                                                                                      FILED
MEMORANDUM DECISION
                                                                                 Sep 27 2017, 11:32 am

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



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                  Curtis T. Hill, Jr.
Anthony S. 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

Michael T. Monnier,                                        September 27, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           92A04-1704-CR-835

        v.                                                 Appeal from the Whitley Circuit
                                                           Court
State of Indiana,                                          The Honorable James R. Heuer,
                                                           Judge
Appellee-Plaintiff
                                                           Trial Court Cause No.
                                                           92C01-1604-FC-26




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 92A04-1704-CR-835 | September 27, 2017         Page 1 of 6
                                          Case Summary
[1]   In 2006, Appellant-Defendant Michael Monnier moved in with his girlfriend

      and three of her children, including A.T., who was born in September of 2002.

      At some point before Monnier moved out in 2011, he touched A.T.’s vagina

      with his hand. Monnier was eventually convicted of molesting A.T. and two of

      her siblings. Monnier contends that the State failed to establish that his

      molestation of A.T. occurred within the charged time period. We conclude that

      the State produced sufficient evidence to sustain a conclusion that he molested

      A.T. within the charged time period and that, in any event, because time is not

      of the essence in child molesting cases, the State was not required to prove the

      date of Monnier’s molestation of A.T. with that degree of specificity.

      Consequently, we affirm.



                            Facts and Procedural History
[2]   In June of 2006, the victims’ mother rented a house in Churubusco with her

      children, including J.T., T.T., and A.T. Monnier, who was in a relationship

      with the victims’ mother, moved in later that month. Monnier was over

      twenty-one years old at all relevant times and cared for the children while their

      mother worked. In around 2011, Monnier and the victims’ mother ended their

      relationship, and the children went to live with their father in Ohio.


[3]   At some point between January 1, 2006, and December 31, 2007, when J.T.

      was “about six or seven[,]” she was watching a movie with A.T. and fell asleep


      Court of Appeals of Indiana | Memorandum Decision 92A04-1704-CR-835 | September 27, 2017   Page 2 of 6
      on the couch. Tr. Vol. II p. 32. Monnier took J.T.’s blanket and asked her to

      lie with him on the floor. When J.T. did, Monnier took her hand and put it on

      his penis. Monnier also touched J.T.’s vagina over her clothes. T.T. was born

      in 2001 and lived in Churubusco from the time he was “like 4 until about 7 or

      8.” Tr. Vol. II p. 53. On one occasion in the summer of 2009, Monnier came

      into T.T.’s bedroom and fondled T.T.’s bare penis with his hand.


[4]   On one occasion between January 1, 2008, and December 31, 2009, A.T. was

      awakened by the family dog barking and saw Monnier standing in the

      doorway. Monnier took the dog downstairs and returned, telling A.T. to go

      back to sleep and that he would stay “so nothing bad happens.” Tr. Vol. II p.

      75. A.T. woke up and felt Monnier touching her vagina with his hand. A.T.,

      who was born in September of 2002, testified that she was four at the time

      Monnier molested her but also testified that it was possible that she was older.


[5]   On April 14, 2016, the State charged Monnier with five counts of Class C

      felony child molesting, with count II alleging that

              between the dates of January 1, 2008, and December 31, 2009, in
              Whitley County, State of Indiana, Michael T. Monnier did
              knowingly or intentionally perform or submit to fondling or
              touching with A.T., a child under fourteen (14) years of age, with
              the intent to arouse or satisfy the sexual desires of himself or the
              child.
      Appellant’s App. Vol. II pp. 9-10. Although Monnier initially denied touching

      any of the children, he eventually claimed that he had touched J.T.’s vagina

      accidentally and T.T.’s and A.T.’s genitals for disciplinary reasons. On


      Court of Appeals of Indiana | Memorandum Decision 92A04-1704-CR-835 | September 27, 2017   Page 3 of 6
      February 15 and 16, 2017, a jury trial was held, after which a jury found

      Monnier guilty of three counts of Class C felony child molesting, one

      conviction relating to each of the children. On March 20, 2017, the trial court

      sentenced Monnier to five years of incarceration for each of his convictions, the

      three sentences to be served consecutively, for an aggregate sentence of fifteen

      years.


