                                                                              FILED
                                                                         Aug 22 2016, 8:18 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Paul J. Podlejski                                          Gregory F. Zoeller
      Anderson, Indiana                                          Attorney General of Indiana

                                                                 Larry D. Allen
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Larry R. Beedy, Jr.,                                       August 22, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 48A02-1510-CR-1703
              v.                                                 Appeal from the Madison Circuit
                                                                 Court
      State of Indiana,                                          The Honorable David Happe,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 48C04-1501-FC-141



      Altice, Judge.


                                                 Case Summary


[1]   Following a jury trial, Larry R. Beedy, Jr. was convicted of sexual misconduct

      with a minor, a Level 5 felony, and subsequently sentenced to six years, with

      three years executed in the Department of Correction, one year in community

      corrections, and two years suspended to probation. Beedy presents two issues
      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016                  Page 1 of 12
      for our review, one of which we find dispositive: Was Beedy erroneously

      precluded from asserting the affirmative defense set forth in Ind. Code § 35-42-

      4-9(e)1?


[2]   We reverse.


                                           Facts & Procedural History


[3]   In 2013, Beedy, then seventeen years old, and A.W., then thirteen years old,

      were in a dating relationship and engaged in sexual activity. As a result of their

      conduct, on December 6, 2013, Beedy was adjudicated a delinquent for

      committing acts against A.W. of child molesting and child exploitation,

      criminal offenses if committed by an adult.2 Sometime between August 1 and

      November 6, 2014, Beedy and A.W. had sexual intercourse and conceived a

      child.3 During that timeframe, A.W. turned fifteen years old and Beedy was

      eighteen years old.4




      1
        Provisions such as this are commonly referred to as Romeo and Juliet laws. See, e.g., Danielle Flynn, All the
      Kids Are Doing It: The Unconstitutionality of Enforcing Statutory Rape Laws Against Children and Teenagers 47
      New. Eng. L. Rev. 681, 687-90 (2013) (discussing age gap provisions and the so-called Romeo and Juliet
      laws).
      2
        Beedy’s child molesting adjudication resulted from his admission that he engaged in sexual intercourse with
      A.W. when A.W. was only thirteen years old. See I.C. § 35-42-4-3 (“[a] person who, with a child under
      fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child
      molesting, a Class B felony”). Beedy’s admission that he recorded sex acts between him and A.W. served as
      the basis for his child exploitation adjudication. See I.C. § 35-42-4-4 (defining child exploitation).
      3
          This is the second child conceived between Beedy and A.W. The first child was born in February 2014.
      4
          Beedy is exactly three years, nine months, and twelve days older than A.W.


      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016                        Page 2 of 12
[4]   On January 30, 2015, the State charged Beedy with one count of sexual

      misconduct with a minor as a Level 5 felony.5 Prior to trial, Beedy filed a

      motion to dismiss the charge based in part on the defense found in I.C. § 35-42-

      4-9(e). The State in turn filed a motion in limine seeking to preclude Beedy

      from raising the defense by alleging that he was disqualified due to his prior

      juvenile adjudications for sex offenses. The trial court held a hearing on the

      competing motions on June 15, 2015. After the parties presented their

      respective arguments, the trial court granted the State’s motion in limine and

      denied Beedy’s motion to dismiss.


[5]   The parties appeared for a subsequent hearing on July 13, 2015. On that same

      day, Beedy filed a memorandum in support of his motion to dismiss as well as a

      motion to certify the court’s ruling pertaining to the “Romeo and Juliet”

      defense for interlocutory appeal. After additional evidence and argument

      regarding the applicability of the defense, the trial court again denied Beedy’s

      request for dismissal and also denied his motion to certify the matter for

      interlocutory appeal.


[6]   A jury trial was held on September 2, 2015. Prior to the start of trial, Beedy

      renewed his motion to dismiss on the same grounds previously argued, and that

      motion was again denied. After the State rested, Beedy made an offer to prove




      5
       I.C. § 35-42-4-9(a) (“A person at least eighteen (18) years of age who, with a child at least fourteen (14)
      years of age but less than sixteen (16) years of age, performs or submits to sexual intercourse or other sexual
      conduct . . . commits sexual misconduct with a minor, a Level 5 felony”).

      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016                          Page 3 of 12
      regarding the defense and moved for a directed verdict on the basis that the

      defense applied, which the trial court denied. Beedy also submitted proposed

      instructions setting forth the defense, and the trial court, in keeping with its

      prior rulings, refused to give the instructions. The jury ultimately found Beedy

      guilty of sexual misconduct with a minor, a Level 5 felony. 6 Beedy now

      appeals.


