MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 24 2018, 8:50 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bethany Redinbo Curtis T. Hill, Jr. Delphi, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Aaron Ell Reid, April 24, 2018
Appellant-Defendant, Court of Appeals Cause No. 20A03-1709-CR-2141 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Judge Appellee-Plaintiff. Trial Court Cause No. 20D03-1605- F4-18
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Aaron Reid (Reid), appeals his conviction and sentence
for child molesting, a Level 4 felony, Ind. Code § 35-42-4-3(b).
[2] We affirm.
ISSUES [3] Reid presents two issues on appeal, which we restate as follows:
(1) Whether the State presented sufficient evidence beyond a reasonable doubt
to support Reid’s conviction for child molesting; and
(2) Whether the Indiana Sex Offender Registration Act (INSORA) fails to
provide Reid with a mechanism to remove his designation as a sex offender and
an offender against children.
FACTS AND PROCEDURAL HISTORY [4] In February of 2016, Jovan Carson (Carson) housed Reid in her home in
Elkhart County, Indiana. On the evening of February 5, 2016, Carson’s eleven-
year-old niece, J.G., spent the night at Carson’s house. Reid was at work;
when he arrived home, Carson went to bed leaving J.G. in the company of
Reid. While J.G. was lying on the couch, Reid lifted J.G.’s shirt, touched
J.G.’s “stomach a little and then he tried to get in [J.G.’s] bra;” however, J.G.
turned away so that Reid could not continue to touch her. (Transcript Vol. II,
p. 60). At some point, Reid went to the kitchen to retrieve a beer, and then he
walked back to the couch and sat next to J.G. Reid asked J.G. if she wanted a
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 2 of 8 foot massage, and J.G. stated “no.” (Tr. Vol. II, p. 62). Despite J.G.’s
response, Reid proceeded to massage J.G.’s feet, but later J.G. pulled her feet
away. Reid thereafter placed a rubber bracelet on J.G.’s wrist and then went to
his room. J.G. fell asleep on the couch watching the television. Early the next
day, J.G. disclosed to J.C. that Reid had touched her inappropriately the night
before. J.C. contacted J.G.’s mother, who in turn, contacted the Elkhart
County Police Department.
[5] On May 24, 2016, the State filed an Information, charging Reid with child
molesting, a Level 4 felony. A two-day jury trial was conducted on April 7
through 8, 2017. At the close of the evidence, Reid was found guilty as
charged. On August 17, 2017, the trial court conducted a sentencing hearing,
and thereafter sentenced Reid to ten years in the Department of Correction with
four years suspended to probation.
[6] Reid now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Sufficiency of the Evidence
[7] Reid argues that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his Level 4 felony child molesting conviction.
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 3 of 8 such evidence.” Id. We will affirm if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Id.
[8] To convict Reid of Level 4 felony child molesting, the State was required to
prove beyond a reasonable doubt that he was “[a] person who, with a child
under fourteen (14) years of age, perform[ed] or submit[ted] to any fondling or
touching, of either the child or the older person, with intent to arouse or to
satisfy the sexual desires of either the child or the older person . . . . ” I.C. § 35-
42-4-3(b). Mere touching alone is insufficient to constitute the crime of child
molesting. Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011), trans. denied.
The State must also prove beyond a reasonable doubt that the act of touching
was accompanied by the specific intent to arouse or satisfy sexual desires. Id.
The intent element of child molesting may be established by circumstantial
evidence and may be inferred from the actor’s conduct and the natural and
usual consequence to which such conduct usually points. Id. Thus, in order to
convict Reid of Level 4 felony child molesting, the State was required to prove
not only that Reid performed or submitted to fondling or touching with J.G., a
child under the age of fourteen, but also that he did so with the intent to arouse
or satisfy the sexual desires of either himself or J.G.
[9] The State in the instant case relied on the testimony of J.G., who testified that
Reid “just lifted up my shirt and then I felt him touch my stomach a little and
then he tried to get in my bra.” (Tr. Vol. II, p. 60). J.G. testified that when that
happened, she turned away so that Reid could no longer touch her. Reid
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 4 of 8 claims that J.G.’s testimony is insufficient to support an inference that he
intended to satisfy his sexual desires, and argues that there was nothing sexual
about the touching. We disagree. In Altes v. State, 822 N.E.2d 1116, 1122 (Ind.