                                    Discussion and Decision
[6]   Monnier contends only that the State failed to produce sufficient evidence to

      sustain his conviction for Count II, molestation of A.T. 1 When reviewing the

      sufficiency of the evidence, we neither weigh the evidence nor resolve questions

      of credibility. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). We look only to

      the evidence of probative value and the reasonable inferences to be drawn

      therefrom which support the verdict. Id. If from that viewpoint there is

      evidence of probative value from which a reasonable trier of fact could conclude

      that the defendant was guilty beyond a reasonable doubt, we will affirm the

      conviction. Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993).




      1
        Monnier does not claim that his convictions are barred by the statute of limitations for Class C felony child
      molesting, which bars prosecution for that crime more than five years after its commission. See Ind. Code §
      35-41-4-2(a)(1). We note, however, that
               [t]he period within which a prosecution must be commenced does not include any period
               in which … the accused person conceals evidence of the offense, and evidence sufficient
               to charge the person with that offense is unknown to the prosecuting authority and could
               not have been discovered by that authority by exercise of due diligence[.]
      Ind. Code § 35-41-4-2(h)(2). In any event, the statute of limitations is not an issue in this case.

      Court of Appeals of Indiana | Memorandum Decision 92A04-1704-CR-835 | September 27, 2017              Page 4 of 6
[7]   Monnier’s sole argument is that the State failed to establish that his molestation

      of A.T. occurred between the charged period of January 1, 2008, and December

      31, 2009. Monnier points to A.T.’s testimony that she was born in September

      of 2002 and that Monnier’s molestation of her occurred when she was four,

      which would place it between September of 2006 and September of 2007.

      While it is true that A.T. testified that she was four when Monnier molested

      her, she also testified that she did not remember everything that happened to

      her when she was four and five years old and that it was entirely possible that

      she was, in fact, older when the molestation occurred. This evidence is

      sufficient to sustain the jury’s conclusion that Monnier molested A.T. during

      the charged period. See Jordan, 656 N.E.2d at 817.


[8]   In any event, it was not necessary for the State to prove that Monnier’s

      molestation of A.T. occurred during the time charged, as time was not of the

      essence in this case. As the Indiana Supreme Court has held,


              time is not of the essence in the crime of child molesting. Hodges
              v. State (1988), Ind., 524 N.E.2d 774. See also Hoehn v. State
              (1984), Ind. App., 472 N.E.2d 926. It is difficult for children to
              remember specific dates, particularly when the incident is not
              immediately reported as is often the situation in child molesting
              cases. The exact date becomes important only in limited
              circumstances, including the case where the victim’s age at the
              time of the offense falls at or near the dividing line between
              classes of felonies.
      Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992).




      Court of Appeals of Indiana | Memorandum Decision 92A04-1704-CR-835 | September 27, 2017   Page 5 of 6
[9]    Monnier does not argue that this case qualifies as one where the exact date of

       the alleged molestation was important, and it is undisputed that A.T. was well

       below the dividing line between child molesting and sexual misconduct with a

       minor at all relevant times. See Ind. Code § 35-42-4-3(b) (defining child

       molesting and requiring that victims be under fourteen years of age) and Ind.

       Code § 35-42-4-9(b) (defining sexual misconduct with a minor and requiring

       that victims be between fourteen and sixteen years old). The State was required

       to prove that Monnier molested A.T. before she turned fourteen, and it is

       undisputed that it did so. See Krebs v. State, 816 N.E.2d 469, 473 (Ind. Ct. App.

       2004) (“As discussed above, Krebs’ abuse of L.K. occurred when she was

       between ten and fourteen years old. Although L.K. could not remember the

       specific date of the incident, it did not occur ‘near the dividing line between

       classes of felonies.’ See Barger, 587 N.E.2d at 1307. Therefore, proof of the

       exact time the act occurred is not essential to the State’s case, and Krebs’

       allegation fails for this count.”). Monnier has failed to establish that the State

       produced insufficient evidence to sustain his conviction for committing Class C

       felony child molesting on A.T.


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


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 92A04-1704-CR-835 | September 27, 2017   Page 6 of 6
