Attorney for Appellant
Paula M. Sauer
Attorneys for Appellee
Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
INDIANA SUPREME COURT
JAMES DAVID JACO
Appellant (Defendant below),
STATE OF INDIANA
Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Karen M. Love, Judge
Cause No. 32D03-9907-CF-81
ON PETITION TO TRANSFER
NOVEMBER 1 2 8 , 2002
Defendant James David Jaco seeks a declaration that in a prosecution for child
molesting committed by deviate sexual conduct, the trial court must instruct the jury
that the State is required to prove that the defendant acted with the
intent to arouse or satisfy sexual desires. The defendant in another case
we decide today, DPaffo v. State, - N.E.2d - , No. 28S04-0108-CR-377 (Ind.
Nov. 12, 2002), makes the same claim. For the reasons set forth
in DPaffo, we reject Jacos claim.
James David Jaco was convicted of child molesting, a Class A felony under
Ind. Code § 35-42-4-3(a), for removing his twelve-year-old daughters pants and licking her
vagina for a couple of minutes. Jaco was sentenced to thirty-two years
in the Department of Correction. The trial court gave the jury issued
both preliminary and final instructions regarding the necessary elements which that the State
was required to prove to convict Jaco. These preliminary instructions read:
The crime of child molesting, as charged in Count 1 of the information
is defined by statute, in relevant part, as follows: A person who,
with a child under fourteen (14) years of age, performs or submits to
deviate sexual conduct commits child molesting, a Class B felony. However, the
offense is a Class A felony if it is committed by a person
at least twenty-one (21) years of age.
To convict the defendant of child molesting as a Class A felony, as
charged, the State must prove each of the following elements beyond a reasonable
1. The defendant, James David Jaco,
2. Being at least 21 years of age,
3. Did perform deviate sexual conduct,
4. With C. J., a child under the age of fourteen (14) years.
If the State fails to prove each of these elements beyond a reasonable
doubt, you should find the defendant not guilty of child molesting as charged
in Count 1.
If the State does prove each of these elements beyond a reasonable doubt,
you should find the defendant, James David Jaco guilty of child molesting as
charged in Count 1.
Jaco did not object to either instruction during his trial. But in
this appeal, he argues that Jaco argued [in] failing to instruct the jury
regarding the mens rea element of the offense - with intent to
arouse or satisfy sexual desires of Jaco or the child the trial
court committed fundamental error. Jaco, 760 N.E.2d at 180;
In analyzing this claim, the Court of Appeals
Jaco was convicted of child molesting under Ind.
Code § 35-42-4-3(a) which relates
to a person who "performs or submits to sexual intercourse or deviate sexual
conduct." Ind. Code § 35-42-4-3(a) does not explicitly require an intent to
arouse or satisfy the sexual desires because such an intent is implicit in
the use of the terms "sexual intercourse" and "deviate sexual conduct."
For example, if an intent to arouse or satisfy the sexual desire was
not inherent in the definition of deviate sexual conduct, medical examinations, such as
a colonoscopy or gynecological examination, would arguably fit within the definition.
For this reason, On review, the Court of Appeals affirmed his conviction, however
concluded said that while it would have been preferable to delineate the mens
rea of the crime,. However, the court held that the this
error does did not rise to the level of fundamental error and affirmed
Jacos conviction and sentence. Jaco v. State, 760 N.E.2d 176, 182 (Ind.
Ct. App. 2001). The thirty-two year aggravated sentence was affirmed. Id.
On petition to transfer, the Jaco asks this court to hold that it
was determine whether or not it is fundamental error for the trial court
to give an instruction on child molesting by deviate sexual conduct which faileds
to inform the jury that the defendant must act with the intent to
arouse or gratify the sexual desires of himself or the child.
is well established that a conviction of child molesting requires the state to
prove beyond a reasonable doubt criminal intent on the part of the defendant.
Louallen v. State, No. ------ (Ind. 2002); Snider v. State, 468 N.E.2d
1037, 1039 (Ind. 1984); Newton v. State, 456 N.E.2d 736, 745 n. 1
(Ind. Ct. App. 1983).
Today in the separate opinion of DPaffo v. State, - N.E.2d - ,
No. 28S04-018-CR-377, (Ind. November 12, 2002), we held hold that the State is
not required to prove intent to arouse or satisfy sexual desires in order
to obtain a conviction of child molesting by committing deviate sexual conduct.
As such, we disapprove the view of the Court of Appeals that an
intent to arouse or satisfy the sexual desires ... is implicit
in the use of the terms sexual intercourse and deviate sexual conduct.
Therefore wWe hold instead that the trial court in the present case was
correct in not instructing did not err when it failed to advise the
jury that the State was required to prove that Jaco acted with the
intent to arouse or satisfy sexual desires. In doing so, we affirm
the holding of the Court of Appeals.
We grant transfer, thereby vacating the opinion of the Court of Appeals pursuant
to Ind. Appellate Rule 58(A) (except on those issues described in footnote 1
supra with respect to which we summarily affirm), and affirm the judgment of
the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Jaco also contends that the trial court abused its discretion by
admitting a videotaped statement from the victim pursuant to Ind.
Code § 35-37-4-6
and that his sentence is manifestly unreasonable. The Court of Appeals rejected
both these claims. Jaco, 760 N.E.2d at 184. We summarily affirm
the Court of Appeals as to these issues pursuant to Ind. Appellate Rule
In DPaffo, we specifically discuss the medical examination example quoted above that
was used by the Court of Appeals in this case and set forth
the procedure to be employed by the trial court when presented with such