MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jul 11 2019, 7:59 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA C.M., July 11, 2019 Court of Appeals Case No. Appellant-Respondent, 18A-JV-2821 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marilyn Moores, Judge Appellee-Petitioner. The Honorable Gary Chavers, Magistrate Trial Court Cause No. 49D09-1804-JD-408
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Respondent, C.M., appeals his adjudication that would constitute
child molesting, a Level 3 felony, Ind. Code § 35-42-4-3(a), if committed by an
adult.
[2] We affirm.
ISSUE [3] C.M. presents one issue on appeal, which we restate as follows: Whether the
State presented sufficient evidence beyond a reasonable doubt to sustain his
adjudication as a delinquent.
FACTS AND PROCEDURAL HISTORY [4] In the spring of 2017, sixteen-year-old C.M., a freshman at North Central High
School in Indianapolis, Indiana, met twelve-year-old M.K., a seventh-grade
student at Northview Middle School, through social media. Around that time,
C.M. would go to Northview Middle School for additional tutoring after school
for a couple of hours.
[5] C.M. and M.K. communicated mainly through text messages and social media
apps like “Kik.” (Transcript Vol. II, p. 102). C.M. and M.K. eventually met in
person one afternoon at Northview when C.M. was present for tutoring and
M.K. had gone to retrieve a pass from a teacher. C.M. knew that M.K. was a
student at Northview, but he did not know what grade she was in. In April of
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 2 of 8 2017, M.K. told C.M. via text message that she was thirteen years old even
though she was twelve years old.
[6] On May 18, 2017, M.K. stayed after school because she believed there was a
Girls Club meeting, but it turned out the meeting had been cancelled. On the
same day, while hanging out with her friend at the Northview gym, M.K.’s
friend grabbed M.K.’s cellphone and texted C.M. to come meet them since they
were bored. Shortly after C.M. met M.K. and her friend in the gym, M.K. left
to use the restroom but C.M. followed her to a bathroom stall. Once inside,
C.M. removed his clothes and M.K.’s clothes, and then C.M. had sexual
intercourse with M.K.
[7] Sometime after M.K. had intercourse with C.M., M.K. fell ill for several weeks.
When M.K. appeared not to be getting any better, M.K.’s mother had M.K.
take a pregnancy test, which indicated a positive result. M.K.’s mother and
step-father thereafter contacted the Indianapolis Police Department and
reported the incident. On July 19, 2017, the police obtained a statement from
M.K., and in July 2017, M.K.’s forensic interview was conducted. On January
24, 2018, M.K. gave birth to a baby boy. Following issuing of a search warrant,
a buccal swab was obtained from C.M., and it was established that C.M. was
the father of M.K.’s baby.
[8] On April 9, 2018, the State filed a Petition Alleging Delinquency, claiming that
C.M. had committed Level 3 felony child molesting, if committed by an adult.
C.M. admitted that he had sexual intercourse with M.K., but his defense was
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 3 of 8 that he reasonably believed M.K. was at least fourteen years or older at the time
of the incident. In support, C.M. testified that M.K. told him via text message
in April 2017 that she was fifteen years old, and he only found out she was
younger when “some kids” from Northview told him at a football game two
weeks after he had sexual intercourse with M.K. that M.K. was younger than
fifteen. (Tr. Vol. II, p. 97). C.M. also relied on a still image of M.K. from a
video taken in July of 2017 that made him believe that she was at least fourteen
years old. On the other hand, M.K. testified that she told C.M. through text in
April 2017 that she was thirteen years old. Neither of the alleged text messages
were able to be retrieved because C.M. and M.K. were communicating via Kik,
a mobile phone app that deletes all messages as soon as the user logs out of the
application. Also, another student at Northview, K.C., testified that M.K.
informed her at different points in time that she was thirteen years old in the
sixth grade, fourteen years old in the seventh grade, and fifteen years old in the
eighth grade. Notwithstanding K.C.’s knowledge of how old M.K. was, K.C.
stated that she never had any discussions with C.M. regarding M.K.’s age.
[9] On August 8, 2018, the juvenile court conducted a denial hearing. On August
13, 2018, the juvenile court adjudicated C.M. as a delinquent and entered the
following finding:
The [c]ourt now finds that the State did meets its burden . . . beyond a reasonable doubt and show a true finding to the one [C]ount of child molesting. The [c]ourt finds that the State did meet all elements. The defense was basically a mistake of fact. The [c]ourt’s convinced that he knew how old this child was. [M.K.] testified to what she said. Yes, there was inconsistencies, Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 4 of 8 but when I weighed the creditability [sic] of the witnesses and the fact that [C.M.] went over from a high school to a middle school and - and the incident of the child molest occurred in a middle school bathroom that the State did meet its burden. So, there will be a true finding to the [C]ount of child molest.
(Supplemental Tr. p. 4). At a disposition hearing on October 29, 2018, the
juvenile court ordered C.M. to be placed on probation with certain conditions,
with a suspended commitment to the Department of Correction.
