IN THE
Court of Appeals of Indiana Daniel Ryan, FILED Appellant-Defendant May 27 2026, 10:12 am
CLERK Indiana Supreme Court v. Court of Appeals and Tax Court
State of Indiana, Appellee-Plaintiff
May 27, 2026 Court of Appeals Case No. 25A-CR-2839 Appeal from the Marion Superior Court The Honorable Cynthia L. Oetjen, Judge Trial Court Cause No. 49D30-2310-F1-29966
Opinion by Judge DeBoer Judges Brown and Altice concur.
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 1 of 18 DeBoer, Judge.
Case Summary [1] Daniel Ryan appeals his convictions for two counts of Level 4 felony child
molesting, which were labeled as Counts II and VI on the last amended
charging instrument. He challenges his conviction on Count II by arguing it
was not supported by sufficient evidence. He also argues his convictions on
both counts violate substantive double jeopardy principles because his actions
“constituted a single continuous crime.” Appellant’s Brief at 19. Finding
sufficient evidence to support his conviction on Count II and that his
convictions on both counts do not violate substantive double jeopardy, we
affirm.
Facts and Procedural History [2] M.M. (born in 2010) lived at her grandmother’s house from 2017 to 2019.
Ryan, who was in a decades-long relationship with M.M.’s great aunt, lived
next door. M.M. and her mother considered Ryan a part of their family, and
M.M. and her siblings called him “Uncle Danny.” Transcript at 23.
[3] One day, when M.M. was seven or eight years old, she was outside her
grandmother’s home with Ryan and his grandson next to a bonfire. Ryan told
M.M. “to come over and give him a hug[,]” which M.M. did reluctantly
because she “was uncomfortable around men.” Id. at 71. As she hugged Ryan,
he “put his hand below [her] waist and cupped underneath [her] buttocks . . . .”
Id.
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 2 of 18 [4] On another occasion when M.M. was eight years old, she was outside her
grandmother’s home playing on a teeter totter. Ryan came up behind her and
“grabbed [her] by [her] elbow and . . . dragged [her] . . . towards [an] RV” that
was parked on the properties. Id. at 74. As he did, “he told [M.M.] to come
with him or else [she] would be in trouble.” Id. After forcing her to climb into
the RV, Ryan laid her “down on [her] back and . . . pulled [her] shirt up over
[her] stomach[.]” Id. at 74. He told M.M. to take her shirt off the rest of the
way. Once she had, he “put his hands over [her] breast and . . . on [her]
stomach[,]” and “his hands ma[de] contact with [her] breasts[.]” Id. at 75.
Ryan then “rolled [M.M.] over on [her] stomach” and used one hand to grab
her hair, burying her face into a pillow. Id. at 76. With the other, he pulled
down M.M.’s shorts. At some point, Ryan covered M.M.’s mouth with his
hand and when she tried to bite him, he “slammed his hand deeper into [her]
mouth.” Id. at 77.
[5] After removing M.M.’s shorts, Ryan took off his own, “pulled [M.M.’s] panties
to the side[,]” and began rubbing his penis between her buttocks. Id. M.M.
would later describe that “[i]t felt as if [she] was being [torn]” as Ryan’s penis
“was going in and out[,]” and she “felt like [she] was bleeding.” Id. at 78-79.
Ryan “told [her she] was tight,” which made him angry. Id. at 79. Eventually,
Ryan stopped, put his clothes back on before redressing M.M., and said “that if
[she] told anyone [what happened, she] would be in trouble.” Id. He then took
her out of the RV, “brought [her] back to the playset[,] and had [her] sit back
down where” he had found her. Id. at 79-80.
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 3 of 18 [6] M.M. did not disclose either of these incidents to anyone until May 2023, when
she was admitted to Valle Vista for mental health treatment. By then, she was
twelve years old. During the intake process, she told Valle Vista staff that she
had been molested by her uncle, but no one from the facility followed up with
her or her mother about that disclosure. Since there was no follow up, M.M.
believed that “no one really cared about it, [because] of . . . how long ago it
was.” Id. at 82.
