Altice, J.
Following a jury trial, Larry R. Beedy, Jr. was convicted of sexual misconduct with a minor, a Level 5 felony, and subsequently sentenced to six years, with three years executed in the Department of Correction, one year in community corrections, and two years suspended to probation. Beedy presents two issues for our review, one of which we find dispositive: Was Beedy erroneously precluded from asserting the affirmative defense set forth in Ind. Code § 35-42-4-9(e)1?
We reverse.
In 2013, Beedy, then seventeen years old, and A.W., then thirteen years old, were in a dating relationship and engaged in sexual activity. As a result of their conduct, on December 6, 2013, Beedy was adjudicated a delinquent for committing acts against A.W. of child molesting and child exploitation, criminal offenses if committed by an adult. Sometime between August 1 and November 6, 2014, Beedy and A.W. had sexual intercourse and conceived a child. During that timeframe, A.W. turned fifteen years old and Beedy was eighteen years old.
On January 30, 2015, the State charged Beedy with one count of sexual misconduct with a minor as a Level 5 felony. Prior to trial, Beedy filed a motion to dismiss the charge based in part on the defense found in I.C. § 35-42-4-9(e). The State in turn filed a motion in limine seeking to preclude Beedy from raising the defense by alleging that he was disqualified due to his prior juvenile adjudications for sex offenses. … After the parties presented their respective arguments, the trial court granted the State’s motion in limine and denied Beedy’s motion to dismiss. ….
A jury trial was held on September 2, 2015. … The jury ultimately found Beedy guilty of sexual misconduct with a minor, a Level 5 felony. Beedy now appeals.
As a matter of first impression, we must decide whether Beedy, who has a prior adjudication for a sex offense against the same victim, can assert the defense set forth in I.C. § 35-42-4-9(e). Subsection (e) provides:
It is a defense to a prosecution [for sexual misconduct with a minor] if all the following apply:
…
(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.
… Beedy asserts, and the State does not dispute, that each of these requirements is met in this case. The sole dispute is how the language “any other person” in subsection (e)(4) should be interpreted. With regard to subsection (e)(4), Beedy admits that he had been adjudicated a delinquent for sex offenses that involved A.W. as the victim.
Beedy argues that the “any other person” language in subsection (4) should be interpreted as referencing a person other than the victim of the pending sexual misconduct with a minor charge. In other words, a previous sex offense committed against the same victim is excluded for purposes of determining applicability of the defense. … The State’s position is that it does not stand to reason that the legislature would afford Beedy a defense for the same conduct that resulted in his juvenile adjudications just because it involved the same victim.
The trial court agreed with the State’s interpretation: …
Indeed, the trial court believed that it was “not a close call” as to how the language should be interpreted. Id. at 22.
….
Our reading of the statute leads us to conclude that the language “any other person” is unambiguous. We, however, do not interpret this language as the trial court did or as the State urges. The trial court’s interpretation that “any other person” means any person other than the defendant renders the phrase “any other person” absolutely meaningless. … To us, it is clear that when read in context, the plain language of I.C. § 35-42-4-9(e)(4) means that a prior sex offense against the same victim does not render the defense inapplicable. …
Having determined that the statutory language is unambiguous, we need not address the State’s various arguments construing the statute contrary to its plain meaning. Further, to the extent the State’s arguments are based on policy considerations, this is not the proper forum. We therefore conclude that Beedy established his entitlement to the defense found in I.C. § 35-42-4-9(e), and consequently, his conviction cannot stand. We reverse and remand this cause with instructions to vacate Beedy’s sexual misconduct with a minor conviction.
Judgment reversed and remanded with instructions.
Bailey, J., concurs.
Bradford, J., dissents with opinion.
Bradford, Judge, dissenting.
I respectfully disagree with the majority’s conclusion that Beedy is entitled to raise a “Romeo and Juliet” defense in this case because the victim in his previous adjudications for child molesting and child exploitation happens to be the same child he was charged with victimizing in this case. …
The sexual misconduct with a minor statute excludes anyone who has a prior sex offense “against any other person” from raising the Romeo and Juliet defense. Ind. Code § 35-42-4-9(e). The way the word “person” is used elsewhere in the statute leads to the conclusion that the General Assembly intended this to mean any person other than the perpetrator, not any person other than the victim. Throughout Indiana Code section 35-42-4-9, the word “person” is only ever used to describe the perpetrator, while the words “child” or “victim” are variously used to describe the victim. Had the General Assembly intended to exclude sex offenses against the current victim from the sex offenses barring the Romeo and Juliet defense, it could have very easily—and unambiguously—done so by using either “any other victim” or “any other child.” It did not. Read together with the rest of section 35-42-4-9, the most reasonable interpretation is that the phrase “against any other person” means any person other than the perpetrator.
… Because I would conclude that the trial court did not err in denying Beedy the Romeo and Juliet defense and therefore affirm Beedy’s conviction, I respectfully dissent.