Harry H. Rogers v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 17, 2020
• Docket: 19A-CR-1509
• 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 Jan 17 2020, 10:19 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 Stephenie K. Gookins Curtis T. Hill, Jr. Cate, Terry & Gookins LLC Attorney General of Indiana Carmel, Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Harry H. Rogers, January 17, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1509 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Michael A. Casati, Appellee-Plaintiff. Judge Trial Court Cause No. 29D01-1802-FA-1470

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 1 of 13 Case Summary [1] Harry H. Rogers was charged with and convicted of Count I–Class A felony

child molestation (“Count I”), Count II–Class A felony child molestation

(“Count II”), Count III–Class C felony child molestation (“Count III”), and

Count IV–Class D felony performing sexual conduct in the presence of a minor

(“Count IV”) for acts involving his granddaughter. He was subsequently

sentenced to an aggregate term of forty years and found to be a credit-restricted

felon. On appeal, Rogers challenges the sufficiency of the evidence to sustain

his convictions. Alternatively, he contends that the trial court erred by

sentencing him as a credit-restricted felon. Because we conclude that the

evidence is sufficient to sustain Rogers’s convictions and that Rogers was

properly found to be a credit-restricted felon, we affirm.

Facts and Procedural History [2] Kelly Barresi is the mother of K.Y., who was born February 6, 2002.

Christopher Yazel is the adoptive father of K.Y. Barresi and Yazel are also the

parents of C.Y., who was born in 2005. Rogers is Yazel’s step-father.

[3] In or about September of 2005, Barressi, Yazel, K.Y. and C.Y. moved to

Indianapolis from Michigan City. Yazel’s mother Diane and Rogers eventually

followed the family to the Indianapolis area. Diane and Rogers served as a

support system for Barressi and Yazel and frequently babysat for K.Y. and C.Y.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 2 of 13 Diane and Rogers typically babysat for the children at either their residence in

Carmel or Yazel’s apartment.

[4] On one occasion when Rogers was babysitting for then-six-year-old K.Y. at his

residence in Carmel, Rogers inappropriately touched K.Y. by rubbing “[i]n

between” her labia for approximately ten to fifteen minutes. Tr. Vol. II p. 246.

Rogers instructed K.Y. not to tell anyone. K.Y. indicated that similar acts

occurred “more than once” at Rogers’s home “[w]henever [Rogers] got the

chance to babysit [K.Y. and C.Y.] alone.” Tr. Vol. II p. 247. Similar acts also

occurred when Rogers babysat for K.Y. at Yazel’s apartment when K.Y. was

seven or eight years old.

[5] On another occasion when K.Y. was six or seven years old, K.Y. went with

Rogers from his residence in Carmel to a nearby Dairy Queen. While in the

Dairy Queen parking lot, Rogers started tickling and rubbing K.Y.’s vagina

with his hand over her clothes. Rogers again instructed K.Y. “[d]on’t tell.” Tr.

Vol. III p. 3.

[6] On yet another occasion when Rogers was babysitting for K.Y., Rogers took

K.Y. into an upstairs bedroom of Yazel’s apartment and “touched [her] vagina

with his penis.” Tr. Vol. III p. 5. Rogers took K.Y.’s “pants off and pulled

[her] under down and started rubbing [her] with his hand again and put his

penis … [i]n between” her labia. Tr. Vol. III p. 5. Rogers’s conduct lasted for

five or ten minutes and made K.Y. feel “[c]onfused and uncomfortable.” Tr.

Vol. III p. 5. K.Y. was seven or eight years old during this occurrence.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 3 of 13 Following one of the instances of touching in Yazel’s apartment, Rogers

collected lotion from an upstairs bedroom and rubbed lotion on his penis while

in K.Y.’s presence.

[7] When K.Y. was about eight or nine years old, she began doing “everything in

[her] power to avoid” Rogers. Tr. Vol. III p. 3. As she grew older, K.Y.

developed physical and verbal “tics” and, when she was twelve years old, began

engaging in self-harming behaviors. Tr. Vol. II p. 222. On February 12, 2018,

K.Y. cut her wrists after an argument with Barresi. Barresi took K.Y. to the

hospital where K.Y. first disclosed Rogers’s prior inappropriate actions. K.Y.

was hesitant to disclose Rogers’s actions because she thought nothing could be

done about it.1 She also “wasn’t sure if [she] would be believed” because

Rogers “has been made out to seem like a person who loves his family and God

and is hard working, and [K.Y.] didn’t know if they would believe a troubled

teenager who had this happen so long ago.” Tr. Vol. III pp. 9, 10. Following

disclosure, K.Y. has seemed happier, smiled more, been more social and

affectionate, and has experienced an improved relationship with Yazel. K.Y.

