Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN E. RIPSTRA GREGORY F. ZOELLER Ripstra Law Office Attorney General of Indiana Jasper, Indiana JOSEPH Y. HO Deputy Attorney General Indianapolis, Indiana
Apr 28 2014, 9:29 am
IN THE COURT OF APPEALS OF INDIANA
BENJAMIN E. FREED, ) ) Appellant-Defendant, ) ) vs. ) No. 63A04-1309-CR-458 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE PIKE CIRCUIT COURT The Honorable Jeffrey L. Biesterveld, Judge Cause No. 63C01-1212-FA-575
April 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge Case Summary and Issues
Following a jury trial, Benjamin Freed was found guilty of attempted child
molesting, a Class A felony, and child molesting, a Class C felony. The trial court
entered judgment of conviction on attempted child molesting only and sentenced Freed to
forty-five years in the Indiana Department of Correction (“DOC”). Freed appeals, raising
two issues for our review: whether the State presented sufficient evidence to support his
conviction and whether Freed’s sentence is inappropriate. Concluding the State
presented sufficient evidence and that the sentence is not inappropriate, we affirm.
Facts and Procedural History
The facts most favorable to the judgment indicate that Freed and M.T.’s mother,
Cami, were engaged and living together along with nine-year old M.T. Cami often left
M.T. in Freed’s care, and M.T. referred to Freed as “dad.” Transcript at 132. On
December 9, 2010, Cami left the house to run errands; M.T. was in bed, and Freed was
watching television. Upon her return, she saw Freed on top of M.T. in M.T.’s bedroom.
M.T. was wearing a shirt and no underwear and was on his stomach on his bed. Freed’s
forearm was pressed across M.T.s upper back “holding him down.” Id. at 112. She did
not see either Freed’s or M.T.’s genitals or observe any genital contact. Cami yelled out,
turned on the lights, and saw Freed pull up his pants. Freed told her that M.T. had wet
the bed and he was cleaning up. Cami called her parents and the police and left the house
with M.T.
M.T. testified that Freed pulled his underwear off and threw it across the room
after M.T. repeatedly tried to pull his underwear up. Freed touched M.T.’s back, his butt,
and his “butt hole”—which M.T. defined as “the part of your butt you use to go to the 2 bathroom”—with Freed’s penis. Id. at 164, 166. M.T. said that Freed had touched his
genitals before.
Freed was found guilty of attempted child molesting, a Class A felony, and child
molesting, a Class C felony. The trial court merged the two counts and sentenced Freed
to forty-five years in DOC for attempted child molesting. Freed now appeals his
conviction and sentence.
Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
In reviewing claims for sufficiency of evidence, we do not reweigh evidence or
judge the credibility of the witnesses. Bocanegra v. State, 969 N.E.2d 1026, 1028 (Ind.
Ct. App. 2012), trans. denied. We consider only the evidence most favorable to the
verdict and the reasonable inferences that may be drawn from it. Id. We will affirm the
conviction if the probative evidence and reasonable inferences could have allowed a
reasonable fact finder to find the defendant guilty beyond a reasonable doubt. Id.
B. Evidence of Attempted Child Molesting
To prove child molesting as a Class A felony, the State must show that a person
over the age of twenty-one knowingly or intentionally performed or submitted to
intercourse or deviate sexual conduct with a child under the age of fourteen. Ind. Code §
35-42-4-3(a)(1); Louallen v. State, 778 N.E.2d 794, 798 (Ind. 2002). “Deviate sexual
conduct” is defined as “an act involving . . . a sex organ of one (1) person and the mouth
or anus of another person; or (2) the penetration of the sex organ or anus of a person by
an object.” Ind. Code § 35-31.5-2-94. A person attempts to commit a crime when, acting 3 with culpability required for commission of the crime, he takes a “substantial step”
toward commission of the crime. Ind. Code § 35-41-5-1. Mens rea can be established by
circumstantial evidence and inferred from the defendant’s conduct and the natural and
usual sequence to which such conduct reasonably points. C.L.Y. v. State, 816 N.E.2d
894, 905 (Ind. Ct. App. 2004), trans. denied.
Freed was charged with attempting to commit child molesting by deviate sexual
conduct when he “[got] into bed with [M.T.] and pull[ed] [M.T.’s] underwear down and
rubb[ed] his penis against [M.T.’s] buttocks with intent to satisfy his own sexual desires .
. . .”1 Appellant’s Appendix at 22. Freed argues there is insufficient evidence that “either
Parties’ penis, mouth, anus, or sex organ was involved in the described acts, or [t]hat any
attempt was made.” Appellant’s Brief at 4. We disagree.
The facts of this case are very similar to those in Watkins v. State, 571 N.E.2d
1262 (Ind. Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624, 625 (Ind. 1991). In
that case, we held the victim’s testimony that defendant laid on top of him while the child
was face down and nude and placed his penis around and against the child’s anal area
was sufficient evidence to support a conviction for attempting to commit child molesting
by deviate sexual conduct. Id. at 1265.
