MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Jul 18 2018, 10:41 am
precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Ruth A. Johnson Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Lee M. Stoy Joel M. Schumm Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
C.M., July 18, 2018
Appellant-Defendant, Court of Appeals Case No. 49A02-1712-JV-2762 v. Appeal from the Marion Superior Court, Juvenile Division
State of Indiana, The Honorable Marilyn Moores, Judge Appellee-Plaintiff. The Honorable Geoffrey Gaither, Magistrate Trial Court Cause No. 49D09-1708-JD-1120
Barnes, Senior Judge.
Case Summary [1] C.M. appeals his adjudication as a juvenile delinquent for committing an act
that would be Level 3 felony attempted child molesting. We affirm. Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 1 of 7 Issues [2] C.M. raises two issues, which we restate as:
I. whether C.M.’s due process rights were violated by an error in the petition; and
II. whether the evidence is sufficient to sustain C.M.’s adjudication.
Facts [3] On July 16, 2017, Barbara Humphrey was babysitting her four-year-old great
niece, H.S. H.S. was swinging in her fenced backyard, and Humphrey went
inside to use the restroom. When she returned to the backyard, she could not
locate H.S. She saw that the side gate was open and walked through the gate.
She saw H.S. on the ground on her stomach with her arms out and her pants
and underwear pulled down. Thirteen-year-old C.M., who lived next door, was
on top of H.S. and had his pants and underwear pulled down. He was making
a thrusting motion on top of H.S. When Humphrey yelled at C.M., he jumped
away. H.S. was crying hysterically and had urinated on herself, which was
unusual for H.S. H.S. told Humphrey that C.M. “said he was gonna show me
how he could put his ‘pee pee’ in my butt.” Tr. Vol. II p. 25.
[4] The State alleged that C.M. was delinquent for committing acts that would be
Level 3 felony attempted child molesting and Level 4 felony child molesting.
The petition alleged:
Count 1 Attempted Child Molesting, Level 3 Felony
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 2 of 7 I.C. 35-42-4-3(a) and I.C. 35-41-5-1 On or about the 16th day of July, 2017, said child did attempt to knowingly or intentionally perform or submit to sexual intercourse or other sexual conduct (as defined in IC 35-3l.5-2-221.5) with a Child under fourteen (14) years of age, to wit: [H.S.], who was four (4) years of age, when [H.S.] was on her [stomach] on the ground with her pants and underwear pulled halfway down and said child was on top of [H.S.] with his pants and underwear pulled all the way down, which constituted a substantial step toward the commission of Attempted Child Molesting, Level 3 Felony.
Count 2 Child Molesting, Level 4 Felony I.C. 35-42-4-3(b) On or about the 16th day of July, 2017, said child did with [H.S.], a child under fourteen (14) years of age, to wit: 4 years of age, perform or submit to fondling or touching with intent to arouse or satisfy the sexual desires of [C.M. or H.S.].
Appellant’s App. Vol. II p. 24; Tr. Vol. II p. 5. After a fact-finding hearing, the
trial court found that the allegations were true. Due to double jeopardy
concerns, the trial court “merged” the Level 4 felony adjudication. Appellant’s
App. Vol. II p. 180. C.M. now appeals.
Analysis I. Due Process
[5] C.M. argues that his due process rights were violated because the petition
alleged a “non-existent offense” of “attempted attempted child molesting.”
Appellant’s Br. pp. 8, 10. C.M. points out the petition alleged that he
committed a “substantial step toward the commission of Attempted Child
Molesting, Level 3 Felony,” which he interprets as attempted attempted child Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 3 of 7 molesting. Appellant’s App. Vol. II p. 24. C.M. contends that this offense does
not exist.