[7] A little more than a month after M.M. was discharged from Valle Vista, she
witnessed a heated argument between her mother and Ryan’s spouse over an
unrelated matter. During that argument, her mother accused Ryan of
molesting her when she was a child. Upon learning that Ryan had also
molested her mother, M.M. felt “like a weight was being lifted off [her]
chest[,]” which emboldened her to “tell [her] mom what happened.” Id. at 84.
So after hearing what her mother had said, M.M. added, “And he done [sic] it
to me. He molested me, too.” Id. at 40. Ryan, who was present to hear
M.M.’s and her mother’s accusations, responded only by “smiling.” Id. at 27,
84.
[8] When her mother reported what M.M. said to law enforcement, the
investigating officers scheduled a forensic interview with M.M. During that
interview, M.M. said that Ryan had molested her more than once. Thereafter,
the State charged Ryan with several offenses relating to M.M.’s disclosures,
which, as last amended before trial, included two counts of Level 4 felony child
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 4 of 18 molesting in violation of Indiana Code section 35-42-4-3(b). Those counts
(Counts II and VI) were identical in substance and alleged as follows:
Between June 28, [2017 1] and June 27, 2019, DANIEL RYAN did perform or submit to fondling or touching with M.M., a child under the age of fourteen years, with the intent to arouse or satisfy the sexual desires of DANIEL RYAN and/or M.M.
Appellant’s Appendix Vol. 2 at 148-49.
[9] At a bench trial in September 2025, the State presented the testimonies of M.M.
(aged fifteen at that time), her mother, the lead investigating officer, and the
forensic interviewer who spoke with M.M. after her second disclosure. Those
witnesses testified to the facts outlined above. After the State rested its case-in-
chief, Ryan’s counsel moved to dismiss one of the child molesting counts under
Trial Rule 41(B), arguing the State had failed to prove “anything sexual about
the groping by the campfire . . . .” Tr. at 102. In response, the State argued,
[T]he first incident, the grabbing of the butt, was in fact a molest. We do believe there’s three molests mentioned today, [but] only two have been charged. We will be moving forward on Count II with the touching of the breasts, and Count VI, the touching of her anus with the defendant’s penis. So we do believe [we’ve met] our burden as to Counts II and [VI], because we’re moving
1 The charging information initially alleged that the Level 4 molestation offenses occurred between 2018 and 2019. However, after resting its case-in-chief at trial, the State moved to amend Counts II and VI by interlineation “to be from 2017 through 2019.” Tr. at 100. The trial court granted that motion over Ryan’s objection, and Ryan does not challenge that decision on appeal.
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 5 of 18 forward on Count II as regarding the breasts and Count VI regarding the anus.
Id. at 103-04. Ryan countered that M.M. had testified about “two instances[:]
one . . . by the campfire and one . . . in the RV.” Id. at 105. According to the
defense, “since there [were] two counts, one would assume that one is by the
campfire, and one is in the RV.” Id. To that, the State asserted it had intended
to charge only “the breast and the touching of the anus[,]” and though M.M.
described a third incident in her testimony, “the defendant does not get a
benefit from having molested the victim more times than the charging
information indicates.” Id. The court agreed with the State and denied Ryan’s
motion to dismiss.
[10] Ryan, his spouse, and his daughter then testified for the defense, after which
Ryan rested his case and the State presented no rebuttal evidence. After
hearing the parties’ closing arguments, the trial court found Ryan guilty of the
child molesting offenses. At a sentencing hearing in October 2025, the court
entered judgments of conviction on both counts and imposed concurrent
sentences of six years in the Department of Correction, with four years
suspended (two of which are to be served on probation). Ryan now appeals. 2
2 Along with the two Level 4 child molesting offenses, Ryan was found guilty of Level 5 felony kidnapping, Level 6 felony battery against a person less than fourteen years of age, and Class A misdemeanor intimidation. On appeal, Ryan only challenges his child molesting convictions.
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 6 of 18 Discussion and Decision
1. Sufficiency of the Evidence [11] Ryan first argues there was insufficient evidence to support his conviction on
Count II. When reviewing a challenge to the sufficiency of the evidence, we
are mindful that it is the fact-finder’s role, not ours, “to assess witness credibility
and weigh the evidence to determine whether it is sufficient to support a
conviction.” Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024) (quoting Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007)). Additionally, “[w]e consider only the
evidence most favorable to” the conviction. Id. We will affirm unless no
reasonable fact-finder could have found “the elements of the crime proven
beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270
(Ind. 2000)).