                                             Discussion & Decision


[7]   As a matter of first impression, we must decide whether Beedy, who has a prior

      adjudication for a sex offense against the same victim, can assert the defense set

      forth in I.C. § 35-42-4-9(e). Subsection (e) provides:


               It is a defense to a prosecution [for sexual misconduct with a
               minor] if all the following 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




      6
        After deliberating for a period of time, the jury was deadlocked and sent a note to the trial court with
      questions concerning whether Beedy had been misled that he could continue his sexual relationship with
      A.W. Over Beedy’s objection, the trial court gave the jury an additional instruction that ignorance of the law
      is no excuse for criminal behavior. The jury returned to its deliberations and fifteen minutes later came back
      with a guilty verdict. On appeal, Beedy argues that the additional instruction amounted to an Allen charge,
      which refers to a supplemental instruction suggesting to a deadlocked jury that it should reach a certain
      verdict. See Allen v. U.S., 164 U.S. 492 (1896); Fuentes v. State, 10 N.E.3d 68, 74 (Ind. Ct. App. 2014), trans.
      denied. We need not address this issue given our conclusion that Beedy was entitled to assert the affirmative
      defense found in I.C. § 35-42-4-9(e).

      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016                         Page 4 of 12
                 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.


                 (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.



Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016      Page 5 of 12
      (Emphasis supplied). Beedy asserts, and the State does not dispute, that each of

      these requirements is met in this case.7 The sole dispute is how the language

      “any other person” in subsection (e)(4) should be interpreted.8 With regard to

      subsection (e)(4), Beedy admits that he had been adjudicated a delinquent for

      sex offenses that involved A.W. as the victim.


[8]   Beedy argues that the “any other person” language in subsection (4) should be

      interpreted as referencing a person other than the victim of the pending sexual

      misconduct with a minor charge. In other words, a previous sex offense

      committed against the same victim is excluded for purposes of determining

      applicability of the defense. As applied herein, Beedy maintains that his prior

      adjudications for sex offenses would not preclude application of the defense

      because A.W. was the victim of the prior offenses and is the same victim

      identified for the current offense. In contrast, the State argues that “any other

      person” should be interpreted to mean any person other than the defendant.

      The State’s position is that it does not stand to reason that the legislature would

      afford Beedy a defense for the same conduct that resulted in his juvenile

      adjudications just because it involved the same victim.




      7
        A.W. resided with Beedy and his family after her mother abandoned her. Beedy was the only person with
      whom A.W. had ever had sexual intercourse. A.W. testified that she and Beedy were in an ongoing,
      romantic relationship and that they desired to be married. She further testified that Beedy never seduced,
      threatened, or coerced her in any way to engage in sexual intercourse with him, that Beedy never gave her
      illicit substances, and never forced himself upon her. A.W. maintained that their sexual encounters were
      always consensual.
      8
          There is no dispute about the language used in subsections (e)(1) through (e)(3).


      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016                     Page 6 of 12
[9]    The trial court agreed with the State’s interpretation:


               I don’t think the defense is available because of the language
               contained in 35-42-4-9(e) 4. I’m happy to look at additional
               materials, counsel, of [sic] you’re able to discover some
               additional materials on it, but I think frankly we’re over thinking
               this a little bit. The “any other person” refers to any other person
               than the defendant in the court’s eyes.


       Transcript at 21. Indeed, the trial court believed that it was “not a close call” as

       to how the language should be interpreted. Id. at 22.


[10]   Statutory interpretation presents a question of law that we review de novo.

       Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010). When faced with a question

       of statutory interpretation, we first examine whether the language of the statute

       is clear and unambiguous. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.

       2007). If it is, we need not apply any rules of construction other than to require

       that words and phrases be given their plain, ordinary, and usual meanings. Id.

       Where a statute is open to more than one interpretation, it is deemed

       ambiguous and subject to judicial construction. Taylor v. State, 7 N.E.3d 362,

       365 (Ind. Ct. App. 2014). Our primary goal in interpreting a statute is to

       ascertain and give effect to the legislature’s intent and the best evidence of that

       intent is the statute itself. Nicoson, 938 N.E.2d at 663. To that end, we read

       provisions of the statute together so that no part is rendered meaningless if it

       can be harmonized with the remainder of the statute. Taylor, 7 N.E.3d at 365.

       We presume that the legislature intended for the statutory language to be



       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016   Page 7 of 12
       applied in a logical manner in harmony with the statute’s underlying policy and

       goals. Brown v. State, 912 N.E.2d 881, 894 (Ind. Ct. App. 2009), trans. denied.