Here, Freed pulled M.T.’s underwear off, held M.T. down with his forearm, and
laid on top of him so that his penis touched M.T.’s back, butt, and “butthole.” At the
very least, the natural and usual sequence to which this conduct points is that Freed
intended to penetrate M.T.’s anus with his penis, the very definition of deviate sexual
1 The “with intent to satisfy his own sexual desires” clause of the charging information seems to be surplusage, as the statute under which Freed was charged with attempted child molesting as a Class A felony includes no such element. See Ind. Code § 35-42-4-3(a). It is, however, an element of Class C felony child molesting. See Ind. Code § 35-42-4-3(b). 4 conduct, and was interrupted by Cami’s return to the home. And it may in fact be, given
M.T.’s testimony that Freed’s penis touched “the part of your butt you use to go to the
bathroom,” that Freed did penetrate M.T. See Riehle v. State, 823 N.E.2d 287, 293 (Ind.
Ct. App. 2005) (holding victim’s testimony that defendant “put his peter in her butt,”
which she in turn explained was “the part of your body where you go poop out of” was
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN E. RIPSTRA GREGORY F. ZOELLER Ripstra Law Office Attorney General of Indiana Jasper, Indiana JOSEPH Y. HO Deputy Attorney General Indianapolis, Indiana
Apr 28 2014, 9:29 am
IN THE COURT OF APPEALS OF INDIANA
BENJAMIN E. FREED, ) ) Appellant-Defendant, ) ) vs. ) No. 63A04-1309-CR-458 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE PIKE CIRCUIT COURT The Honorable Jeffrey L. Biesterveld, Judge Cause No. 63C01-1212-FA-575
April 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge Case Summary and Issues
Following a jury trial, Benjamin Freed was found guilty of attempted child
molesting, a Class A felony, and child molesting, a Class C felony. The trial court
entered judgment of conviction on attempted child molesting only and sentenced Freed to
forty-five years in the Indiana Department of Correction (“DOC”). Freed appeals, raising
two issues for our review: whether the State presented sufficient evidence to support his
conviction and whether Freed’s sentence is inappropriate. Concluding the State
presented sufficient evidence and that the sentence is not inappropriate, we affirm.
Facts and Procedural History
The facts most favorable to the judgment indicate that Freed and M.T.’s mother,
Cami, were engaged and living together along with nine-year old M.T. Cami often left
M.T. in Freed’s care, and M.T. referred to Freed as “dad.” Transcript at 132. On
December 9, 2010, Cami left the house to run errands; M.T. was in bed, and Freed was
watching television. Upon her return, she saw Freed on top of M.T. in M.T.’s bedroom.
M.T. was wearing a shirt and no underwear and was on his stomach on his bed. Freed’s
forearm was pressed across M.T.s upper back “holding him down.” Id. at 112. She did
not see either Freed’s or M.T.’s genitals or observe any genital contact. Cami yelled out,
turned on the lights, and saw Freed pull up his pants. Freed told her that M.T. had wet
the bed and he was cleaning up. Cami called her parents and the police and left the house
with M.T.
M.T. testified that Freed pulled his underwear off and threw it across the room
after M.T. repeatedly tried to pull his underwear up. Freed touched M.T.’s back, his butt,
and his “butt hole”—which M.T. defined as “the part of your butt you use to go to the 2 bathroom”—with Freed’s penis. Id. at 164, 166. M.T. said that Freed had touched his
genitals before.
Freed was found guilty of attempted child molesting, a Class A felony, and child
molesting, a Class C felony. The trial court merged the two counts and sentenced Freed
to forty-five years in DOC for attempted child molesting. Freed now appeals his
conviction and sentence.
Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
In reviewing claims for sufficiency of evidence, we do not reweigh evidence or
judge the credibility of the witnesses. Bocanegra v. State, 969 N.E.2d 1026, 1028 (Ind.
Ct. App. 2012), trans. denied. We consider only the evidence most favorable to the
verdict and the reasonable inferences that may be drawn from it. Id. We will affirm the
conviction if the probative evidence and reasonable inferences could have allowed a
reasonable fact finder to find the defendant guilty beyond a reasonable doubt. Id.
B. Evidence of Attempted Child Molesting
To prove child molesting as a Class A felony, the State must show that a person
over the age of twenty-one knowingly or intentionally performed or submitted to
intercourse or deviate sexual conduct with a child under the age of fourteen. Ind. Code §
35-42-4-3(a)(1); Louallen v. State, 778 N.E.2d 794, 798 (Ind. 2002). “Deviate sexual
conduct” is defined as “an act involving . . . a sex organ of one (1) person and the mouth
or anus of another person; or (2) the penetration of the sex organ or anus of a person by
an object.” Ind. Code § 35-31.5-2-94. A person attempts to commit a crime when, acting 3 with culpability required for commission of the crime, he takes a “substantial step”
toward commission of the crime. Ind. Code § 35-41-5-1. Mens rea can be established by
circumstantial evidence and inferred from the defendant’s conduct and the natural and
usual sequence to which such conduct reasonably points. C.L.Y. v. State, 816 N.E.2d
894, 905 (Ind. Ct. App. 2004), trans. denied.
