Dennis Fecker, Jr. v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, Apr 20 2012, 9:43 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL G. SHANLEY GREGORY F. ZOELLER
PAUL J. PAGE Attorney General of Indiana
Baker Pittman & Page
Indianapolis, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DENNIS FECKER, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1109-CR-466
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
Cause No. 49G06-1004-FB-3380
April 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Dennis Fecker, Jr., appeals his conviction for Class B felony sexual misconduct
with a minor. We affirm.
Issue
The sole restated issue before us is whether there is sufficient evidence to convict
Fecker of sexual misconduct with a minor as alleged in the charging information.
Facts
G.B. was born on July 20, 1994. On or around June 12 or 14, 2009, G.B. agreed
to babysit Fecker’s live-in girlfriend’s children while he and his girlfriend went to a
recurring pool tournament that was held on Wednesday nights.1 Fecker was twenty-six
years old at the time. Fecker picked G.B. up from her house and drove her to his house.
G.B. ended up spending the night with her mother’s permission, because Fecker and his
girlfriend did not return from the pool tournament until late at night. G.B. told Fecker
that she was going to be a freshman in high school in the fall and also told him that she
was looking forward to her 15th birthday in July, which is an important birthday for girls
of Mexican heritage such as G.B.
G.B. agreed to babysit for Fecker on a second occasion in June, which G.B.
recalled to be the 24th. Fecker called G.B. about the arrangements to pick her up and also
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G.B. testified that she babysat for Fecker a total of three times, always on a Wednesday night. She
could not always remember the precise dates, however. We take judicial notice of the fact that the
Wednesdays in June 2009 fell on the 3rd, 10th, 17th, and 24th, and the first two in July were the 1st and 8th.
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told her over the phone that she was pretty and asked her to email him some pictures of
herself, which she declined to do. When Fecker came to pick G.B. up, he kissed her on
the lips and told her that he had missed her. While driving to Fecker’s house, he stopped
at a gas station to get something to drink and kissed her in the car there; he also stopped
at a second location a couple of blocks from his house and kissed her again before taking
her to his house. G.B. again spent the night at Fecker’s home.
At some point, Fecker and G.B. became friends on Myspace and communicated
with each other through it. G.B. put a false date of birth of July 20, 1993, for her
Myspace account so that she could join it.
G.B. agreed to babysit for Fecker on a third occasion, which G.B. and her mother
believed to July 8, 2009. While on the phone making arrangements to pick G.B. up,
Fecker told her that he considered her to be his girlfriend and that he was not getting
along with his live-in girlfriend. Again after coming to pick G.B. up, Fecker kissed her at
her home, at a gas station, and a couple of blocks from his house. Fecker also asked G.B.
on this third occasion whether she was virgin, and she replied that she had only ever
kissed.
Fecker and his girlfriend arrived home that night after midnight; G.B. was going to
spend the night at the house as before. Fecker’s girlfriend was extremely inebriated and
he helped her upstairs. He then returned downstairs and sat on the couch next to G.B.
Fecker lifted G.B.’s legs over his and began rubbing her legs. Finally, he placed his hand
inside of her underwear and inserted his finger into her vagina. After doing so, Fecker
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heard his girlfriend upstairs and went to check on her. When he returned, Fecker asked
G.B. if he could “finish,” and G.B. said no. Tr. p. 38. Fecker then went upstairs, and his
girlfriend drove G.B. home the next morning. Fecker told G.B. to “swear to God” that he
would not tell anyone what they had done together. Id. at 39. G.B. never babysat for
Fecker again.
Eventually, in November or December of 2009, G.B. told her mother what Fecker
had done to her. The next day, G.B. and her mother reported what had happened to
police. On May 3, 2010, the State charged Fecker with one count of Class B felony
sexual misconduct with a minor, for inserting his finger into her vagina, and two counts
of Class C felony sexual misconduct with a minor, for allegedly fondling her. The
information for all three counts alleged that the incidents occurred “On or about or
between June 10, 2009 and July 8, 2009 . . . .” App. p. 14.
At Fecker’s bench trial held on July 13, 2011, Fecker attacked the veracity of G.B.
and her mother’s testimony that the third and final time G.B. had babysat for Fecker was
July 8, 2009. Fecker obtained records of emails sent between Fecker and G.B. through
Myspace on the morning of July 8, 2009. At one point, Fecker told G.B. that “the
babysitting thing worked its selfout [sic] anyway cause [Fecker’s girlfriend] dont have to
play anywho . . . .” Ex. C. Fecker construed this message to mean that G.B. did not have
to babysit for Fecker on July 8, 2009. G.B., however, testified that she could not
remember what the message meant. In any event, both she and her mother repeatedly
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testified that the last time she babysat for Fecker was before her fifteenth birthday on July
20, 2009.
The trial court found Fecker not guilty of the two counts of Class C felony sexual
misconduct with a minor but guilty of the Class B felony charge. Fecker now appeals.
Analysis
Fecker frames his challenge to his conviction as whether there is sufficient
evidence to support his conviction. When reviewing the sufficiency of the evidence to
support a conviction, we do not reweigh the evidence or judge the credibility of the
witnesses, and respect the fact-finder’s exclusive province to weigh conflicting evidence.
Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative
evidence and reasonable inferences therefrom that support the conviction. Id. We will
affirm if the probative evidence and reasonable inferences from that evidence could have
allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.