“seemed to just have this weight lifted off of her shoulders, that she had let go

of this secret and was instantly different and better.” Tr. Vol. II p. 223.

[8] On February 23, 2018, the State charged Rogers with Counts I through IV. The

matter proceeded to a three-day jury trial. During trial, K.Y. detailed numerous

1 K.Y. falsely believed that nothing could be done after learning about statutes of limitation on “Law & Order: Special Victims Unit.” Tr. Vol. III p. 11.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 4 of 13 instances of molestation by Rogers. On May 15, 2019, the jury found Rogers

guilty as charged. The trial court subsequently sentenced Rogers to terms of

forty years on each of Counts I and II, six years on Count III, and three years

on Count IV, all of which were ordered to be served concurrently for an

aggregate forty-year sentence. The trial court also found Rogers to be a credit-

restricted felon.

Discussion and Decision [9] On appeal, Rogers contends that the evidence is insufficient to sustain his

convictions. Alternatively, he contends that the trial court erred in sentencing

him as a credit-restricted felon.

I. Sufficiency of the Evidence [10] “Our standard of review for challenges to the sufficiency of the evidence is well-

settled.” Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015).

We do not reweigh evidence or reassess the credibility of witnesses when reviewing a conviction for the sufficiency of the evidence. We view all evidence and reasonable inferences drawn therefrom in a light most favorable to the conviction, and will affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.

Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (internal citation and quotation

omitted). This is because the factfinder, and not the appellate court, “is obliged

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 5 of 13 to determine not only whom to believe, but also what portions of conflicting

testimony to believe, and is not required to believe a witness’s testimony[.]”

Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (internal quotation and

brackets omitted). Further, “the uncorroborated testimony of a child victim is

sufficient to support a conviction for child molesting.” Stewart v. State, 768

N.E.2d 433, 436 (Ind. 2002).

A. Counts I & II [11] Rogers challenges his convictions under Counts I and II, arguing that the

evidence is insufficient to prove that he committed two counts of Class A felony

child molesting. In order to prove that Rogers committed these offenses, the

State was required to prove that Rogers, on two separate occasions, being at

least twenty-one years of age, performed or submitted to sexual intercourse or

sexual deviate conduct with a child under fourteen years of age. Ind. Code §

35-42-4-3(a).

[12] The State alleged in Count I that between February 6, 2008 and May 31, 2012,

“Rogers, a person of at least twenty-one (21) years of age, did perform deviate

sexual conduct with K.Y., a child under the age of fourteen years.” Appellant’s

App. Vol. II p. 19. The State alleged in Count II that between February 6, 2008

and May 31, 2012, “Rogers, a person of at least twenty-one (21) years of age,

did perform sexual intercourse or deviate sexual conduct with K.Y., a child

under the age of fourteen years … such conduct involving the penis of [Rogers]

and the vagina of K.Y.” Appellant’s App. Vol. II p. 19. Penetration “may be

proven by evidence of any penetration of the female sex organ, including Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 6 of 13 external genitalia such as the vulva or labia.” Adcock v. State, 22 N.E.3d 720,

728 (Ind. Ct. App. 2014) (citing Short v. State, 564 N.E.2d 553, 559 (Ind. Ct.

App. 1991)). Deviate sexual conduct includes the penetration of the sex organ

with a finger. See Simmons v. State, 746 N.E.2d 81, 86 (Ind. Ct. App. 2001),

trans. denied.

[13] Rogers often babysat for K.Y. at his residence in Carmel. On one such

occasion when K.Y. was six years old, Rogers, while alone in a room with

K.Y., removed K.Y.’s jeans, “pulled [her] underwear down,” and “started

touching” her vagina. Tr. Vol. II p. 245. While doing so, Rogers rubbed K.Y.

“[i]n between” the labia for approximately ten to fifteen minutes. Tr. Vol. II p.

