Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

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

Mark F. James

Anderson Agostino & Keller PC

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Matter of A.W.,

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner.

February 14, 2017

Court of Appeals Case No.

20A03-1606-JV-1333

Appeal from the Elkhart Circuit 

Court.

The Honorable Terry C. Shewmaker, 

Judge.

The Honorable Deborah Domine, 

Presiding Magistrate.

Cause No. 20C01-1604-JD-158

Darden, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 20A03-1606-JV-1333 | February 14, 2017 Page 2 of 7

Statement of the Case

[1] A.W. appeals from the trial court’s order adjudicating him a delinquent for 

committing what would be the criminal offense of child molesting1

as a Class B 

felony if committed by an adult. We affirm.

Issues

[2] A.W. presents an issue for our review, which we restate as the following two: 

I. Whether there is sufficient evidence to support his 

adjudication; and 

II. Whether the Romeo and Juliet defense set forth in Indiana 

Code section 35-42-4-9(e) (2014), which defines the 

criminal offense of sexual misconduct with a minor, 

should apply in this case.

 Facts and Procedural History

[3] In May of 2014, A.W., who was fifteen years old, had sexual intercourse with 

T.T., who at that time was a month past her thirteenth birthday. T.T. became 

pregnant and gave birth in February 2015 to a child whom A.W. later admitted 

he had fathered. A.W. was friends with T.T.’s older brother and shortly before 

the incident he had attended T.T.’s birthday party at her home. At the party, 

there were candles on T.T.’s birthday cake in the shape of numbers indicating 

that it was her thirteenth birthday. 

 

1 Ind. Code § 35-42-4-3(a) (2007).
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[4] On June 5, 2015, pursuant to Indiana Code section 31-37-10-1 (2008), the State 

filed a petition in St. Joseph County specifically alleging that A.W. was a 

delinquent child for having committed what would be Class B felony child

molesting if committed by an adult. See Ind. Code § 35-42-4-3. After a hearing 

on March 7, 2016, the probate court adjudicated A.W. a delinquent. Prior to 

disposition, the case was transferred to the juvenile division in Elkhart County. 

On May 17, 2016, the juvenile court ordered that A.W. be removed from his 

home and be placed in an Indiana Department of Correction community-based 

regional campus for treatment. A.W. now appeals. 

Discussion and Decision

I. Sufficiency of the Evidence

[5] A.W. challenges the sufficiency of the evidence supporting his adjudication. In 

order to establish that A.W. was a delinquent child, the State was required to 

establish beyond a reasonable doubt that A.W. committed the criminal offense 

of child molesting as a Class B felony. See Ind. Code § 31-37-14-1 (1997). 

Child molesting, as alleged in this case, occurs when a person with a child 

under the age of fourteen performs or submits to sexual intercourse. Ind. Code 

§ 35-42-4-3(a). A.W. argues that there was insufficient evidence of his 

culpability.

[6] On appeal from a juvenile adjudication, our review involves consideration of 

only the evidence and reasonable inferences supporting the judgment. J.R.T. v. 

State, 783 N.E.2d 300, 302 (Ind. Ct. App. 2003), trans. denied. We neither 
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reweigh the evidence nor reassess the credibility of the witnesses. Id. If we 

conclude that there is substantial evidence of probative value from which a 

reasonable trier of fact could conclude that the juvenile had committed the act 

beyond a reasonable doubt, we will affirm the adjudication. Id.

[7] There is no minimum age for the perpetrator of the offense in the child 

molestation statute. State v. J.D., 701 N.E.2d 908, 909 (Ind. Ct. App. 1998). 

Indeed, it appears that the legislature intended that the child molesting statute 

would apply to offenders regardless of their age and would apply to offenders 

who fall within the protected age group set forth by statute. Id. at 910. Further, 

juvenile delinquency statutes explicitly state that a child commits a delinquent 

act, if he or she commits an act that would be an offense if committed by an 

adult before becoming eighteen years old. Ind. Code § 31-37-1-2 (1997). 