[6] First, we note that C.M. did not object to this language in the petition. “‘The
proper method to challenge deficiencies in a charging information is to file a
motion to dismiss the information, no later than twenty days before the
omnibus date.’” Leggs v. State, 966 N.E.2d 204, 207 (Ind. Ct. App. 2012)
(quoting Miller v. State, 634 N.E.2d 57, 60 (Ind. Ct. App. 1994) (citing Ind.
Code § 35-34-1-4)). C.M. did not object or move for dismissal of the petition
and has waived the issue.
[7] To avoid waiver, C.M. must demonstrate fundamental error. See id. Although
C.M. makes no fundamental error argument, we will address the issue. “[I]t is
a due process violation for the State to convict people of crimes that do not
exist.” Wilhoite v. State, 7 N.E.3d 350, 352 (Ind. Ct. App. 2014). “For error in a
charging information to be fundamental, ‘it must mislead the defendant or fail
to give him notice of the charges against him so that he is unable to prepare a
defense to the accusation.’” Leggs, 966 N.E.2d at 207 (quoting Miller, 634
N.E.2d at 61). C.M. was adjudicated a delinquent child for committing an act
that would be Level 3 felony attempted child molesting, not attempted
attempted child molesting. The language on the petition was merely a
scrivener’s error, and there is no indication that the parties were confused about
the charge. C.M. does not argue that he was misled by the petition or he was
unable to formulate a defense. We find no fundamental error here.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 4 of 7 II. Sufficiency of the Evidence
[8] Next, C.M. argues that the evidence is insufficient to sustain his adjudication as
a delinquent child. When the State seeks to have a juvenile adjudicated a
delinquent for committing an act that would be a crime if committed by an
adult, the State must prove every element of that crime beyond a reasonable
doubt. Z.A. v. State, 13 N.E.3d 438, 439 (Ind. Ct. App. 2014). When reviewing
the sufficiency of the evidence supporting a juvenile adjudication, we neither
reweigh the evidence nor judge the credibility of the witnesses. Id. We consider
only “the evidence of probative value and the reasonable inferences that support
the determination.” Id.
[9] To prove Level 3 felony child molesting if committed by an adult, the State had
to prove that C.M. knowingly or intentionally attempted to perform or submit
to sexual intercourse or other sexual conduct with H.S., who was under
fourteen years old. C.M. argues that there was no evidence that he intended to
make “contact with H.S.’s anus.” Appellant’s Br. p. 13. He points to his young
age and argues that “age does matter in assessing intent.” Appellant’s Reply
Br. p. 7.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Jul 18 2018, 10:41 am
precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Ruth A. Johnson Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Lee M. Stoy Joel M. Schumm Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
C.M., July 18, 2018
Appellant-Defendant, Court of Appeals Case No. 49A02-1712-JV-2762 v. Appeal from the Marion Superior Court, Juvenile Division
State of Indiana, The Honorable Marilyn Moores, Judge Appellee-Plaintiff. The Honorable Geoffrey Gaither, Magistrate Trial Court Cause No. 49D09-1708-JD-1120
Barnes, Senior Judge.
Case Summary [1] C.M. appeals his adjudication as a juvenile delinquent for committing an act
that would be Level 3 felony attempted child molesting. We affirm. Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 1 of 7 Issues [2] C.M. raises two issues, which we restate as:
I. whether C.M.’s due process rights were violated by an error in the petition; and
II. whether the evidence is sufficient to sustain C.M.’s adjudication.
Facts [3] On July 16, 2017, Barbara Humphrey was babysitting her four-year-old great
niece, H.S. H.S. was swinging in her fenced backyard, and Humphrey went
inside to use the restroom. When she returned to the backyard, she could not
locate H.S. She saw that the side gate was open and walked through the gate.
She saw H.S. on the ground on her stomach with her arms out and her pants
and underwear pulled down. Thirteen-year-old C.M., who lived next door, was
on top of H.S. and had his pants and underwear pulled down. He was making
a thrusting motion on top of H.S. When Humphrey yelled at C.M., he jumped
away. H.S. was crying hysterically and had urinated on herself, which was
unusual for H.S. H.S. told Humphrey that C.M. “said he was gonna show me
how he could put his ‘pee pee’ in my butt.” Tr. Vol. II p. 25.
