Michael T. Monnier v. State of Indiana (mem. dec.) ( 2017 )

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.
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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
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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
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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.
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[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).
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[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.
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