246. Rogers told K.Y. “[s]omething along the lines of don’t tell anyone,”

making her feel “[w]eird” and “[u]ncomfortable.” Tr. Vol. II p. 246. K.Y.

indicated that similar acts occurred “more than once” at Rogers’s home

“[w]henever [Rogers] got the chance to babysit [K.Y. and C.Y.] alone.” Tr.

Vol. II p. 247.

[14] K.Y. testified to another instance of molestation that occurred when she was

seven or eight years old in Yazel’s two-story townhome apartment. On this

occasion, Rogers and her grandmother were babysitting for her and C.Y. when

Rogers took her upstairs into her father’s bedroom alone. Rogers “asked [C.Y.]

if [her] jeans were uncomfortable,” removed her jeans and underwear, “laid

[her] down on the bed,” and started licking her vagina. Tr. Vol. II p. 249.

Rogers also rubbed C.Y.’s vagina “[i]n between” her labia with his hand. Tr.

Vol. II p. 250. When C.Y. attempted to yell for her grandmother, Rogers “put

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 7 of 13 his hand over [her] mouth.” Tr. Vol. II p. 250. This encounter lasted

approximately five or ten minutes and made K.Y. feel “[w]eird and

uncomfortable.” Tr. Vol. II p. 250. As with prior instances of molestation,

Rogers again instructed K.Y. “[d]on’t tell anybody.” Tr. Vol. II p. 250.

Specifically, he told her “this is what all grandfathers do and that he did it to all

[her] cousins and that it was okay.” Tr. Vol. III p. 2.

[15] K.Y. further testified that on another instance in Yazel’s apartment when she

was seven or eight, Rogers “touched [her] vagina with his penis.” Tr. Vol. III

p. 5. On this occasion, Rogers took K.Y.’s pants off and pulled her underwear

down. He then “started rubbing [her] with his hand again and put his penis …

[i]n between” her labia. Tr. Vol. III p. 5. Rogers’s conduct lasted for five or ten

minutes and made K.Y. feel “[c]onfused and uncomfortable.” Tr. Vol. III p. 5.

[16] It is uncontested that Rogers, who was born on December 19, 1955, was well

over the age of twenty-one when he committed all of the above-described acts.

K.Y. detailed multiple occurrences of molestation, some involving sexual

deviate conduct and at least one involving sexual intercourse. K.Y.’s testimony

is sufficient to prove that Rogers committed Class A felony child molesting as

charged in Counts I and II.2

2 We note that in challenging the sufficiency of the evidence to sustain his conviction under Count II, Rogers argues that the State failed to prove proper venue. However, Rogers has waived his challenge relating to venue because he did not raise any objection or challenge to venue at trial. See Floyd v. State, 503 N.E.2d 390, 393 (Ind. 1987) (“Many times this Court has held that a defendant waives error relating to venue when he fails to make an objection at the appropriate time in the trial court.”); see also Martin v. State, 247 Ind. 592, 594

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 8 of 13 B. Count III [17] Rogers challenges his conviction under Count III, arguing that the evidence is

insufficient to prove that he committed Class C felony child molesting. In order

to prove that Rogers committed Class C felony child molesting, the State was

required to prove that Rogers, with a child under fourteen years of age,

performed or submitted to any fondling or touching of either himself or the

child with the intent to arouse or to satisfy the sexual desires of either himself or

the child. Ind. Code § 35-42-4-3(b).

[18] The State alleged that between February 6, 2008 and May 31, 2012, Rogers

performed “fondling or touching with K.Y., a child under the age of fourteen

years … with the intent to arouse or satisfy the sexual desires of the child or

defendant.” Appellant’s App. Vol. II pp. 19–20. K.Y. testified that when she

was six or seven years old, she went with Rogers from his residence in Carmel

to a nearby Dairy Queen. While in the Dairy Queen parking lot, Rogers started

tickling and rubbing K.Y.’s vagina with his hand over her clothes. Rogers

instructed K.Y. “[d]on’t tell.” Tr. Vol. III p. 3.

[19] In challenging his conviction, Rogers argues that the evidence is insufficient to

prove that he acted with the intent to arouse either his or K.Y.’s sexual desires.

“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

219 N.E.2d 902, 904 (1966) (“In the present case the question of venue was not raised in the trial court and therefore could not properly have been raised for the first time on appeal.”).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 9 of 13 usual sequence to which such conduct usually points.” Bass v. State, 947 N.E.2d

456, 460 (Ind. Ct. App. 2011), trans. denied. Rogers’s conduct together with the

natural and usual sequence to which such conduct usually points supports the

inference that Rogers intended to arouse either his or K.Y.’s sexual desires

when he tickled and rubbed K.Y.’s sex organ with his hand. The evidence is

sufficient to sustain Rogers’s conviction for Class C felony child molesting.