[11]   Our reading of the statute leads us to conclude that the language “any other

       person” is unambiguous.9 We, however, do not interpret this language as the

       trial court did or as the State urges. The trial court’s interpretation that “any

       other person” means any person other than the defendant renders the phrase

       “any other person” absolutely meaningless. Indeed, it is illogical to interpret

       the language in that manner because the defendant cannot commit a sex crime

       against himself, thus there is no need for the additional language. To us, it is

       clear that when read in context, the plain language of I.C. § 35-42-4-9(e)(4)

       means that a prior sex offense against the same victim does not render the

       defense inapplicable. Through the language employed, the legislature has

       provided a defense for an individual who is in a dating or ongoing personal

       relationship with the victim, who is not more than four years older than the

       victim, who engages in consensual sexual conduct with the victim, and who

       does not have prior convictions/adjudications against a victim other than the

       victim in the instant case.




       9
         By suggesting the General Assembly could have used different language to unambiguously express an intent
       to exclude sex offenses against the current victim, the dissent essentially finds the statutory language to be
       ambiguous. Where there is an ambiguity, the rule of lenity “requires that penal statutes be construed strictly
       against the State and any ambiguities resolved in favor of the accused.” Meredith v. State, 906 N.E.2d 867,
       872 (Ind. 2009). Thus, to the extent the dissent suggests the statutory language is ambiguous, the language
       must be construed in favor of Beedy.

       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016                       Page 8 of 12
[12]   Having determined that the statutory language is unambiguous, we need not

       address the State’s various arguments construing the statute contrary to its plain

       meaning. Further, to the extent the State’s arguments are based on policy

       considerations, this is not the proper forum. We therefore conclude that Beedy

       established his entitlement to the defense found in I.C. § 35-42-4-9(e), and

       consequently, his conviction cannot stand. We reverse and remand this cause

       with instructions to vacate Beedy’s sexual misconduct with a minor conviction.


[13]   Judgment reversed and remanded with instructions.


       Bailey, J., concurs.

       Bradford, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016   Page 9 of 12
      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Paul J. Podlejski                                          Gregory F. Zoeller
      Anderson, Indiana                                          Attorney General of Indiana

                                                                 Larry D. Allen
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Larry R. Beedy, Jr.,                                       August 22, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 48A02-1510-CR-1703
              v.                                                 Appeal from the Madison Circuit
                                                                 Court
      State of Indiana,                                          The Honorable David Happe,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 48C04-1501-FC-141




      Bradford, Judge, dissenting.

[1]   I respectfully disagree with the majority’s conclusion that Beedy is entitled to

      raise a “Romeo and Juliet” defense in this case because the victim in his

      previous adjudications for child molesting and child exploitation happens to be

      the same child he was charged with victimizing in this case. Consequently, I

      respectfully dissent.


      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016               Page 10 of 12
[2]   The sexual misconduct with a minor statute excludes anyone who has a prior

      sex offense “against any other person” from raising the Romeo and Juliet

      defense. Ind. Code § 35-42-4-9(e). The way the word “person” is used

      elsewhere in the statute leads to the conclusion that the General Assembly

      intended this to mean any person other than the perpetrator, not any person

      other than the victim. Throughout Indiana Code section 35-42-4-9, the word

      “person” is only ever used to describe the perpetrator, while the words “child”

      or “victim” are variously used to describe the victim. Had the General

      Assembly intended to exclude sex offenses against the current victim from the

      sex offenses barring the Romeo and Juliet defense, it could have very easily—

      and unambiguously—done so by using either “any other victim” or “any other

      child.” It did not. Read together with the rest of section 35-42-4-9, the most

      reasonable interpretation is that the phrase “against any other person” means

      any person other than the perpetrator.


[3]   It is also difficult to escape the conclusion that the General Assembly could not

      have intended to give a sex offender a pass on a second offense simply because

      he happened to choose the same victim. I believe that the General Assembly

      created the Romeo and Juliet defense for situations where genuine love between

      consenting partners may be found to excuse behavior that would otherwise be

      criminal. Denying the Romeo and Juliet defense to a person, like Beedy,

      having a prior adjudication for a sex offense is a recognition that those who

      make a habit of having sex with underage girls are more likely to be predators

      and less likely to motivated by true love. Beedy has been adjudicated to have


      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016   Page 11 of 12
committed child molesting, which means he had sex with a victim who was

legally unable to consent. Beedy should have learned his lesson before, that

even true love would not be an excuse to, in essence, recommit the same

unlawful act. I can think of no reason why it should matter that it was the same

child he was charged with victimizing here. Because I would conclude that the

trial court did not err in denying Beedy the Romeo and Juliet defense and

therefore affirm Beedy’s conviction, I respectfully dissent.




Court of Appeals of Indiana | Opinion 48A02-1510-CR-1703 | August 22, 2016   Page 12 of 12