[12] To convict Ryan of Level 4 felony child molesting as alleged in Count II, the
State was required to prove that he, “with a child under fourteen . . . years of
age, perform[ed] or submit[ted] to any fondling or touching, of either the child
or [himself], with intent to arouse or to satisfy the sexual desires of either the
child or” himself. Ind. Code § 35-42-4-3(b). Ryan apparently concedes that
M.M.’s testimony was sufficient to prove he touched her breasts, but he argues
the State failed to prove he did so with “the intent to arouse or to satisfy sexual
desires.” Appellant’s Br. at 15. According to Ryan, M.M.’s testimony that he
“put his hands up by [her] breasts” and touched them was “vague” because it
“did not specifically describe an action such as rubbing, stroking, squeezing, or
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 7 of 18 caressing . . . .” Id. So, he claims, “it is difficult to tell if M.M. [was] describing
intentional or incidental contact.” Id.
[13] Ryan’s assertion that M.M.’s testimony could be construed as describing either
intentional or incidental contact is no more than a request to reweigh the
evidence, which we will not do. As noted above, it was the trial court’s role,
not ours, to determine whether the touching M.M. described was an intentional
or incidental act. Furthermore, “[t]he element of intent of child molesting may
be established by circumstantial evidence and inferred from the defendant’s
conduct and the natural and usual sequence to which such conduct usually
points.” Rose v. State, 36 N.E.3d 1055, 1062 (Ind. Ct. App. 2015). This Court
has thus held that a fact-finder can reasonably infer a defendant’s “intent to
arouse or gratify his . . . sexual desires” based solely on evidence he “touch[ed]
[a] young girl’s breast underneath her shirt.” Id. Here, the State is right that
“sexual gratification [was], to say the least, a reasonable explanation for
[Ryan’s] behavior” based on the evidence that he forced M.M. into an RV,
removed her shirt, and touched her bare breasts before “trying to penetrate her
anus with his penis[.]” Appellee’s Br. at 10. Accordingly, we affirm Ryan’s
conviction on Count II.
2. Substantive Double Jeopardy [14] Ryan next argues that his “convictions for Count[s] II and VI . . . violate
prohibitions against [substantive] Double Jeopardy.” Appellant’s Br. at 15.
Substantive double jeopardy bars the State from subjecting a defendant “to
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 8 of 18 multiple convictions or punishments for the ‘same offense’ in a single trial.”
Moyers v. State, 227 N.E.3d 33, 38 (Ind. 2026) (quoting Wadle v. State, 151
N.E.3d 227, 238-39 (Ind. 2020)). Whether convictions violate substantive
double jeopardy is a question of law that we review de novo. Wadle, 151
N.E.3d at 237.
2.1. What is the correct analytical framework?
[15] Our Supreme Court has promulgated two frameworks for analyzing substantive
double jeopardy claims. The first, articulated in Wadle and refined by A.W. v.
State, 229 N.E.3d 1060 (Ind. 2024), “addresse[s] scenarios when ‘a single
criminal act or transaction violates multiple statutes with common elements.’”
Moyers, 277 N.E.3d at 38 (quoting Powell v. State, 151 N.E.3d 256, 263 (Ind.
2020)). The second, expressed in Powell, “addresse[s] ‘multiplicity,’ which
occurs ‘when a single criminal act or transaction violates a single statute and
results in multiple injuries.’” Id. (quoting Powell, 151 N.E.3d at 263).
[16] The parties here disagree on whether Ryan’s claim should be analyzed under
Wadle or Powell. Ryan argued in his opening brief that Wadle should control—
though he didn’t explain why. The State asserted in its brief that we should
apply Powell because Ryan “was convicted twice under the same subsection of
the same statute,” that is, Indiana Code section 35-42-4-3(b). Appellee’s Br. at
10-11. And in his reply brief, Ryan suggested that both Wadle and Powell might
apply under this Court’s opinion in White v. State, 264 N.E.3d 99 (Ind. Ct. App.
2025).