Freed was charged with attempting to commit child molesting by deviate sexual
conduct when he “[got] into bed with [M.T.] and pull[ed] [M.T.’s] underwear down and
rubb[ed] his penis against [M.T.’s] buttocks with intent to satisfy his own sexual desires .
. . .”1 Appellant’s Appendix at 22. Freed argues there is insufficient evidence that “either
Parties’ penis, mouth, anus, or sex organ was involved in the described acts, or [t]hat any
attempt was made.” Appellant’s Brief at 4. We disagree.
The facts of this case are very similar to those in Watkins v. State, 571 N.E.2d
1262 (Ind. Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624, 625 (Ind. 1991). In
that case, we held the victim’s testimony that defendant laid on top of him while the child
was face down and nude and placed his penis around and against the child’s anal area
was sufficient evidence to support a conviction for attempting to commit child molesting
by deviate sexual conduct. Id. at 1265.
Here, Freed pulled M.T.’s underwear off, held M.T. down with his forearm, and
laid on top of him so that his penis touched M.T.’s back, butt, and “butthole.” At the
very least, the natural and usual sequence to which this conduct points is that Freed
intended to penetrate M.T.’s anus with his penis, the very definition of deviate sexual
1 The “with intent to satisfy his own sexual desires” clause of the charging information seems to be surplusage, as the statute under which Freed was charged with attempted child molesting as a Class A felony includes no such element. See Ind. Code § 35-42-4-3(a). It is, however, an element of Class C felony child molesting. See Ind. Code § 35-42-4-3(b). 4 conduct, and was interrupted by Cami’s return to the home. And it may in fact be, given
M.T.’s testimony that Freed’s penis touched “the part of your butt you use to go to the
bathroom,” that Freed did penetrate M.T. See Riehle v. State, 823 N.E.2d 287, 293 (Ind.
Ct. App. 2005) (holding victim’s testimony that defendant “put his peter in her butt,”
which she in turn explained was “the part of your body where you go poop out of” was
sufficient to prove defendant touched his penis to the victim’s anus and support a
conviction of child molesting as a Class A felony), trans. denied. In either case, a
reasonable jury could have found that Freed had attempted to commit child molesting by
deviate sexual conduct. Freed’s argument that the State failed to prove beyond a
reasonable doubt that there was any attempt to perform deviate sexual conduct is merely
an invitation for us to reweigh the evidence, which we will not do.
II. Inappropriate Sentence
This court has the authority to revise a sentence “if, after due consideration of the
trial court’s decision, the Court finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). With
regard to the nature of the offense portion of inappropriate sentence review, the advisory
sentence is the starting point. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The character of the offender portion of
sentence review involves consideration of the aggravating and mitigating circumstances
and other general considerations. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App.
2009). Whether a sentence is inappropriate turns on “the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that come to 5 light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Ultimately,
the burden is on the defendant to persuade us that his sentence is inappropriate. Childress
v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). In assessing the nature of the offense and
character of the offender, we may look to any factors appearing in the record. Boling v.
State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013).
B. Freed’s Forty-Five Year Sentence
The sentence for a Class A felony may range from twenty to fifty years, with an
advisory sentence of thirty years. Ind. Code § 35-50-2-4. Freed contends his forty-five
year sentence is inappropriate in light of the nature of the offense and of his character.
Regarding the nature of the offense, the record reveals that M.T. had been left in
Freed’s care at the time of this incident and yet Freed consumed alcohol to excess that
night. Freed, as Cami’s live-in fiancé, was in a position of trust with and control over
M.T. Significantly, M.T. called Freed “dad.” M.T. also testified that this was not the
first or only time Freed had touched him inappropriately. Turning to Freed’s character,
he has three prior felony and two prior misdemeanor convictions. He has been placed on
probation four times but has only satisfactorily completed probation once. Other relevant
circumstances include past use of marijuana and methamphetamine and the continued use
of alcohol, including on the night of this incident. Despite being seen laying on top of
M.T. while M.T. was partially unclothed, Freed denied any wrong-doing and
demonstrated no remorse for the crime.
Although, as Freed notes, his criminal history contains no prior sexual crimes and
is thus dissimilar in nature and gravity from the instant crime, his multiple convictions,
including two convictions for non-support of a dependent, demonstrate a disregard for the 6 law and an unwillingness to accept responsibility for his actions. Even if the nature of his
offense was no more egregious than every incident of child molesting inherently is, his
character would not warrant a reduction or revision of his sentence. See Williams v.
State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (stating that the appellant must
demonstrate that his sentence is inappropriate with respect to both the nature of his
offense and the nature of his character). It is Freed’s burden to convince this court that
his sentence is inappropriate, and after considering the nature of his offense and his
character, we cannot say the forty-five year sentence imposed by the trial court is
inappropriate.
Conclusion
The State presented sufficient evidence to support Freed’s conviction, and his
forty-five year sentence is not inappropriate. We therefore affirm his conviction and
sentence.
Affirmed.
RILEY, J., and BRADFORD, J., concur.