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

• Court: Indiana Court of Appeals
• Decided: November 13, 2019
• Docket: 19A-JV-1102
• 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 13 2019, 10:03 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 Amy D. Griner Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

H.H., November 13, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-JV-1102 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable Jason Cichowicz, Appellee-Petitioner Judge The Honorable Graham Polando, Magistrate Trial Court Cause No. 71J01-1804-JD-99

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019 Page 1 of 5 [1] H.H. appeals the juvenile court’s adjudication that he was delinquent for

committing an act that would be Level 6 Felony Sexual Battery1 had it been

committed by an adult, arguing that the evidence is insufficient to support the

adjudication. Finding the evidence sufficient, we affirm.

Facts [2] On October 7, 2017, K.K. was attending a high school football game with

friends. K.K. lost track of her friend with whom she was supposed to spend the

night, so she and a different friend, L.M., called a fellow student, J.B., to come

and get them. Soon thereafter, J.B. arrived with H.H. and two other male

friends to pick them up. While inside the vehicle, everyone started passing

around a bottle of “mango tast[ing]” alcohol and drinking from it. Tr. Vol. II p.

24. According to K.K., she took “a couple drinks.” Id.

[3] Then, the car pulled over at a local beach. K.K. and L.M. exited the vehicle,

but K.K. testified that she “[was] having trouble standing,” “was dizzy,” and

“could barely see.” Id. at 26. K.K. and L.M. smoked from a marijuana cigarette

being passed around, got back in the vehicle, and left the beach.

[4] J.B. and H.H. invited K.K. and L.M. to H.H.’s house to spend the night. K.K.

and L.M. agreed, and upon arriving at the house, the party snuck through the

back door to avoid detection. All four of them went into H.H.’s parents’

1 Ind. Code § 35-42-4-8(a)(1)(B).

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019 Page 2 of 5 bedroom and got into the bed. After that point, K.K. testified that “[i]t started

to get a little fuzzy there, like I blacked out” and that “I don’t remember that

much.” Id. at 28. J.B. and L.M. went into a separate bedroom, leaving H.H.

and K.K. in H.H.’s parents’ bedroom. For the rest of the night, K.K. testified

that she “felt like [she] was getting sick and not feeling good.” Id. K.K. began

slipping in and out of consciousness and waking up sporadically. The first time

she woke up, K.K. felt H.H. on top of her, kissing her mouth. K.K. slipped

back into unconsciousness, and the next thing she remembered was J.B. and

L.M. reentering the bedroom and sleeping in the same bed. K.K. did not

remember anything else until she awakened the next morning and called her

sister to pick her up.

[5] On April 6, 2018, the State filed a delinquency petition, alleging that H.H. was

delinquent for committing acts that would be two counts of Level 6 felony

sexual battery had they been committed by an adult. Following a February 5,

2019, fact-finding hearing, the juvenile court adjudicated H.H. to be delinquent

on one count and dismissed the other. After H.H.’s April 17, 2019,

dispositional hearing, the juvenile court placed H.H. on strict, indefinite

probation and ordered that he participate in sex-offense treatment. H.H. now

appeals.

Discussion and Decision [6] H.H.’s sole argument on appeal is that the evidence is insufficient to support the

juvenile court’s delinquency adjudication.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019 Page 3 of 5 [7] Our standard of review for these types of juvenile cases is well established:

“In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess the credibility of the witnesses.” Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). “Rather, we look to the evidence and reasonable inferences drawn therefrom that support the [judgment], and we will affirm the [adjudication] if there is probative evidence from which a reasonable [factfinder] could have found the defendant guilty beyond a reasonable doubt.” Id. We must therefore reverse if there is no evidence or reasonable inference to support any one of the necessary elements of the offense. E.g., Grace v. State, 731 N.E.2d 442, 445 (Ind. 2000). (“[T]here must be sufficient evidence on each material element” to affirm a conviction).

K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013) (alterations in original); see also

A.J.R. v. State, 3 N.E.3d 1000, 1004-05 (Ind. Ct. App. 2014).

[8] To adjudicate H.H. as delinquent for committing an act that would be Level 6

felony sexual battery had it been committed by an adult, the State was required

to prove beyond a reasonable doubt that H.H., with the intent to arouse or

satisfy his own sexual desires or K.K.’s sexual desires, touched K.K. when she

was so mentally disabled or deficient that consent to the touching could not

have been given. I.C. § 35-42-4-8(a)(1)(B). Specifically, H.H. argues that the

evidence is insufficient to prove that K.K. was so mentally disabled or deficient

that she could not consent to the touching.

[9] While it is true that “[t]he plain meaning of ‘mentally disabled or deficient[]’ . .

. would exclude a temporary, natural state such as sleep from inclusion in that

phrase,” Ball v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), the evidence in

the record shows that K.K. was under the influence of substances that Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019 Page 4 of 5 contributed to her deficient mental state. K.K. testified that after drinking the

alcohol, she had trouble walking and felt “very dizzy[.]” Tr. Vol. II p. 27. Then,

after smoking an unknown amount of marijuana, K.K. returned with H.H. to

his home and stated that she felt ill all night. At multiple instances, K.K. slipped

in and out of consciousness, explaining that she had trouble remembering

certain moments, particularly the one where she claimed H.H. had gotten on

top of her and kissed her. In fact, she only fully came to her senses the next

morning when she called her sister to come get her.

[10] Based on this evidence, we find that a reasonable factfinder could have

concluded that K.K.’s mental state was so deficient due to these substances that

she was unable to give consent. Any argument by H.H. that we should

reconsider testimony or reexamine K.K.’s credibility amounts to a request that

we reweigh the evidence, which we may not do. We will consider any and all

logical and reasonable inferences drawn from the evidence in favor of the

juvenile court’s ruling. Consequently, the evidence was sufficient to adjudicate

H.H. as delinquent for committing an act that would be Level 6 felony sexual

battery had it been committed by an adult.

[11] The judgment of the juvenile court is affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019 Page 5 of 5