Ct. App. 2005), trans. denied, we held that sufficient evidence existed to support
an inference of intent to arouse or gratify sexual desire where the defendant
rubbed the victim’s upper body, first over her clothes, then under her shirt,
touching her bare skin from her shoulders to the waist. Similarly, the jury in the
case at hand could reasonably have inferred Reid’s intent to arouse or gratify
his or J.G.’s sexual desires by his act of lifting J.G.’s shirt and bra, in a bid to
touch J.G.’s breasts. Accordingly, we find that the evidence is sufficient to
support Reid’s conviction of his Level 4 felony child molesting, and that Reid’s
contrary argument amounts to an invitation for this court to reweigh the
evidence, which we will not do. See Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
II. SVP Designation and Registration Requirements
[10] INSORA currently codified at Indiana Code chapter 11-8-8, defines a person
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 24 2018, 8:50 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bethany Redinbo Curtis T. Hill, Jr. Delphi, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Aaron Ell Reid, April 24, 2018
Appellant-Defendant, Court of Appeals Cause No. 20A03-1709-CR-2141 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Judge Appellee-Plaintiff. Trial Court Cause No. 20D03-1605- F4-18
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Aaron Reid (Reid), appeals his conviction and sentence
for child molesting, a Level 4 felony, Ind. Code § 35-42-4-3(b).
[2] We affirm.
ISSUES [3] Reid presents two issues on appeal, which we restate as follows:
(1) Whether the State presented sufficient evidence beyond a reasonable doubt
to support Reid’s conviction for child molesting; and
(2) Whether the Indiana Sex Offender Registration Act (INSORA) fails to
provide Reid with a mechanism to remove his designation as a sex offender and
an offender against children.
FACTS AND PROCEDURAL HISTORY [4] In February of 2016, Jovan Carson (Carson) housed Reid in her home in
Elkhart County, Indiana. On the evening of February 5, 2016, Carson’s eleven-
year-old niece, J.G., spent the night at Carson’s house. Reid was at work;
when he arrived home, Carson went to bed leaving J.G. in the company of
Reid. While J.G. was lying on the couch, Reid lifted J.G.’s shirt, touched
J.G.’s “stomach a little and then he tried to get in [J.G.’s] bra;” however, J.G.
turned away so that Reid could not continue to touch her. (Transcript Vol. II,
p. 60). At some point, Reid went to the kitchen to retrieve a beer, and then he
walked back to the couch and sat next to J.G. Reid asked J.G. if she wanted a
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 2 of 8 foot massage, and J.G. stated “no.” (Tr. Vol. II, p. 62). Despite J.G.’s
response, Reid proceeded to massage J.G.’s feet, but later J.G. pulled her feet
away. Reid thereafter placed a rubber bracelet on J.G.’s wrist and then went to
his room. J.G. fell asleep on the couch watching the television. Early the next
day, J.G. disclosed to J.C. that Reid had touched her inappropriately the night
before. J.C. contacted J.G.’s mother, who in turn, contacted the Elkhart
County Police Department.
[5] On May 24, 2016, the State filed an Information, charging Reid with child
molesting, a Level 4 felony. A two-day jury trial was conducted on April 7
through 8, 2017. At the close of the evidence, Reid was found guilty as
charged. On August 17, 2017, the trial court conducted a sentencing hearing,
and thereafter sentenced Reid to ten years in the Department of Correction with
four years suspended to probation.
[6] Reid now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Sufficiency of the Evidence
[7] Reid argues that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his Level 4 felony child molesting conviction.
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 3 of 8 such evidence.” Id. We will affirm if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Id.
[8] To convict Reid of Level 4 felony child molesting, the State was required to
prove beyond a reasonable doubt that he was “[a] person who, with a child
under fourteen (14) years of age, perform[ed] or submit[ted] to any fondling or
touching, of either the child or the older person, with intent to arouse or to
satisfy the sexual desires of either the child or the older person . . . . ” I.C. § 35-
42-4-3(b). Mere touching alone is insufficient to constitute the crime of child
molesting. Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011), trans. denied.
The State must also prove beyond a reasonable doubt that the act of touching
was accompanied by the specific intent to arouse or satisfy sexual desires. Id.
The intent element of child molesting may be established by circumstantial
evidence and may be inferred from the actor’s conduct and the natural and
usual consequence to which such conduct usually points. Id. Thus, in order to
convict Reid of Level 4 felony child molesting, the State was required to prove
not only that Reid performed or submitted to fondling or touching with J.G., a
child under the age of fourteen, but also that he did so with the intent to arouse
or satisfy the sexual desires of either himself or J.G.