[10] C.M. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[11] 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 the offense beyond a reasonable doubt. C.L. v.
State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). When reviewing on appeal the
sufficiency of the evidence supporting a juvenile adjudication, we neither
reweigh the evidence nor judge the credibility of the witnesses. Z.A. v. State, 13
N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider only the evidence most
favorable to the judgment and the reasonable inferences therefrom, and we will
affirm if the evidence and those inferences constitute substantial evidence of
probative value to support the judgment. C.L., 2 N.E.3d at 800.
[12] In order to make a true finding of delinquency against C.M. for Level 3 felony
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jul 11 2019, 7:59 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA C.M., July 11, 2019 Court of Appeals Case No. Appellant-Respondent, 18A-JV-2821 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marilyn Moores, Judge Appellee-Petitioner. The Honorable Gary Chavers, Magistrate Trial Court Cause No. 49D09-1804-JD-408
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Respondent, C.M., appeals his adjudication that would constitute
child molesting, a Level 3 felony, Ind. Code § 35-42-4-3(a), if committed by an
adult.
[2] We affirm.
ISSUE [3] C.M. presents one issue on appeal, which we restate as follows: Whether the
State presented sufficient evidence beyond a reasonable doubt to sustain his
adjudication as a delinquent.
FACTS AND PROCEDURAL HISTORY [4] In the spring of 2017, sixteen-year-old C.M., a freshman at North Central High
School in Indianapolis, Indiana, met twelve-year-old M.K., a seventh-grade
student at Northview Middle School, through social media. Around that time,
C.M. would go to Northview Middle School for additional tutoring after school
for a couple of hours.
[5] C.M. and M.K. communicated mainly through text messages and social media
apps like “Kik.” (Transcript Vol. II, p. 102). C.M. and M.K. eventually met in
person one afternoon at Northview when C.M. was present for tutoring and
M.K. had gone to retrieve a pass from a teacher. C.M. knew that M.K. was a
student at Northview, but he did not know what grade she was in. In April of
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 2 of 8 2017, M.K. told C.M. via text message that she was thirteen years old even
though she was twelve years old.
[6] On May 18, 2017, M.K. stayed after school because she believed there was a
Girls Club meeting, but it turned out the meeting had been cancelled. On the
same day, while hanging out with her friend at the Northview gym, M.K.’s
friend grabbed M.K.’s cellphone and texted C.M. to come meet them since they
were bored. Shortly after C.M. met M.K. and her friend in the gym, M.K. left
to use the restroom but C.M. followed her to a bathroom stall. Once inside,
C.M. removed his clothes and M.K.’s clothes, and then C.M. had sexual
intercourse with M.K.
[7] Sometime after M.K. had intercourse with C.M., M.K. fell ill for several weeks.
When M.K. appeared not to be getting any better, M.K.’s mother had M.K.
take a pregnancy test, which indicated a positive result. M.K.’s mother and
step-father thereafter contacted the Indianapolis Police Department and
reported the incident. On July 19, 2017, the police obtained a statement from
M.K., and in July 2017, M.K.’s forensic interview was conducted. On January
24, 2018, M.K. gave birth to a baby boy. Following issuing of a search warrant,
a buccal swab was obtained from C.M., and it was established that C.M. was
the father of M.K.’s baby.
[8] On April 9, 2018, the State filed a Petition Alleging Delinquency, claiming that
C.M. had committed Level 3 felony child molesting, if committed by an adult.
C.M. admitted that he had sexual intercourse with M.K., but his defense was
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 3 of 8 that he reasonably believed M.K. was at least fourteen years or older at the time
of the incident. In support, C.M. testified that M.K. told him via text message
in April 2017 that she was fifteen years old, and he only found out she was
younger when “some kids” from Northview told him at a football game two
weeks after he had sexual intercourse with M.K. that M.K. was younger than
fifteen. (Tr. Vol. II, p. 97). C.M. also relied on a still image of M.K. from a
video taken in July of 2017 that made him believe that she was at least fourteen
years old. On the other hand, M.K. testified that she told C.M. through text in
April 2017 that she was thirteen years old. Neither of the alleged text messages
were able to be retrieved because C.M. and M.K. were communicating via Kik,
a mobile phone app that deletes all messages as soon as the user logs out of the
application. Also, another student at Northview, K.C., testified that M.K.
informed her at different points in time that she was thirteen years old in the
sixth grade, fourteen years old in the seventh grade, and fifteen years old in the
eighth grade. Notwithstanding K.C.’s knowledge of how old M.K. was, K.C.
stated that she never had any discussions with C.M. regarding M.K.’s age.
