Molestation charge dropped against committed incompetent defendant

A child molestation charge must be dropped against an incompetent defendant who’s been in psychiatric hospitals longer than he could have been imprisoned had he been convicted, the Indiana Court of Appeals ruled Friday.

A concurring judge used the Johnson County case to re-emphasize his call for earlier evaluations of defendants’ mental competency.

Charles Gross was accused of molesting a young cousin more than 12 years ago in Edinburgh. Gross was charged with Class B felony child molesting and Class D felony dissemination of matter harmful to a minor.

Gross never was tried, though, because he has never been found mentally competent. He’s been confined to the Department of Mental Health and Addiction since his arrest in 2003. Johnson Superior Judge Cynthia Emkes denied Gross’ motion to dismiss the charges against him, but the appeals panel reversed in this interlocutory appeal.

“The trial court abused its discretion in finding that Gross was subject to the credit restricted felon statute and denying Gross’s motion to dismiss on that ground,” Judge Margret Robb wrote in Charles Gross v. State of Indiana, 41A01-1411-CR-467. 

“Because Gross has been confined in excess of the maximum time he could be incarcerated if found guilty of the charges against him and because the superintendent at the facility at which he is confined has made a finding that there is a substantial probability he will never be restored to competency, due process requires that the charges against him be dismissed.”

The credit-restricted felon statute was adopted years after Gross was convicted, making its application to him an ex post facto violation, the court ruled.

Judge Paul Mathias concurred in whole but wrote separately to emphasize that the dismissal of charges is unlikely to result in his release, because he “faces a lifetime of civil commitment.”

Citing his concurring opinion in Habibzadah v. State, 904 N.E.2d 367, 370 (Ind. Ct. App. 2009), Mathias again pointed to a need to determine early in cases whether defendants may have long-term or permanent mental illness.

“I continue to believe that our criminal procedure should permit a psychiatric examination of a defendant who likely suffers from serious mental illness very early after arrest to determine whether the defendant could have possibly had the requisite scienter or mens rea at the time of the crime,” he wrote.