MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Dec 29 2017, 9:29 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kevin McShane                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Henry A. Flores, Jr.
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Riggle,                                         December 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1704-CR-787
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Sheila Carlisle,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G03-1604-F1-14204



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-787 | December 29, 2017        Page 1 of 6
                                Case Summary and Issue
[1]   Following a jury trial, Michael Riggle was convicted of three counts of child

      molesting, all Level 1 felonies, and was sentenced to sixty years in the Indiana

      Department of Correction. Riggle appeals, raising one issue for our review:

      whether the State presented sufficient evidence to support his conviction for

      Count III of child molesting. Concluding the evidence was sufficient, we

      affirm.



                            Facts and Procedural History
[2]   Riggle was born on September 28, 1980. His daughter, G.R. was born on July

      3, 2003. When G.R. was seven or eight years old, Riggle began forcing G.R. to

      perform oral sex on him. This occurred on numerous occasions and continued

      after they moved to a new house in 2013.


[3]   In January of 2016, when G.R. was twelve years old, Riggle began penetrating

      her with his penis. This occurred on several occasions in different rooms in the

      house. The last time was on April 9, 2016, just prior to Riggle attending a

      friend’s wedding. Shortly after that date, G.R.’s teacher, who had previously

      been approached by a classmate’s mother about concerns for G.R., noticed

      G.R. was crying and visibly upset after lunch. The teacher sent G.R. to talk

      with the school principal, who filed a report with the Department of Child

      Services (“DCS”) based on their discussion. A DCS family case manager went

      to G.R.’s house, where Riggins angrily refused to allow the case manager into


      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-787 | December 29, 2017   Page 2 of 6
      the home. After the police, who had accompanied the family case manager,

      spoke with Riggins, Riggins gave permission for the family case manager to

      speak with G.R. Based on disclosures made by G.R., the family case manager

      took her, her sister, and her step-sisters to the DCS office for a formal interview.

      During the interview with a forensic child interviewer, G.R. made a disclosure

      that was forwarded to the Indianapolis Metropolitan Police Department.


[4]   Based on that disclosure and the ensuing investigation which included a

      forensic medical examination, the State charged Riggle with three counts of

      Level 1 felony child molesting. Count III alleged Riggle, being at least twenty-

      one years of age, “did perform or submit to other sexual conduct” with G.R., a

      child under the age of fourteen between July 3, 2015 and April 8, 2016. 1 A jury

      found Riggle guilty as charged and the trial court sentenced him to thirty years

      on each count, with the sentences on Counts I and II to be concurrent, and the

      sentence on Count III to be consecutive, for a total sentence of sixty years.

      Riggle now appeals only his conviction of Count III.



                                   Discussion and Decision




      1
        Count I alleged that “[o]n or about April 9, 2016, [Riggle], a person at least twenty-one (21) years of age,
      did perform or submit to sexual intercourse with G.R., a child under the age of fourteen years . . . .”
      Appellant’s Appendix, Volume 2 at 2. Count II alleged that “[o]n or about or between January 1, 2016 and
      April 8, 2016, [Riggle], a person at least twenty-one (21) years of age, did perform or submit to sexual
      intercourse with G.R., a child under the age of fourteen years . . . .” Id. Riggle does not challenge his
      convictions on those counts.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-787 | December 29, 2017             Page 3 of 6
                                     I. Standard of Review
[5]   Riggle contends the evidence was insufficient to prove that he knowingly or

      intentionally performed or submitted to other sexual conduct with G.R.

      between July 3, 2015 and April 8, 2016.


[6]   In reviewing a challenge to the sufficiency of the evidence, we neither reweigh

      the evidence nor judge the credibility of the witnesses; instead considering only

      the evidence most favorable to the judgment and reasonable inferences

      therefrom. Pugh v. State, 52 N.E.3d 955, 966 (Ind. Ct. App. 2016), trans. denied.

      “We will affirm the conviction if there is probative evidence from which a

      reasonable jury could have found the defendant guilty beyond a reasonable

      doubt.” Dillard v. State, 755 N.E.2d 1085, 1089 (Ind. 2001). In other words, we

      will only reverse for insufficiency of the evidence if “no reasonable factfinder

      could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind.

      2016).


                                             II. Count III
[7]   It is clear from the evidence that the “other sexual conduct” alleged in Count III

      is oral sex; G.R. testified that Riggle placed his penis in her mouth. See Ind.

      Code § 35-31.5-2-221.5 (defining “other sexual conduct” to mean, among other

      things, an act involving a sex organ of one person and the mouth of another).

      Riggle concedes such conduct is prohibited and he does not specifically argue

      that the conduct did not occur. Instead, he argues the evidence is insufficient to



      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-787 | December 29, 2017   Page 4 of 6
      establish that the “other sexual conduct” occurred within the time frame alleged

      by the State.


[8]   G.R. testified that before Riggle began having sexual intercourse with her, he

      would put his penis in her mouth. She testified that conduct began when she

      was seven or eight, and although she could not remember the last time it

      occurred, she knew it happened more than once when they lived in a house on

      Rybolt Street. See Transcript, Volume 2 at 238. Riggle’s wife and G.R.’s

      stepmom, Dorothy, testified the family lived in the house on Rybolt Street for

      almost three years, so they moved to that house in “maybe 2013.” Tr., Vol. 3 at

      20. Riggle therefore argues that “the last act of oral sex described by [G.R.]

      could have been as much as two (2) years-plus, before the earliest date of the

      offense – July 3, 2015, charged in the Information. It is therefore just as likely

      that the last act occurred before July 3, 2015, as on or after that date.” Brief of

      Appellant at 12.


[9]   As Riggle alleges, the date of the offense covered by Count III is not clear from

      the testimony. Indiana Code section 35-34-1-2(a)(5) requires an information to

      state the date of the offense with sufficient particularity to show that the offense

      was committed within the applicable statute of limitations. Here, the statutory

      period of limitations is not an issue – a prosecution for a Level 1 felony can

      initiated at any time. Ind. Code § 35-41-4-2(c). And Indiana Code section 35-

      34-1-2(a)(6) requires the information to state the time of the offense as definitely

      as possible if time is of the essence. However, as the State points out, time is

      generally not of the essence in child molesting cases. Love v. State, 761 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-787 | December 29, 2017   Page 5 of 6
       806, 809 (Ind. 2002). The exact date in child molesting cases is important only

       in limited circumstances, such as where the victim’s age affects the class of

       charge. Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). The important age

       for determining classes of felonies in child molesting cases is fourteen. Compare

       Ind. Code § 35-42-4-3 (defining child molesting as occurring with a child under

       the age of fourteen years) and Ind. Code § 35-42-4-9 (defining sexual

       misconduct with a minor as occurring with a child at least fourteen years of

       age). G.R. testified that she was six or seven when the molestation began and

       she was only thirteen at the time of trial. Therefore, the precise date of the

       offense is not of the essence and is not a material element of the crime.


[10]   The State proved that acts of “other sexual conduct” occurred when G.R. was

       well under the age of fourteen. Given that time is not of the essence in child

       molesting cases except in limited circumstances not applicable here, we do not

       find the evidence to be insufficient due to failure to prove the acts occurred

       during the specific dates alleged in the information.



                                               Conclusion
[11]   The State proved by sufficient evidence that Riggle performed “other sexual

       conduct” with G.R. prior to her fourteenth birthday. His conviction for Count

       III of child molesting is therefore affirmed.


[12]   Affirmed.


       Crone, J., and Bradford, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-787 | December 29, 2017   Page 6 of 6