Id.Beyond this general sufficiency argument, Fecker’s claim is that there was a fatal
variance between the charging information and the proof at trial regarding the date on
which he committed Class B felony sexual misconduct with a minor. Generally, the State
must prove all the material allegations in a charging information. Daniels v. State, 957
N.E.2d 1025, 1028 (Ind. Ct. App. 2011). “A variance is an essential difference between
the allegations of the charging document and the proof at trial.” Id. at 1030. Any such
variance is not fatal to a conviction unless the defendant was misled by the variance in
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the preparation and maintenance of his or her defense, resulting in prejudice, or if the
defendant will not be protected against double jeopardy in a future criminal proceeding
covering the same event, facts, and evidence. Id. (quoting Mitchem v. State, 685 N.E.2d
671, 676 (Ind. 1997)).
The general rule is that time is not of the essence when prosecuting sex crimes
against children. See Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992) (child
molesting); Warren v. State, 701 N.E.2d 902, 907 (Ind. Ct. App. 1998) (sexual
misconduct with a minor), trans. denied.2 The exact date of the offense “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,
587 N.E.2d at 1307.
Fecker essentially argues that despite the general rule that time is not of the
essence in child molesting or sexual misconduct with a minor cases, because the State
here did in fact list dates in the charging information, it was bound to proving the offense
of which he was convicted occurred during the explicitly listed time frame. However,
when time is not of the essence of a crime, the State is only required to prove that the
offense occurred any time within the statutory period of limitations; the State is not
required to prove the offense occurred on the precise date alleged in an information. Neff
v. State, 915 N.E.2d 1026, 1032 (Ind. Ct. App. 2009), trans. denied. In particular,
2
Fecker suggests that Krebs v. State, 816 N.E.2d 469 (Ind. Ct. App. 2004), contravenes Barger, and
argues that Barger “must be overturned to protect a Defendant’s right to a fair trial.” Appellant’s Br. p. 9.
In fact, we noted and followed Barger in Krebs. See id. at 473 n.9. Moreover, because Barger was
decided by our supreme court, it is solely within that court’s prerogative to overrule that decision.
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“[w]hen an information alleges that an offense occurred ‘on or about’ a certain date, the
State is not limited to presenting evidence of events that occurred on that particular date
when time is not an element of the offense.” Id.Here, G.B. did not turn sixteen years old, the age at which she could have legally
consented to sexual activity with Fecker, until July 20, 2010. With the alleged acts here
occurring in June and July of 2009, G.B.’s age at the time of the offense did not fall near
the dividing line between criminal liability and no criminal liability for Fecker. Thus,
time was not of the essence of this offense. Additionally, the State alleged that the act of
sexual misconduct leading to Fecker’s conviction occurred “On or about or between June
10, 2009 and July 8, 2009 . . . .” App. p. 14 (emphasis added). As such, the State was
not required to prove that the offense occurred no later than July 8, 2009, and it was free
to present evidence that the crime occurred on a date other than July 8, 2009.3
In any event, G.B. and her mother both testified that the last time she babysat for
Fecker, and on which occasion he placed his finger in her vagina, was on July 8, 2009.
Fecker’s attempt to question whether G.B. remembered the date accurately, based on an
unclear Myspace email message Fecker sent to her that G.B. was unable to recall, was a
matter for the factfinder to consider in weighing G.B. and her Mother’s testimony.
Regardless of the precise date, both G.B. and her Mother clearly testified that the last
3
Indeed, although not argued by Fecker, it seems undisputed that even if G.B. and her mother’s testimony
is accepted regarding her last going to babysit on July 8, 2009, the offense here did not occur until after
midnight, i.e., it would have occurred on July 9, 2009.
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time G.B. babysat for Fecker was before G.B.’s fifteenth birthday on July 20, 2009.
There was no variance between the charging information and the proof at trial.
Even if there was a variance, it could not be said to be fatal because Fecker cannot
demonstrate how he was prejudicially misled by the dates alleged in the charging
information. In his opening brief, Fecker only generically asserts that “Had different
dates been alleged, Fecker may have asserted an alibi defense or other defense,” without
elaboration. Appellant’s Br. p. 9. In his reply brief, Fecker contends that if the sexual
misconduct here actually took place closer to G.B.’s fifteenth birthday, he might have
been able to raise a defense that he reasonably believed she was sixteen, if the act
occurred after July 20, 2009, because of G.B.’s misrepresentation on her Myspace
account that her birthday was July 20, 1993. See Ind. Code § 35-42-4-9(c) (providing for
defense to charge of sexual misconduct with a minor if defendant reasonably believed
child was over sixteen years old). However, the State never attempted to present any
evidence that any act of sexual misconduct occurred after July 20, 2009. Even if Fecker
had presented a defense that he thought G.B. turned sixteen on July 20, 2009, all of the
State’s evidence would have been that he engaged in deviate sexual conduct with her
when he would have thought she was fifteen, which would still make him liable for Class
B felony sexual misconduct with a minor. See I.C. § 35-42-4-9(a)(1).
Fecker also contends that he could be subjected to double jeopardy if the State
were to file another charging information alleging that he committed an act of sexual
misconduct against G.B. on a date after June 8, 2009. We disagree. The test for whether
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a variance is fatal for double jeopardy purposes is whether the defendant will be protected
against double jeopardy in a future criminal proceeding covering the same event, facts,
and evidence. See Daniels, 957 N.E.2d at 1028. We are confident that if the State filed
an information such as Fecker fears, double jeopardy principles clearly would preclude
another trial and conviction based on precisely the same evidence and facts as that
presented in his first trial, namely, that Fecker digitally penetrated G.B.’s vagina for the
first and only time when she was babysitting for him for the third time sometime in July,
2009, before her fifteenth birthday.
Conclusion
There is sufficient evidence to support Fecker’s conviction and there is no fatal
variance between the charging information and proof at trial. We affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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