David S. Willamowski v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 8, 2018
• Docket: 18A-CR-924
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 08 2018, 8:53 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 Vincent M. Campiti Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David S. Willamowski, November 8, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-924 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffrey L. Sanford, Appellee-Plaintiff Judge Trial Court Cause No. 71D03-1605-F4-19

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A-CR-924 | November 8, 2018 Page 1 of 6 [1] David S. Willamowski appeals his conviction for Level 4 felony child

molesting. He contends the evidence was insufficient to support the conviction.

[2] We affirm.

Facts & Procedural History

[3] On May 6, 2016, eleven-year-old E.L. spent the night at her friend T.W.’s

home. Willamowski is T.W.’s father. That night, T.W.’s mother, older brother

(D.W.), and D.W.’s friend (C.H.) were also at the home. At some point late

that night, D.W. went to bed in his room, and T.W. fell asleep in a recliner in

the living room. C.H. and E.L. remained in the living room on their individual

electronic devices. Willamowski came downstairs and joined them in the living

room. Eventually, C.H., E.L., and Willamowski were all seated on the couch.

C.H. was at one end intently focused on the game he was playing on his device.

E.L. was sitting between C.H. and Willamowski.

[4] While seated next to E.L., Willamowski began touching her leg. He rubbed his

hand on the middle of her thigh, including both her top and inner thigh area.

E.L. was wearing leggings. He then moved his hand upward until he reached

her vagina. He continued “rubbing in a circular motion” for several minutes

over her leggings. Transcript at 30. E.L. was scared and said nothing.

Willamowski then lifted E.L. onto his lap, grabbed her left hand, and placed it

on his thigh, squeezing her hand. He said, “Do you like that?” Id. at 31. He

then continued “rubbing [her] vagina”. Id. After a few more minutes, E.L.

stood up and went upstairs to put on her pajamas.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-924 | November 8, 2018 Page 2 of 6 [5] Although he had been focused on his game, C.H. saw E.L. on Willamowski’s

lap, saw him rubbing her leg near the top of her thigh, and heard him ask if she

liked that. This made C.H. feel uncomfortable. C.H. moved to the other

recliner after E.L. went upstairs to change.

[6] When E.L. returned downstairs, she asked C.H. if she could sleep on the

recliner. He agreed and moved to the couch to sleep. T.W. was still asleep on

the other recliner. Willamowski then stood up and said he was going up to bed.

After a few minutes, E.L. began to cry, which woke up T.W. and C.H. She

told T.W. about what had happened with Willamowski. T.W. was “scared and

sad and she didn’t believe it.” Id. at 32. C.H. supported E.L. during this

discussion. The three then went to sleep.

[7] On May 20, 2016, the State charged Willamowski with one count of child

molesting as a Level 4 felony. The first trial ended in a mistrial due to a

deadlocked jury. Following a second jury trial, which commenced on February

12, 2018, Willamowski was convicted as charged and sentenced to a six-year

suspended sentence.

Discussion & Decision

[8] On appeal, Willamowski challenges the sufficiency of the evidence. When we

consider a challenge to the sufficiency of the evidence, we neither reweigh the

evidence nor assess the credibility of the witnesses. Suggs v. State, 51 N.E.3d

1190, 1193 (Ind. 2016). Instead, we consider only the evidence and reasonable

inferences supporting the conviction. Id. We will affirm if there is probative

Court of Appeals of Indiana | Memorandum Decision 18A-CR-924 | November 8, 2018 Page 3 of 6 evidence from which a reasonable trier of fact could have found the defendant

guilty beyond a reasonable doubt. Id. Further, “it is well settled that the

uncorroborated testimony of the victim, even if the victim is a minor, is

sufficient to sustain a conviction for child molesting.” Carter v. State, 31 N.E.3d

17, 30 (Ind. Ct. App. 2015), trans. denied.

[9] To convict Willamowski of child molesting as charged, the State was required

to prove beyond a reasonable doubt that Willamowski: 1) performed or

submitted to fondling or touching of E.L.; 2) when E.L. was under the age of

fourteen; 3) with the intent to arouse or satisfy the sexual desires of E.L. or

Willamowski. See Ind. Code § 35-42-4-3(b). Touching alone, therefore, is not

sufficient 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. This intent element 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. Id.

[10] Willamowski challenges only the intent element and argues that no credible

evidence exists that his touching of E.L. was in an area where one could infer

beyond a reasonable doubt that he was attempting to gratify anyone’s sexual

desires. He asserts that an “equally plausible inference” is that he was just

innocently rubbing her thigh. Appellant’s Brief at 15. Willamowski claims that

E.L.’s testimony that he rubbed her vagina over her leggings is not trustworthy.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-924 | November 8, 2018 Page 4 of 6 In this regard, he notes that C.H. only saw him rubbing her thigh when he

looked up from his device, that neither C.H. nor E.L. observed Willamowski

with an erection, that he made no demands of E.L during or after the touching,

and that E.L. had changed her testimony regarding the extent of the vaginal

rubbing.

[11] We reject Willamowski’s blatant request for us to reweigh the evidence and

judge witness credibility. Defense counsel presented each of these arguments to

the jury, and the jury chose to find him guilty of child molesting. The verdict

was supported by sufficient evidence. Indeed, E.L. testified that Willamowski

began rubbing her thigh, including her inner thigh, while she sat next to him on

the couch. Eventually, he moved his hand up her thigh and toward her vagina

as he rubbed in a circular motion over her leggings. E.L., who was eleven years

old at the time, said nothing to Willamowski because she was scared. After

several minutes, he lifted her onto his lap and placed her left hand on his thigh.

He asked her, “Do you like that?” Transcript at 31. He then resumed rubbing

her vagina until E.L. stood up and went upstairs. E.L.’s testimony alone is

sufficient to support the conviction. In addition to her testimony, C.H. testified

that, despite being preoccupied with his device, he noticed E.L. on

Willamowski’s lap, saw Willamowski rubbing E.L.’s upper thigh, and heard the

question posed. Additionally, T.W. was awakened by her crying friend after

Willamowski went to bed, and E.L. told her about the touching. Based on all

of this evidence, the jury could have reasonably inferred that Willamowski

Court of Appeals of Indiana | Memorandum Decision 18A-CR-924 | November 8, 2018 Page 5 of 6 rubbed E.L.’s vagina with the intent to arouse or satisfy his or E.L.’s sexual

desires.

[12] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-924 | November 8, 2018 Page 6 of 6