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Judge dismisses charges against sex offender who served ice cream at elementary school

5-25-2013 Indiana:

The case against a registered sex offender who served ice cream to students during an informal birthday party at Hagerstown Elementary School has been dismissed.

Wayne County Superior Court II Judge Gregory A. Horn issued an order Thursday granting a motion to dismiss the case against Murvel A. Tutterrow, 51, of 12596 Indian Trail Road in Economy.

Tutterrow was faced with two counts of unlawful employment near children (a Class D felony) for serving ice cream on May 19 and May 23, 2011, during birthday parties for his niece and nephew at Hagerstown Elementary School.

Attorney E. Thomas Kemp filed a motion to dismiss the case in April, and Horn granted the dismissal with a 14-page order explaining the law as it relates to Tutterrow’s case.

Tutterrow was convicted in February 2000 of molesting a 13-year-old girl in June and July 1996 and sentenced to 10 years in prison with four suspended. He was released from the Indiana Department of Corrections on Dec. 29, 2002.

Under state law, “a sexually violent predator or an offender against children who knowingly or intentionally works for compensation or as a volunteer on school property, at a youth program center or at a public park” can be charged with unlawful employment near children.

Horn noted the statutes defining “sexually violent predator” and “offender against children” under state law did not exist until 2006, after Tutterrow had been convicted and served his time in prison and on probation.

The Indiana Constitution prohibits ex post facto laws, which impose a punishment that wasn’t available at the time an offender originally committed a crime or that impose an additional punishment.

Courts use a seven-part test to determine if an ex post facto claim is valid. Horn ruled the charges against Tutterrow violated six of those seven parts and therefore qualified for a dismissal.

Horn also noted he believed the case warranted a dismissal because Indiana law fails to define what a volunteer is when it comes to the unlawful employment near children statute.

The state will not be able to refile any charges against Tutterrow in the case as a result of the dismissal.

Since Tutterrow's appearance at Hagerstown Elementary, Nettle Creek Schools and Richmond Community Schools have adopted policies restricting access to school property by registered sex offenders except in specific instances. ..Source.. by Robert Sullivan

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