[4] The State alleged that C.M. was delinquent for committing acts that would be
Level 3 felony attempted child molesting and Level 4 felony child molesting.
The petition alleged:
Count 1 Attempted Child Molesting, Level 3 Felony
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 2 of 7 I.C. 35-42-4-3(a) and I.C. 35-41-5-1 On or about the 16th day of July, 2017, said child did attempt to knowingly or intentionally perform or submit to sexual intercourse or other sexual conduct (as defined in IC 35-3l.5-2-221.5) with a Child under fourteen (14) years of age, to wit: [H.S.], who was four (4) years of age, when [H.S.] was on her [stomach] on the ground with her pants and underwear pulled halfway down and said child was on top of [H.S.] with his pants and underwear pulled all the way down, which constituted a substantial step toward the commission of Attempted Child Molesting, Level 3 Felony.
Count 2 Child Molesting, Level 4 Felony I.C. 35-42-4-3(b) On or about the 16th day of July, 2017, said child did with [H.S.], a child under fourteen (14) years of age, to wit: 4 years of age, perform or submit to fondling or touching with intent to arouse or satisfy the sexual desires of [C.M. or H.S.].
Appellant’s App. Vol. II p. 24; Tr. Vol. II p. 5. After a fact-finding hearing, the
trial court found that the allegations were true. Due to double jeopardy
concerns, the trial court “merged” the Level 4 felony adjudication. Appellant’s
App. Vol. II p. 180. C.M. now appeals.
Analysis I. Due Process
[5] C.M. argues that his due process rights were violated because the petition
alleged a “non-existent offense” of “attempted attempted child molesting.”
Appellant’s Br. pp. 8, 10. C.M. points out the petition alleged that he
committed a “substantial step toward the commission of Attempted Child
Molesting, Level 3 Felony,” which he interprets as attempted attempted child Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 3 of 7 molesting. Appellant’s App. Vol. II p. 24. C.M. contends that this offense does
not exist.
[6] First, we note that C.M. did not object to this language in the petition. “‘The
proper method to challenge deficiencies in a charging information is to file a
motion to dismiss the information, no later than twenty days before the
omnibus date.’” Leggs v. State, 966 N.E.2d 204, 207 (Ind. Ct. App. 2012)
(quoting Miller v. State, 634 N.E.2d 57, 60 (Ind. Ct. App. 1994) (citing Ind.
Code § 35-34-1-4)). C.M. did not object or move for dismissal of the petition
and has waived the issue.
[7] To avoid waiver, C.M. must demonstrate fundamental error. See id. Although
C.M. makes no fundamental error argument, we will address the issue. “[I]t is
a due process violation for the State to convict people of crimes that do not
exist.” Wilhoite v. State, 7 N.E.3d 350, 352 (Ind. Ct. App. 2014). “For error in a
charging information to be fundamental, ‘it must mislead the defendant or fail
to give him notice of the charges against him so that he is unable to prepare a
defense to the accusation.’” Leggs, 966 N.E.2d at 207 (quoting Miller, 634
N.E.2d at 61). C.M. was adjudicated a delinquent child for committing an act
that would be Level 3 felony attempted child molesting, not attempted
attempted child molesting. The language on the petition was merely a
scrivener’s error, and there is no indication that the parties were confused about
the charge. C.M. does not argue that he was misled by the petition or he was
unable to formulate a defense. We find no fundamental error here.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 4 of 7 II. Sufficiency of the Evidence
[8] Next, C.M. argues that the evidence is insufficient to sustain his adjudication as
a delinquent child. When the State seeks to have a juvenile adjudicated a
delinquent for committing an act that would be a crime if committed by an
adult, the State must prove every element of that crime beyond a reasonable
doubt. Z.A. v. State, 13 N.E.3d 438, 439 (Ind. Ct. App. 2014). When reviewing
the sufficiency of the evidence supporting a juvenile adjudication, we neither
reweigh the evidence nor judge the credibility of the witnesses. Id. We consider
only “the evidence of probative value and the reasonable inferences that support
the determination.” Id.