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 9 of 18 [17] In White, a divided panel reasoned that section 35-42-4-3(b)’s use of the
disjunctive phrase “perform or submit to” defines two distinct statutory
offenses: (1) performing a prohibited act of fondling or touching and (2)
submitting to such an act. 264 N.E.3d at 105. In the view of the White majority,
Powell should control when a defendant is convicted “under the exact same
statutory language” (e.g., two counts of performing acts in violation of subsection
(b)), while Wadle should control when a defendant is convicted “under differing
statutory language” (i.e., one count of performing and one count of submitting to
such acts). Id. And because the charging information in White was ambiguous
as to what exactly the defendant was accused of doing, this Court “threaded
[the] needle by applying both tests.” Moyers, 277 N.E.3d at 49 (Slaughter, J.,
dissenting) (citing White, 264 N.E.3d at 102-03).
[18] Ryan is correct that the charging instrument here suffers from a similar
ambiguity as the information in White. In fact, both Count II and Count VI
merely “tracked the statutory language” without “alleg[ing] any specific,
delineating facts” or specifying exactly how Ryan violated subsection (b). 3
White, 264 N.E.3d at 102. But the State often charges crimes this way, see id. at
105 (citing examples), and we don’t agree with White that in such cases we
should undertake the burden of applying both Wadle and Powell. Instead, as the
3 The irony, of course, is that we already know from our review of the record that Ryan was convicted of twice touching M.M. during a single episode of criminal conduct—thus presenting an obvious potential multiplicity problem under Powell. This exemplifies why “substantive double jeopardy claims might be resolved more efficiently” with “[a] framework that begins with the facts rather than abstract statutory inquiries . . . .” Easter v. State, ___ N.E.3d ___, 2026 WL 1205892, at *10 n.7 (Ind. Ct. App. 2026).
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 10 of 18 Supreme Court reminded us in Moyers, our primary task in reviewing
substantive double jeopardy claims is to “carry out legislative intent as
expressed in statute[.]” 277 N.E.3d at 45.
[19] In Moyers, the Court explained how to decide which framework to apply “when
a defendant’s convictions stem from multiple violations of the same statute with
differing enhancing circumstances or penalty levels.” Id. at 36. According to
Moyers, “the applicability of Wadle or Powell does not turn on whether the
convictions arise from the same statute or from different statutes.” Id. at 42.
Instead, “the proper test depends on whether the convictions are for offenses
stemming from one base offense or two.” Id. And “[t]o illustrate the different
ways our Legislature has defined offenses,” Moyers “highlight[ed] three
categories of criminal statutes.” Id. at 40.
Category One includes statutes that define a base offense and elevated offenses as a single statutory offense, rendering Powell the proper test. . . . Category Two includes statutes that define separate base offenses and, therefore, distinct statutory offenses, meaning Wadle applies. And Category Three includes statutes that create a base offense using alternative elements. These statutes must be read carefully to discern whether the Legislature intended to define one statutory offense (meaning Powell applies) or multiple (meaning Wadle applies).
Id. (emphasis added).
[20] As suggested by Moyers, the child molesting statute, Indiana Code section 35-
42-4-3, falls into Category Three. See id. at 42. Subsections (a) and (b) both
“create . . . base offense[s] with alternative elements,” placing the statute Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 11 of 18 squarely within that elusive category. Id. But the statute also shares some
characteristics with Category Two, in that it defines more than one “distinct
child molesting . . . offense[] . . . .” Id. (citing Koziski v. State, 172 N.E.3d 338,
341-42 (Ind. Ct. App. 2021), trans. denied). And like Category One statutes,
both subsections (a) and (b) create elevated forms of their respective base
offenses. So, given the statute’s “complexity and nuance[,]” we must closely
examine the relevant statutory language to establish whether the Legislature
intended to create one or multiple base offenses under subsection (b). Id.
[21] As discussed in Section 1, section 35-42-4-3(b) makes it a crime for any person
to,
with a child under fourteen . . . years of age, perform[] or submit[] 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 . . . .
Though subsection (b) uses the disjunctive “or” five times, nothing in the
statute’s text or structure suggests the Legislature meant each of the thirty-two
possible combinations of these alternative elements to be different “base
offenses.” 4 Rather, the alternatives describe different ways to commit one
4 Each pair of alternative elements doubles the number of ways section 35-42-4-3(b) can be violated. The total number is therefore equal to 2 * 2 * 2 * 2 * 2—yielding thirty-two distinct ways a person can commit Level 4 felony child molesting.