[9] The State in the instant case relied on the testimony of J.G., who testified that
Reid “just lifted up my shirt and then I felt him touch my stomach a little and
then he tried to get in my bra.” (Tr. Vol. II, p. 60). J.G. testified that when that
happened, she turned away so that Reid could no longer touch her. Reid
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 4 of 8 claims that J.G.’s testimony is insufficient to support an inference that he
intended to satisfy his sexual desires, and argues that there was nothing sexual
about the touching. We disagree. In Altes v. State, 822 N.E.2d 1116, 1122 (Ind.
Ct. App. 2005), trans. denied, we held that sufficient evidence existed to support
an inference of intent to arouse or gratify sexual desire where the defendant
rubbed the victim’s upper body, first over her clothes, then under her shirt,
touching her bare skin from her shoulders to the waist. Similarly, the jury in the
case at hand could reasonably have inferred Reid’s intent to arouse or gratify
his or J.G.’s sexual desires by his act of lifting J.G.’s shirt and bra, in a bid to
touch J.G.’s breasts. Accordingly, we find that the evidence is sufficient to
support Reid’s conviction of his Level 4 felony child molesting, and that Reid’s
contrary argument amounts to an invitation for this court to reweigh the
evidence, which we will not do. See Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
II. SVP Designation and Registration Requirements
[10] INSORA currently codified at Indiana Code chapter 11-8-8, defines a person
who has committed one of a number of qualifying offenses, including Reid’s
child molesting conviction, as a sexually violent predator (SVP) by operation of
the law if the person was released from incarceration, secure detention, or
probation for the offense after June 30, 1994. See I.C. § 11-8-8-5. Among many
other requirements, a SVP is required to register with local law enforcement
and have his or her photograph taken each year. I.C. § 11-8-8-7(b). This
registration requirement is for life. I.C. § 11-8-8-19(b). Also, Reid’s child
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 5 of 8 molesting conviction classifies him as an offender against children (OAC), and
that designation prohibits him from residing within 1,000 feet of a school, youth
program center or public park upon his release. See I.C.§ 35-42-4-11(a)(1).
[11] Reid claims that by operation of the law, he is now designated as a SVP and an
OAC, and he continues to argue that for his lifetime, he is “required to register
as a sex offender pursuant to” INSORA, and the act provides him “no
opportunity to remove his name from the registry” or to register under less
restrictive conditions. (Appellant’s Br. p. 17).
[12] We recognize that the goal of INSORA is “to give the community notification
necessary to protect its children from sex offenders.” Wallace v. State, 905
N.E.2d, 379, 383 (Ind. 2009). But registration also undoubtedly “promote[s]
community condemnation of the offender,” and subjects “offenders to ‘vigilante
justice’ which may include lost employment opportunities, housing
discrimination, threats, and violence.” Wallace, 905 N.E.2d at 380-82. Mindful
of such onerous effects, the Wallace court highlighted a deficiency of INSORA
as it then existed, observing:
In this jurisdiction the Act makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk. Indeed[,] we think it significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation.
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 6 of 8 Id. at 384. Following the Wallace case, the General Assembly responded by
amending Indiana Code Section 11-8-8-22 (governing sex offender registration)
to address a mechanism by which a SVP can petition the court for relief.
Specifically, under Indiana Code section 11-8-8-22(c), a person may petition the
trial court to remove their designation as a sex offender and removal of all
information from the Sex Offender Registry or to seek less restrictive
registration requirements.
[13] Here, we conclude that Reid’s argument is not yet ripe for our review. See Rene
ex rel. Rene v. Reed, 726 N.E.2d 808, 822 (Ind. Ct. App. 2000) (holding that
ripeness relates to the degree to which the defined issues in a case are based on
actual facts rather than abstract possibilities). Reid is currently serving his ten-
year sentence for his Level 4 felony child molesting offense. As noted, upon his
release from incarceration to probation, he will be deemed a SVP and an OAC
by operation of the law. Pursuant to Indiana Code section 11-8-8-22(c), Reid
may at a later time petition the trial court for relief. Accordingly, Reid’s
argument on this issue fails.
CONCLUSION
[14] In sum, we conclude that (1) the State presented sufficient evidence beyond a
reasonable doubt to support Reid’s conviction for child molesting; and (2)
Reid’s argument that INSORA does not provide him an opportunity to remove
his designation as a SVP is unpersuasive since he may, at a later time, petition
the trial court for relief pursuant to Indiana Code section 11-8-8-22.
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 7 of 8 [15] Affirmed.
[16] May, J. and Mathias, J. concur
Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2141 | April 24, 2018 Page 8 of 8