Gellenbeck v. State, 79A02-0903-CR-253
2nd Dist., 12-30-09, Ind.App.
Attorney: Bruce W. Graham
Holding: State presented sufficient evidence for a reasonable jury to conclude that Defendant was complaining witness’s (CW’s) custodian for purposes of child seduction statute. As used in I.C. 35-42-4-7, “custodian” means any person who resides with a child and is responsible for the child’s welfare. Here, although CW’s father still retained some authority over her, record contains ample evidence to allow jury to conclude that Defendant, CW’s uncle, was a “custodian” under Indiana’s child seduction statute. Evidence showed that Defendant and his wife had responsibility for parental tasks; they provided CW with food, shelter, and transportation; helped with school and were authorized to discipline CW if she failed to follow their rules. Moreover, CW regarded Defendant as a father figure.
Court also found no abuse of discretion in considering Defendant’s relationship with CW, the disparity in their ages, and her mental condition to be aggravating circumstances. Defendant was not merely a custodian but an uncle with whom CW was close and a person she considered to be a father figure. Nature of Defendant’s offenses seemed more heinous than “typical” cases of child seduction, thus seven-and-one-half year sentence with three and one-half years suspended to probation was not inappropriately harsh. Held, judgment affirmed.