C. Count IV [20] Rogers also challenges the sufficiency of the evidence to prove that he

committed Class D felony performing sexual conduct in the presence of a

minor. In order to prove that Rogers committed this crime, the State was

required to prove that Rogers, with a child under fourteen years of age, touched

or fondled himself in the presence of the child with the intent to arouse or

satisfy the sexual desires of either himself or the child. Ind. Code § 35-42-4-

5(c)(3).

[21] The State alleged that between February 6, 2008 and May 31, 2012, “Rogers,

being at least eighteen years of age … did knowingly or intentionally fondle or

touch himself in the presence of K.Y., a child under the age of fourteen, … with

the intent to arouse or satisfy the sexual desires of [Rogers] or K.Y.”

Appellant’s App. Vol. II p. 20. K.Y. testified that following one of the instances

of molestation that occurred in Yazel’s apartment, Rogers went into the

bathroom and collected lotion which he then rubbed on his penis in front of

K.Y.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 10 of 13 [22] It is uncontested that K.Y. was younger than fourteen and Rogers was well over

eighteen years of age when he committed this act. Also, given that Rogers

rubbed the lotion onto his penis immediately after he inappropriately touched

K.Y., one can reasonably infer that he did so with the intent to arouse either his

or K.Y.’s sexual desires. The evidence is sufficient to sustain Roger’s

conviction for Class D felony performing sexual conduct in the presence of a

minor.3 See Bass, 947 N.E.2d at 460.

II. Credit-Restricted Felon Classification [23] A defendant’s status as a credit-restricted felon is relevant to his assignment to a

credit-time class and, in turn, affects his accrual of credit time toward his

sentence. See Neal v. State, 65 N.E.3d 1139, 1141 (Ind. Ct. App. 2016). Indiana

Code section 35-41-1-5.5, which went into effect on July 1, 2008, defines credit-

restricted felon as “a person who has been convicted of … [c]hild molesting

involving sexual intercourse [or] sexual deviate conduct … if: (A) the offense is

committed by a person at least twenty-one (21) years of age; and (B) the victim

is less than twelve (12) years of age.”

[24] In arguing that the trial court erred in classifying him as a credit-restricted felon,

Rogers asserts that his classification as a credit-restricted felon under Count I

violates the constitutional prohibition of ex post facto laws. “Both the United

3 Rogers challenges his conviction under Count IV by arguing that the State failed to prove proper venue. However, for the reasons set forth in Footnote #2 on page 9, Rogers’s venue challenge fails.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 11 of 13 States Constitution and the Indiana Constitution prohibit ex post facto laws.”

Upton v. State, 904 N.E.2d 700, 705 (Ind. Ct. App. 2009). “The analysis is the

same under both.” Id. (internal quotation omitted). “To fall within the ex post

facto prohibition, a law must be retrospective—that is, it must apply to events

occurring before its enactment—and it must disadvantage the offender affected

by it.” Id. (internal quotation omitted).

[25] As the State seems to acknowledge, it would constitute an impermissible

violation of ex post facto prohibitions to attach the credit-restricted felon

classification to Count I, which included a time frame before the statute

creating the classification was enacted, i.e., May of 2008 to June 30, 2008. The

State argues, however, that Rogers’s classification as a credit-restricted felon is

proper given that the trial court clearly indicated in its oral sentencing statement

that the classification attached to Count II. When oral and written sentencing

statements conflict, we examine the statements together to discern the intent of

the sentencing court. See Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App.

2010). In this case, the trial court’s intent was clear. In its oral sentencing

statement, the trial court found Rogers to be a credit-restricted felon with

regards to the actions which occurred when K.Y. was seven or eight years old.

There is no question that K.Y. turned seven after Indiana Code section 35-41-1-

5.5 went into effect and that all of the charged conduct in Count II occurred

when K.Y. was seven or eight years old. It would not violate ex post facto

prohibitions to classify Rogers as a credit-restricted felon as to Count II. The

trial court, therefore, properly classified Rogers as a credit-restricted felon.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 12 of 13 [26] The judgment of the trial court is affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020 Page 13 of 13