



Attorney for Appellant

Paula M. Sauer
Danville, IN


Attorneys for Appellee

Steve Carter
Attorney General of Indiana

Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, IN



      IN THE
      INDIANA SUPREME COURT


JAMES DAVID JACO
      Appellant (Defendant below),

      v.

STATE OF INDIANA
      Appellee (Plaintiff below).



)
)     Supreme Court No.
)     32S05-0211-CR-612
)
)     Court of Appeals No.
)     32A05-0104-CR-160
)
)
)



      APPEAL FROM THE HENDRICKS SUPERIOR COURT
      The Honorable Karen M. Love, Judge
      Cause No.  32D03-9907-CF-81



                           ON PETITION TO TRANSFER




                             NOVEMBER 128, 2002

SULLIVAN, Justice.

      Defendant James David Jaco seeks a declaration that in  a  prosecution
for child molesting committed by deviate sexual  conduct,  the  trial  court
must instruct the jury  that  the  State  is  required  to  prove  that  the
defendant acted with the intent to arouse or satisfy  sexual  desires.   The
defendant in another case we decide today, D’Paffo v. State, -  N.E.2d  -  ,
No. 28S04-0108-CR-377 (Ind. Nov. 12, 2002), makes the same claim.   For  the
reasons set forth in D’Paffo, we reject Jaco’s claim.


                                 Background


      James David Jaco was convicted of child molesting, a  Class  A  felony
under Ind. Code § 35-42-4-3(a), for removing his twelve-year-old  daughter’s
pants and “licking”  her  vagina  for  a  “couple  of  minutes.”   Jaco  was
sentenced to thirty-two years in the Department of  Correction.   The  trial
court  gave  the  jury  issued  both  preliminary  and  final   instructions
regarding the necessary elements which that the State was required to  prove
to convict Jaco.  These preliminary instructions read:
      The crime of child molesting, as charged in Count 1 of the information
      is defined by statute, in relevant part, as follows:   A  person  who,
      with a child under fourteen (14) years of age, performs or submits  to
      deviate sexual conduct commits child molesting, a  Class  “B”  felony.
      However, the offense is a Class “A” felony if it  is  committed  by  a
      person at least twenty-one (21) years of age.


      To convict the defendant of child molesting as a Class “A” felony,  as
      charged, the State must prove each of the following elements beyond  a
      reasonable doubt:


            1. The defendant, James David Jaco,
            2. Being at least 21 years of age,
            3. Did perform deviate sexual conduct,
            4. With C. J., a child under the age of fourteen (14) years.


      If the State fails to prove each of these elements beyond a reasonable
      doubt, you should find the defendant not guilty of child molesting  as
      charged in Count 1.


      If the State does prove each of these  elements  beyond  a  reasonable
      doubt, you should find the defendant, James David Jaco guilty of child
      molesting as charged in Count 1.


Jaco did not object to either instruction during his  trial.   But  in  this
appeal, he argues that Jaco  argued  “[in]  failing  to  instruct  the  jury
regarding the mens rea element of the offense  - with intent  to  arouse  or
satisfy sexual desires of Jaco or the child  –  the  trial  court  committed
fundamental error.”  Jaco, 760 N.E.2d at 180;

      In analyzing this claim, the Court of Appeals said:

      Jaco was convicted of child molesting under Ind. Code  §  35-42-4-3(a)
      which  relates  to  a  person  who  "performs  or  submits  to  sexual
      intercourse or deviate sexual conduct."  Ind. Code § 35-42-4-3(a) does
      not explicitly require an intent  to  arouse  or  satisfy  the  sexual
      desires because such an intent is implicit in the  use  of  the  terms
      "sexual intercourse" and "deviate sexual conduct."   For  example,  if
      an intent to arouse or satisfy the sexual desire was not  inherent  in
      the definition of deviate sexual conduct, medical  examinations,  such
      as a colonoscopy or  gynecological  examination,  would  arguably  fit
      within the definition.

For this reason, On review, the Court of Appeals  affirmed  his  conviction,
however concluded  said  that  “while  it  would  have  been  preferable  to
delineate the mens rea of the crime,.”  However, the  court  held  that  the
this error does did not rise to the level of fundamental error and  affirmed
Jaco’s conviction and sentence.”  Jaco v. State, 760 N.E.2d 176,  182  (Ind.
Ct. App. 2001).  The thirty-two year aggravated sentence was affirmed.   Id.
at 184.


                                 Discussion


      On petition to transfer, the Jaco asks this court to hold that it  was
determine whether or not it is fundamental error  for  the  trial  court  to
give an instruction on child  molesting  by  deviate  sexual  conduct  which
faileds to inform the jury that the defendant must act with  the  intent  to
arouse or gratify the sexual desires of himself  or  the  child.[1]   It  is
well established that a conviction of child molesting requires the state  to
prove beyond  a  reasonable  doubt  criminal  intent  on  the  part  of  the
defendant.  Louallen v. State, No. ------ (Ind. 2002); Snider v. State,  468
N.E.2d 1037, 1039 (Ind. 1984); Newton v. State, 456 N.E.2d  736,  745  n.  1
(Ind. Ct. App. 1983).

      Today in the separate opinion of D’Paffo v. State, - N.E.2d  -  ,  No.
28S04-018-CR-377, (Ind. November 12, 2002), we held hold that the  State  is
not required to prove intent to arouse or satisfy sexual  desires  in  order
to obtain a conviction of  child  molesting  by  committing  deviate  sexual
conduct.[2]  As such, we disapprove the view of the Court  of  Appeals  that
“an intent to arouse or satisfy the sexual desires  ...  is implicit in  the
use of  the  terms  ‘sexual  intercourse’  and  ‘deviate  sexual  conduct.’”
Therefore wWe hold instead that the trial court  in  the  present  case  was
correct in not instructing did not err when it failed  to  advise  the  jury
that the State was required to prove that Jaco  acted  with  the  intent  to
arouse or satisfy sexual desires.  In doing so, we  affirm  the  holding  of
the Court of Appeals.


                                 Conclusion



      We grant transfer, thereby  vacating  the  opinion  of  the  Court  of
Appeals pursuant to Ind.  Appellate  Rule  58(A)  (except  on  those  issues
described in footnote 1 supra with respect to which  we  summarily  affirm),
and affirm the judgment of the trial court.


      SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1]  Jaco also contends that  the  trial  court  abused  its  discretion  by
admitting a videotaped statement from the victim pursuant to Ind. Code § 35-
37-4-6 and that his sentence  is  manifestly  unreasonable.   The  Court  of
Appeals rejected both these claims.  Jaco, 760 N.E.2d at 184.  We  summarily
affirm the Court of Appeals as to these issues pursuant  to  Ind.  Appellate
Rule 58(A)(2).
[2] In D’Paffo, we specifically discuss the  “medical  examination”  example
quoted above that was used by the Court of Appeals  in  this  case  and  set
forth the procedure to be employed by the trial court  when  presented  with
such a situation.