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 12 of 18 offense: sexually motivated physical contact with a child. 5 This Court recently
reached a similar conclusion when analyzing the four alternative elements of
Level 3 felony rape under Indiana Code section 35-42-4-1(a)(1)-(4). Easter v.
State, ___ N.E.3d ___, 2026 WL 1205892, at *4 n.1 (Ind. Ct. App. 2026).
Because “the inability to consent is a ‘unifying theme’” of those elements, the
Easter majority reasoned they do not “establish[] distinct base offenses of rape.”
Id. (quoting Frye v. State, 240 N.E.3d 727, 733 (Ind. Ct. App. 2024)). We
likewise do not construe the alternative elements in section 35-42-4-3(b) as
separate base offenses of Level 4 felony child molesting. Consequently, Ryan’s
dual convictions under subsection (b) were for a single base offense, so we apply
Powell to his substantive double jeopardy claim.
2.2. Applying Powell to Ryan’s Convictions
[22] In Powell, our Supreme Court articulated a two-part test to determine whether a
criminal statute “permits the ‘fragmentation’ of a course of criminal conduct
into two or more punishable offenses.” Moyers, 277 N.E.3d at 43 (quoting
Powell, 151 N.E.3d at 264). At step one, we “determine the ‘unit of
prosecution’ for the statutory offense at issue.” White, 264 N.E.3d at 105
(quoting Powell, 151 N.E.3d at 264). If the statute does not explicitly define the
unit of prosecution, “we identify [it] by determining whether the statute is
5 This contrasts with subsection (a) of the same statute, which defines numerous distinct statutory offenses. Koziski, 172 N.E.3d at 341-42.
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 13 of 18 ‘conduct-based’ or ‘result-based.’” Moyers, 277 N.E.3d at 43 (quoting Powell,
151 N.E.3d at 265). As summarized by Moyers,
A conduct-based statute defines an offense by certain actions or behavior, and the crime is complete once the offender engages in the prohibited conduct, regardless of whether that conduct produces a specific result. Under such statutes, a single discrete incident can be the basis for only one conviction. By contrast, a result-based statute defines an offense by the defendant’s actions and the results or consequences of those actions, thus permitting multiple convictions when multiple consequences flow from a single criminal act.
Id. (internal quotation marks and citations omitted). If we can identify the unit
of prosecution, “we turn to the facts to determine how many discrete offenses
the evidence supports.” Id. But if the unit of prosecution is ambiguous, we
proceed to Powell’s second step. 151 N.E.3d at 264.
[23] At step two of Powell, we “must determine whether the facts—as presented in
the charging instrument and as adduced at trial—indicate a single offense or
whether they indicate distinguishable offenses.” Id. We do so by asking
“whether the defendant’s actions [were] ‘so compressed in terms of time, place,
singleness of purpose, and continuity of action as to constitute a single
transaction.’” Id. (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App.
2010), reh’g denied); see also Moyers, 277 N.E.3d at 43 (explaining step two of
Powell “effectively absorbs the common-law continuous crime doctrine”). “If
the defendant’s criminal acts are sufficiently distinct, then multiple convictions
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 14 of 18 may stand; but if those acts are continuous and indistinguishable, a court may
impose only a single conviction.” Powell, 151 N.E.3d at 264-65.
2.2.1. The Unit of Prosecution
[24] The first step to resolving Ryan’s double jeopardy claim is determining whether
section 35-42-4-3(b) identifies an unambiguous unit of prosecution. “A ‘unit of
prosecution,’ in simple terms, is the specific act or conduct our Legislature
intended to treat as one punishable offense under a criminal statute.” Moyers,
277 N.E.3d at 43. We agree with White that section 35-42-4-3(b) is a conduct-
based statute, and its unit of prosecution is unambiguous. White, 264 N.E.3d at
106. That is, its “‘unit of prosecution’ . . . is the conduct of ‘any fondling or
touching’ of ‘a child’ or the defendant with the requisite mens rea.” Id. This
“simply means that, for each charge under [subsection (b)], the State must
prove a discrete act; it does not mean that the State cannot bring multiple
charges against a defendant . . . for multiple, discrete acts.” Id.
