Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: MATTHEW J. ELKIN Kokomo, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana SCOTT BARNHART Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
WAYNE JEWELL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 34A05-0703-CR-153

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable Stephen M. Jessup, Judge Cause No. 34D02-0502-FA-49

December 13, 2007 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Wayne Jewell ("Jewell") appeals his convictions for two counts of Child Molesting as a Class A felony and one count of Sexual Misconduct with a Minor as a Class D felony. Addressing Jewell's arguments with respect to each count, we find that the Class D felony Sexual Misconduct with a Minor conviction is barred by the applicable statute of limitations and that one of the Class A felony Child Molesting convictions is not supported by sufficient evidence. We therefore reverse those convictions. With regard to the remaining Class A felony conviction, we find that the State's amendment of the charging information changing the location of the offense from the victim's house to the nearby Jewell house was an amendment of form, not substance. Further, with regard to this conviction, we treat Jewell's arguments of fundamental error for failure to cross-examine and to impeach, failure to investigate, and failure to file a notice of alibi as ineffective assistance of trial counsel arguments. Finding no ineffective assistance of counsel, we affirm this Class A felony conviction. Facts and Procedural History The record shows that in 1997, Jewell met eleven-year-old T.R. while working on a Habitat for Humanity project in Kokomo, Indiana. Jewell was then introduced to thirteen-year-old R.S., T.R.'s stepbrother. Shortly thereafter, Jewell began babysitting for the boys in his home. In approximately 2004, T.R. was in rehabilitative therapy for drug addiction when he admitted during a group therapy session that Jewell had molested him and his stepbrother when they were children. An investigation into these allegations ensued. 2

On February 14, 2005, the State charged Jewell with Count I: Child Molesting as a Class A felony (1998 incident involving T.R.); Count II: Child Molesting as a Class A felony (1999 incident involving T.R.); Count III: Child Molesting as a Class A felony (1997 incident involving R.S.); Count IV: Sexual Misconduct with a Minor as a Class D felony (1999 incident involving R.S.); and Count V: Sexual Misconduct with a Minor as a Class B felony (2000 incident involving R.S.). On December 22, 2005, the State added Count VI: Child Molesting as a Class C felony (alleging incidents between 1997 and 2000 involving both children). 1 On April 7, 2006, the State filed an amended

information for Count III, reducing the charge from Child Molesting as a Class A felony to Sexual Misconduct with a Minor as a Class B felony. Then, on April 13, 2006, the State filed an amended information for Count I, changing only the location of the incident, and a second amended information for Count III, changing the year of the incident to 1999 and the location of the incident. Jury trial began May 3, 2006. Following the State's presentation of the evidence, Jewell moved for judgment on the evidence with respect to Counts III, IV, and V, all involving R.S. The trial court granted the motion with respect to Count V but denied it for Counts III and IV. The defense rested. After over twelve hours of deliberation, the jury found Jewell guilty of Count IV: Sexual Misconduct with a Minor as a Class D felony (1999 incident involving R.S.) 2 and not guilty of Count III: Sexual Misconduct

1

The State dismissed Count VI on April 11, 2006. See Appellant's App. p. 6. Ind. Code

Download Wayne Jewell v. State of Indiana.pdf

Indiana Law