In Castillo, a panel of this court grounded its holding on Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). Indeed, Richardson was the sole authority cited by the panel. The panel held:
Recently, in [Richardson], the Supreme Court held that a jury must unanimously agree regarding which crime a defendant committed. The facts in that case, however, were markedly different from the facts in the instant case. There, Richardson was charged with violating a federal law making it a crime for a person to engage “in a continuing criminal enterprise.” The federal law defined a “continuing legal enterprise as a violation of the drug laws where that violation is a part of a continuing series of violations.”
The Court determined that it was error for the trial court to instruct the jury that they must agree that Richardson committed at least three violations, but that they did not have to agree upon which three violations he committed. The Court reasoned that it would be unfair to allow juries to avoid discussion of specific factual considerations when determining whether a defendant committed a violation. To do so would increase the danger that juries may conclude “that where there is smoke there must be fire,” and to convict the defendant because he is a bad person.
Castillo, 734 N.E.2d at 304. The Castillo panel noted that the State had chosen to charge Castillo with one act of dealing in cocaine “even though there was evidence that Castillo committed two separate acts of dealing in cocaine.” Id. The panel further noted that the charge was “unspecific” and that the prosecutor told the jury in closing argument that they “had a choice in convicting Castillo of dealing in cocaine.” Id. The panel then concluded, based on the reasoning of Richardson, that “it [was] possible, given these facts, that some jurors believed that Castillo committed the earlier dealing crime . . . while other jurors believed that Castillo committed the dealing violation at his home later that same day.” Id. at 304-05. The panel concluded that the conviction should be vacated, as it was possible that “the jury’s verdict of guilty regarding the charge of dealing in cocaine was not unanimous.” Id. at 305.
In Richardson, the United States Supreme Court held that state courts have sometimes permitted jury disagreement in cases involving sexual crimes against a minor. The Court noted that these types of crimes involve “special difficulties of proving individual underlying criminal acts.” 119 S.Ct. at 1712. The Court further noted that the cases “are not federal but state, where this Court has not held that the Constitution imposes a jury-unanimity requirement.” [Footnote omitted.]
We have recognized the “special difficulties” arising in the charging of sexual offenses against a minor, noting the particular difficulty that arises when a child is subjected to sexual abuse over a period of time. See e.g., Buzzard v. State, 712 N.E.2d 547, 551 (Ind. Ct. App. 1999), trans. denied. We have held that “the time of the offense is not of the essence” in cases involving child molesting. Id. (citing Phillips v. State, 499 N.E.2d 803, 805 (Ind. Ct. App. 1986)). We have further held that the “exact date of the offense becomes important only in circumstances where the victim’s age at the time of the offense falls at or near the dividing line between classes of felonies.” Id. There is good reason for the aforementioned holdings, as our supreme court has noted that it is “difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases.” See Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). These “special difficulties” do not disappear at the time the jury determines what the State has proven; indeed, the Richardson court recognized the special difficulties of proving individual criminal acts. We hold that Castillo is not applicable in child molest cases, and appellate counsel was not ineffective for not raising the case and the issue of unanimous verdicts. [Footnote omitted.]
MATHIAS, J., concurs.
BARNES, J., concurs in result without opinion.