[9] On August 8, 2018, the juvenile court conducted a denial hearing. On August
13, 2018, the juvenile court adjudicated C.M. as a delinquent and entered the
following finding:
The [c]ourt now finds that the State did meets its burden . . . beyond a reasonable doubt and show a true finding to the one [C]ount of child molesting. The [c]ourt finds that the State did meet all elements. The defense was basically a mistake of fact. The [c]ourt’s convinced that he knew how old this child was. [M.K.] testified to what she said. Yes, there was inconsistencies, Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 4 of 8 but when I weighed the creditability [sic] of the witnesses and the fact that [C.M.] went over from a high school to a middle school and - and the incident of the child molest occurred in a middle school bathroom that the State did meet its burden. So, there will be a true finding to the [C]ount of child molest.
(Supplemental Tr. p. 4). At a disposition hearing on October 29, 2018, the
juvenile court ordered C.M. to be placed on probation with certain conditions,
with a suspended commitment to the Department of Correction.
[10] C.M. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[11] 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 the offense beyond a reasonable doubt. C.L. v.
State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). When reviewing on appeal the
sufficiency of the evidence supporting a juvenile adjudication, we neither
reweigh the evidence nor judge the credibility of the witnesses. Z.A. v. State, 13
N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider only the evidence most
favorable to the judgment and the reasonable inferences therefrom, and we will
affirm if the evidence and those inferences constitute substantial evidence of
probative value to support the judgment. C.L., 2 N.E.3d at 800.
[12] In order to make a true finding of delinquency against C.M. for Level 3 felony
child molesting, the State was required to prove beyond a reasonable doubt that
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 5 of 8 C.M. knowingly or intentionally performed or submitted to sexual intercourse
with M.K., a child under fourteen years of age. I.C. § 35-42-4-3(a). It is
undisputed that C.M. had sexual intercourse with M.K. in a bathroom stall at
Northview Middle School. C.M.’s defense at his denial hearing was that he
reasonably believed M.K. was fourteen years of age or older.
II. Reasonable Belief Defense
[13] C.M. argues that the State failed to rebut his reasonable belief defense beyond a
reasonable doubt, and therefore, we should reverse his true finding for Level 3
felony child molesting. C.M. relies on three pieces of evidence to support his
claim that he reasonably believed M.K. to be at least fourteen years or older at
the time of the incident, namely: (1) his testimony that M.K. allegedly told him
she was fifteen years old sometime in the spring of 2017, (2) K.C.’s testimony, a
fellow schoolmate of M.K., that M.K. informed her that she was fourteen years
old while in the seventh grade, and (3) a still image of M.K. from a video taken
in July of 2017 that made him believe that M.K. was at least fourteen years old.
[14] It is a defense to child molesting that the defendant reasonably believed the
victim to be fourteen years of age or older. T.M. v. State, 804 N.E.2d 773, 774-
75 (Ind. Ct. App. 2004). “Such a defense admits all the elements of the crime
but proves circumstances that excuse the defendant from culpability.” Weaver v.
State, 845 N.E.2d 1066, 1069 (Ind. Ct. App. 2006), trans. denied. To invoke the
defense, C.M. must prove by a preponderance of the evidence that he
reasonably believed M.K. was at least fourteen years old when he molested her.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 6 of 8 See id. (noting that when a defense addresses only culpability, the defendant’s
burden is to prove the defense by a preponderance of evidence).
[15] The State relied on several pieces of evidence to rebut C.M.’s reasonable belief
defense. The first was M.K.’s unequivocal testimony that she told C.M. in
April of 2017 via a text message that she was thirteen years old even though she
was twelve years old. The State was also able to establish through the
questioning of K.C., M.K.’s fellow schoolmate at Northview, that while she
believed M.K. was fourteen years old in 2017, at no point did K.C.
communicate M.K.’s age to C.M.
[16] It is for the trier of fact to resolve conflicts in the evidence. Kilpatrick v. State,
746 N.E.2d 52, 61 (Ind. 2001). In the present case, the juvenile court chose to
believe M.K.’s testimony that she had informed C.M. in April 2017 that she
was thirteen. The sexual intercourse between C.M. and M.K. occurred in May
2017. Moreover, we find C.M.’s argument that M.K. was fifteen years old was
more believable, is an implicit request for this court to reweigh the evidence and
reassess witness credibility, which we will not do. Smart v. State, 40 N.E.3d
963, 966 (Ind. Ct. App. 2015).
[17] Based on the evidence, the juvenile court could have reasonably determined
that C.M. failed to sustain his burden of proof of establishing that he reasonably
believed M.K. to be at least fourteen years old at the time of the sexual
intercourse. Accordingly, we hold that the State presented sufficient evidence
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 7 of 8 beyond a reasonable doubt to support the juvenile court’s true finding of
delinquency.
CONCLUSION [18] C.M. failed to satisfy his burden of proving he reasonably believed M.K. was at
least fourteen years old when he had sexual intercourse with her, and therefore,
we conclude that the State produced sufficient evidence beyond a reasonable
doubt to sustain C.M.’s adjudication for committing an act that would
constitute Level 3 felony child molesting if committed by an adult.
[19] Affirmed.
[20] Bailey, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019 Page 8 of 8