[9] To prove Level 3 felony child molesting if committed by an adult, the State had
to prove that C.M. knowingly or intentionally attempted to perform or submit
to sexual intercourse or other sexual conduct with H.S., who was under
fourteen years old. C.M. argues that there was no evidence that he intended to
make “contact with H.S.’s anus.” Appellant’s Br. p. 13. He points to his young
age and argues that “age does matter in assessing intent.” Appellant’s Reply
Br. p. 7.
[10] We addressed a similar argument in T.G. v. State, 3 N.E.3d 19, 24-25 (Ind. Ct.
App. 2014), trans. denied. There, we noted:
This Court has held that “the Legislature intended that minors under the age of fourteen may be adjudged to be juvenile delinquents under the child molesting statute.” W.C.B. v. State, 855 N.E.2d 1057, 1061 (Ind. Ct. App. 2006) (citing State v. J.D., 701 N.E.2d 908, 910 (Ind. Ct. App. 1998)), trans. denied (1999). However, “‘in situations where there
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 5 of 7 clearly is no criminal intent, such as where very young children engage in innocent sexual play, an allegation of juvenile delinquency based upon such play would be inappropriate.’” Id. (quoting J.D., 701 N.E.2d at 909-10). When a child is accused of child molestation, evidence that the accused intentionally touched the younger child’s genitals may not be, by itself, sufficient to establish that the touching was committed with the intent to arouse or satisfy sexual desire. Although “the intent to arouse or satisfy sexual desires required to support a class C felony child molesting conviction may be inferred from evidence that the accused intentionally touched a child’s genitals,” Spann [v. State, 850 N.E.2d 411, 414 (Ind. Ct. App. 2006)](emphasis added), our standard also provides that 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 sequence to which such conduct usually points.” Bowles [v. State, 737 N.E.2d 1150, 1152 (Ind. 2000)]. Therefore, in assessing whether the evidence is sufficient to establish that T.G. touched T.A.G. with the intent to arouse or satisfy sexual desire, we will consider whether the circumstantial evidence and the actor’s conduct and the natural and usual sequence to which such conduct usually points supports the inference. T.G., 3 N.E.3d at 24-25.
[11] Here, C.M. was thirteen years old, and H.S. was four years old. C.M. is “not a
very young child,” and is significantly older than H.S. Id. at 25. Humphrey left
H.S. swinging in the fenced backyard. When she returned a couple minutes
later, she found H.S. and C.M. outside the opened gate. H.S. was on her
stomach with her pants and underwear down, and C.M. was on top of H.S.
with his pants and underwear down and was making a thrusting motion. H.S.
was crying hysterically and had urinated on herself. H.S. told Humphrey that
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 6 of 7 C.M. “said he was gonna show me how he could put his ‘pee pee’ in my butt.”1
Tr. Vol. II p. 25. Despite C.M.’s young age, the evidence supports the inference
that C.M. knowingly or intentionally attempted to perform or submit to sexual
intercourse or other sexual conduct with H.S., who was under fourteen years
old. The evidence is sufficient to sustain C.M.’s adjudication. See, e.g., T.G., 3
N.E.3d at 25 (holding that the evidence was sufficient to sustain the true
finding).
Conclusion [12] C.M.’s due process rights were not violated, and the evidence is sufficient to
sustain his adjudication. We affirm.
[13] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
1 At the fact-finding hearing, C.M. objected to this testimony by Humphrey. On appeal, C.M. mentions the objection but does not appeal the admission of the evidence.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018 Page 7 of 7