neither an element to be proved nor a defense to the

      charge of child molestation. State v. J.D., 701 N.E.2d at 912. Nonetheless, T.T.

      could not have consented to sexual intercourse because Indiana case law has

      long since held that a female child under fourteen years of age cannot give

      consent. Hanes v. State, 155 Ind. 112, 57 N.E. 704, 706 (1900).


[9]   A.W. testified that he had sexual intercourse with T.T., which resulted in her

      pregnancy and the birth of their child. T.T.’s mother testified that A.W.

      attended T.T.’s thirteenth birthday party in April 2014, and that he was friends

      with T.T.’s older brother. Further, A.W. does not dispute on appeal that he

      had sexual intercourse with T.T. Appellant’s Br. p. 7.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017   Page 4 of 7
[10]   Instead, A.W. argues that he was not culpable for the offense because he, too,

       was a child. “Indiana has a well-established policy to protect the welfare of

       children. The child molesting statute effectuates this policy by criminalizing the

       sexual molestation of children.” State v. J.D., 701 N.E.2d at 910 (citation

       omitted). We have previously observed that there is nothing to indicate

       legislative intent to withdraw the protection provided to children by the statute

       in order to protect the offender. Id. Indeed, there is nothing in the statute to

       indicate that our legislature intended to exclude the offending “person” who

       happens to fall within the protected age group. Id. Here, A.W. was just one

       year beyond the protected age group. However, our decision is supported by

       the juvenile statute, Indiana Code section 31-37-1-2, which acknowledges that

       the offender is not yet an adult, but has committed the offense.


[11]   There is sufficient evidence to support the juvenile court’s adjudication.


                                  II. Romeo and Juliet Defense
[12]   A.W. asks this Court to extend what has come to be known as the “Romeo and

       Juliet” defense found in Indiana Code section 35-42-4-9, sexual misconduct

       with a minor, to the facts of this case, although being charged under the child

       molesting statute. However, that same defense does not appear in the child

       molesting statute. The creation or making of laws in the State of Indiana is a

       legislative function. Further, the decision to file delinquency or criminal

       charges against an offender is left to the discretion of the prosecuting attorney

       within the jurisdiction where the alleged offense occurred. Finding that we are

       without authority to implement his request, we decline his invitation.
       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017   Page 5 of 7
[13]   Specifically, A.W. was charged by the State with child molesting, not sexual

       misconduct with a minor. The statute proscribing sexual misconduct with a

       minor, as it was in effect at the time of the offense, refers to the child victim

       being at least fourteen years of age but less than sixteen years of age engaging in

       sexual intercourse. Ind. Code § 35-42-4-9.


[14]   Note that the Romeo and Juliet defense as provided in subsection (e) of the

       statute, states that all of the following conditions must apply:


               (1) The person is not more than four (4) years older than the
               victim.
               (2) The relationship between the person and the victim was a
               dating relationship or an ongoing personal relationship. The
               term “ongoing personal relationship” does not include a family
               relationship.
               (3) The crime:
               (A) was not committed by a person who is at least twenty-one
               (21) years of age;
               (B) was not committed by using or threatening the use of deadly
               force;
               (C) was not committed while armed with a deadly weapon;
               (D) did not result in serious bodily injury;
               (E) was not facilitated by furnishing the victim, without the
               victim’s knowledge, with a drug (as defined in IC 16-42-19-2(1))
               or a controlled substance (as defined in IC 35-48-1-9) or knowing
               that the victim was furnished with the drug or controlled
               substance without the victim's knowledge; and
               (F) was not committed by a person having a position of authority
               or substantial influence over the victim.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017   Page 6 of 7
               (4) The person has not committed another sex offense (as defined
               in IC 11-8-8-5.2) (including a delinquent act that would be a sex
               offense if committed by an adult) against any other person.
[15]   In summary, the sexual misconduct with a minor statute does not apply to the

       facts of this case. At the time of the offense, T.T. was only thirteen years of

       age. She testified that she and A.W. were friends but not in a dating

       relationship. Further, the statute plainly states that “it is a defense to a

       prosecution under this section” if all of the factors found therein apply. Ind. Code

       § 35-42-4-9(e) (emphasis added). The Romeo and Juliet defense is inapplicable

       to this case.


                                                Conclusion
[16]   In light of the foregoing, the juvenile court’s adjudication is affirmed.


[17]   Affirmed.


[18]   May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017   Page 7 of 7
