Michael Riggle v. State of Indiana

Riggle was born on September 28, 1980. His daughter, G.R. was born on July

3, 2003. When G.R. was seven or eight years old, Riggle began forcing G.R. to

perform oral sex on him. This occurred on numerous occasions and continued

after they moved to a new house in 2013.

[3] In January of 2016, when G.R. was twelve years old, Riggle began penetrating

her with his penis. This occurred on several occasions in different rooms in the

house. The last time was on April 9, 2016, just prior to Riggle attending a

friend’s wedding. Shortly after that date, G.R.’s teacher, who had previously

been approached by a classmate’s mother about concerns for G.R., noticed

G.R. was crying and visibly upset after lunch. The teacher sent G.R. to talk

with the school principal, who filed a report with the Department of Child

Services (“DCS”) based on their discussion. A DCS family case manager went

to G.R.’s house, where Riggins angrily refused to allow the case manager into

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the home. After the police, who had accompanied the family case manager,

spoke with Riggins, Riggins gave permission for the family case manager to

speak with G.R. Based on disclosures made by G.R., the family case manager

took her, her sister, and her step-sisters to the DCS office for a formal interview.

During the interview with a forensic child interviewer, G.R. made a disclosure

that was forwarded to the Indianapolis Metropolitan Police Department.

[4] Based on that disclosure and the ensuing investigation which included a

forensic medical examination, the State charged Riggle with three counts of

Level 1 felony child molesting. Count III alleged Riggle, being at least twenty

one years of age, “did perform or submit to other sexual conduct” with G.R., a

child under the age of fourteen between July 3, 2015 and April 8, 2016.1 A jury

found Riggle guilty as charged and the trial court sentenced him to thirty years

on each count, with the sentences on Counts I and II to be concurrent, and the

sentence on Count III to be consecutive, for a total sentence of sixty years.

Riggle now appeals only his conviction of Count III.

Discussion and Decision



1 Count I alleged that “[o]n or about April 9, 2016, [Riggle], a person at least twenty-one (21) years of age, did perform or submit to sexual intercourse with G.R., a child under the age of fourteen years . . . .” Appellant’s Appendix, Volume 2 at 2. Count II alleged that “[o]n or about or between January 1, 2016 and April 8, 2016, [Riggle], a person at least twenty-one (21) years of age, did perform or submit to sexual intercourse with G.R., a child under the age of fourteen years . . . .” Id. Riggle does not challenge his convictions on those counts.

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I. Standard of Review

[5] Riggle contends the evidence was insufficient to prove that he knowingly or

intentionally performed or submitted to other sexual conduct with G.R.

between July 3, 2015 and April 8, 2016.

[6] In reviewing a challenge to the sufficiency of the evidence, we neither reweigh

the evidence nor judge the credibility of the witnesses; instead considering only

the evidence most favorable to the judgment and reasonable inferences

therefrom. Pugh v. State, 52 N.E.3d 955, 966 (Ind. Ct. App. 2016), trans. denied.

“We will affirm the conviction if there is probative evidence from which a

reasonable jury could have found the defendant guilty beyond a reasonable

doubt.” Dillard v. State, 755 N.E.2d 1085, 1089 (Ind. 2001). In other words, we

will only reverse for insufficiency of the evidence if “no reasonable factfinder

could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind.

2016).

II. Count III

[7] It is clear from the evidence that the “other sexual conduct” alleged in Count III

is oral sex; G.R. testified that Riggle placed his penis in her mouth. See Ind.

Code § 35-31.5-2-221.5 (defining “other sexual conduct” to mean, among other

things, an act involving a sex organ of one person and the mouth of another).

Riggle concedes such conduct is prohibited and he does not specifically argue

that the conduct did not occur. Instead, he argues the evidence is insufficient to

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establish that the “other sexual conduct” occurred within the time frame alleged

by the State.

[8] G.R. testified that before Riggle began having sexual intercourse with her, he

would put his penis in her mouth. She testified that conduct began when she

was seven or eight, and although she could not remember the last time it

occurred, she knew it happened more than once when they lived in a house on

Rybolt Street. See Transcript, Volume 2 at 238. Riggle’s wife and G.R.’s

stepmom, Dorothy, testified the family lived in the house on Rybolt Street for

almost three years, so they moved to that house in “maybe 2013.” Tr., Vol. 3 at

20. Riggle therefore argues that “the last act of oral sex described by [G.R.]

could have been as much as two (2) years-plus, before the earliest date of the

offense – July 3, 2015, charged in the Information. It is therefore just as likely

that the last act occurred before July 3, 2015, as on or after that date.” Brief of

Appellant at 12.

[9] As Riggle alleges, the date of the offense covered by Count III is not clear from

the testimony. Indiana Code section 35-34-1-2(a)(5) requires an information to

state the date of the offense with sufficient particularity to show that the offense

was committed within the applicable statute of limitations. Here, the statutory

period of limitations is not an issue – a prosecution for a Level 1 felony can

initiated at any time. Ind. Code § 35-41-4-2(c). And Indiana Code section 35

34-1-2(a)(6) requires the information to state the time of the offense as definitely

as possible if time is of the essence. However, as the State points out, time is

generally not of the essence in child molesting cases. Love v. State, 761 N.E.2d

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806, 809 (Ind. 2002). The exact date in child molesting cases is important only

in limited circumstances, such as where the victim’s age affects the class of

charge. Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). The important age

for determining classes of felonies in child molesting cases is fourteen. Compare

Ind. Code § 35-42-4-3 (defining child molesting as occurring with a child under

the age of fourteen years) and Ind. Code § 35-42-4-9 (defining sexual

misconduct with a minor as occurring with a child at least fourteen years of

age). G.R. testified that she was six or seven when the molestation began and

she was only thirteen at the time of trial. Therefore, the precise date of the

offense is not of the essence and is not a material element of the crime.

[10] The State proved that acts of “other sexual conduct” occurred when G.R. was

well under the age of fourteen. Given that time is not of the essence in child

molesting cases except in limited circumstances not applicable here, we do not

find the evidence to be insufficient due to failure to prove the acts occurred

during the specific dates alleged in the information.

The State proved by sufficient evidence that Riggle performed “other sexual

conduct” with G.R. prior to her fourteenth birthday. His conviction for Count

III of child molesting is therefore affirmed.