[8] Additionally, consent is neither an element to be proved nor a defense to the 

charge of child molestation. State v. J.D., 701 N.E.2d at 912. Nonetheless, T.T. 

could not have consented to sexual intercourse because Indiana case law has 

long since held that a female child under fourteen years of age cannot give 

consent. Hanes v. State, 155 Ind. 112, 57 N.E. 704, 706 (1900). 

[9] A.W. testified that he had sexual intercourse with T.T., which resulted in her 

pregnancy and the birth of their child. T.T.’s mother testified that A.W. 

attended T.T.’s thirteenth birthday party in April 2014, and that he was friends 

with T.T.’s older brother. Further, A.W. does not dispute on appeal that he 

had sexual intercourse with T.T. Appellant’s Br. p. 7. 
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[10] Instead, A.W. argues that he was not culpable for the offense because he, too, 

was a child. “Indiana has a well-established policy to protect the welfare of 

children. The child molesting statute effectuates this policy by criminalizing the 

sexual molestation of children.” State v. J.D., 701 N.E.2d at 910 (citation 

omitted). We have previously observed that there is nothing to indicate 

legislative intent to withdraw the protection provided to children by the statute 

in order to protect the offender. Id. Indeed, there is nothing in the statute to 

indicate that our legislature intended to exclude the offending “person” who 

happens to fall within the protected age group. Id. Here, A.W. was just one 

year beyond the protected age group. However, our decision is supported by 

the juvenile statute, Indiana Code section 31-37-1-2, which acknowledges that 

the offender is not yet an adult, but has committed the offense. 

[11] There is sufficient evidence to support the juvenile court’s adjudication.

II. Romeo and Juliet Defense

[12] A.W. asks this Court to extend what has come to be known as the “Romeo and 

Juliet” defense found in Indiana Code section 35-42-4-9, sexual misconduct

with a minor, to the facts of this case, although being charged under the child 

molesting statute. However, that same defense does not appear in the child 

molesting statute. The creation or making of laws in the State of Indiana is a 

legislative function. Further, the decision to file delinquency or criminal 

charges against an offender is left to the discretion of the prosecuting attorney 

within the jurisdiction where the alleged offense occurred. Finding that we are 

without authority to implement his request, we decline his invitation.
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[13] Specifically, A.W. was charged by the State with child molesting, not sexual 

misconduct with a minor. The statute proscribing sexual misconduct with a 

minor, as it was in effect at the time of the offense, refers to the child victim 

being at least fourteen years of age but less than sixteen years of age engaging in 

sexual intercourse. Ind. Code § 35-42-4-9. 

[14] Note that the Romeo and Juliet defense as provided in subsection (e) of the 

statute, states that all of the following conditions must apply:

(1) The person is not more than four (4) years older than the 

victim.

(2) The relationship between the person and the victim was a 

dating relationship or an ongoing personal relationship. The 

term “ongoing personal relationship” does not include a family 

relationship.

(3) The crime:

(A) was not committed by a person who is at least twenty-one 

(21) years of age;

(B) was not committed by using or threatening the use of deadly 

force;

(C) was not committed while armed with a deadly weapon;

(D) did not result in serious bodily injury;

(E) was not facilitated by furnishing the victim, without the 

victim’s knowledge, with a drug (as defined in IC 16-42-19-2(1)) 

or a controlled substance (as defined in IC 35-48-1-9) or knowing 

that the victim was furnished with the drug or controlled 

substance without the victim's knowledge; and

(F) was not committed by a person having a position of authority 

or substantial influence over the victim.
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(4) The person has not committed another sex offense (as defined 

in IC 11-8-8-5.2) (including a delinquent act that would be a sex 

offense if committed by an adult) against any other person. 

[15] In summary, the sexual misconduct with a minor statute does not apply to the 

facts of this case. At the time of the offense, T.T. was only thirteen years of 

age. She testified that she and A.W. were friends but not in a dating 

relationship. Further, the statute plainly states that “it is a defense to a 

prosecution under this section” if all of the factors found therein apply. Ind. Code 

§ 35-42-4-9(e) (emphasis added). The Romeo and Juliet defense is inapplicable 

to this case. 

Conclusion

[16] In light of the foregoing, the juvenile court’s adjudication is affirmed.

[17] Affirmed. 

[18] May, J., and Mathias, J., concur.