[25] However, we are less confident than the White majority about what our
Supreme Court wants us to do next. After identifying subsection (b)’s
unambiguous unit of prosecution, White proceeded to “the second step of the
Powell test . . . .” Id. But our Supreme Court has twice instructed us to turn to
step two only if we find that the statute’s unit of prosecution is “ambiguous.”
See Powell, 151 N.E.3d at 264; Moyers, 277 N.E.3d at 43. Most recently, in
Moyers, the Court made clear that when, as here, the unit of prosecution is
unambiguous, the reviewing court “need[s] just Powell’s first step . . . .” 277
N.E.3d at 44. And—purportedly at that first step—we can examine the Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 15 of 18 evidence “to determine how many discrete offenses the evidence supports.” Id.
at 43.
[26] We are not sure how examining the facts at step one differs in any material
respect from the continuous crime analysis at step two. The continuous crime
doctrine focuses on “whether the defendant’s actions [were] ‘so compressed in
terms of time, place, singleness of purpose, and continuity of action as to
constitute a single transaction.’” Id. (quoting Powell, 151 N.E.3d at 264).
Though the Moyers Court said it didn’t need step two’s continuous crime
analysis, it nonetheless weighed many of the same considerations to determine
whether the defendant there “imposed only one period of [criminal]
confinement[.]” Id. at 44. Answering that question, according to the Court,
required it “to ‘define the temporal span’ of the offense” and determine whether
the victim “was continuously confined.” Id. (quoting Bartlett v. State, 711
N.E.2d 497, 500 (Ind. 1999)). As the Easter panel observed, Moyers appears to
suggest the continuous crime doctrine remains relevant even “when a statute’s
unit of prosecution is deemed unambiguously conduct-based at [s]tep [one].”
2026 WL 1205892, at *6 n.3.
[27] We follow Easter’s lead and apply the continuous crime doctrine to determine
“whether the evidence shows [Ryan] committed one or two discrete acts of”
Level 4 felony child molesting. Moyers, 277 N.E.3d at 44.
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 16 of 18 2.2.2. Ryan performed at least two discrete acts of touching.
[28] As Ryan correctly notes, Powell does not prohibit the State from obtaining
multiple convictions under section 35-42-4-3(b) so long as it proves the
defendant engaged in “multiple, discrete acts.” White, 264 N.E.3d at 106.
Ryan argues the State failed to do so here because “[t]he fondling from the
breast[s] to the buttocks was a continuous flow.” Appellant’s Br. at 8. But this
assertion belies M.M.’s testimony. She testified that after Ryan touched her
breasts, he flipped her over onto her stomach, shoved her head into a pillow,
covered her mouth with his hand, and removed her shorts. Only then did he
undress himself, pull her underwear to the side, and rub his penis on her
buttocks.
[29] While Ryan’s touching of M.M.’s breasts and buttocks occurred close in time
and during the same course of criminal conduct, they were not performed
simultaneously or as part of one continuous action. C.f. Flores v. State, 114
N.E.3d 522, 524 (Ind. Ct. App. 2018) (finding two convictions for Level 4
felony child molesting violated the continuous crime doctrine when the
defendant “put his penis between [a child’s] butt cheeks while he touched her
vagina over her underwear”) (emphasis added); Chavez v. State, 988 N.E.2d
1226, 1230 (Ind. Ct. App. 2013) (finding a defendant’s actions “constitute[ed] a
‘single transaction’” when he “inserted his tongue into [a child’s] mouth” and
“[w]hile kissing her, . . . placed his hand, over [her] clothes, on her vagina”)
(quoting Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans. denied)
(emphasis added), trans. denied. Unlike the simultaneous acts in Flores and
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 17 of 18 Chavez, Ryan’s acts of touching were sufficiently distinct in character and time
such that both of his convictions for Level 4 felony child molesting convictions
may stand under Powell.
Conclusion [30] For these reasons, we affirm Ryan’s convictions.
[31] Affirmed.
Brown, J., and Altice, J., concur.
ATTORNEYS FOR APPELLANT Talisha Griffin Ellen M. O’Connor Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana
Daniel Frohman Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 25A-CR-2839 | May 27, 2026 Page 18 of 18