Htar Kyoo v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 17, 2015
• Docket: 02A03-1405-CR-149
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 17 2015, 9:50 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John C. Bohdan Gregory F. Zoeller Allen County Public Defender’s Office Attorney General of Indiana Fort Wayne, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Htar Kyoo, February 17, 2015

Appellant-Defendant, Court of Appeals Case No. 02A03-1405-CR-149 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Jr., Appellee-Plaintiff. Judge

Cause No. 02D05-1309-FB-158

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1405-CR-149 |February 17, 2015 Page 1 of 4 [1] Htar Kyoo (“Kyoo”) appeals his conviction of rape as a Class B felony.1 He

presents one issue on appeal: whether the evidence presented at trial was

sufficient to sustain his conviction.

[2] We affirm.

Facts and Procedural History [3] Kyoo, his wife, and his children lived in a two-bedroom home in Fort Wayne,

Indiana with two other families. Most of the home’s occupants slept

communally on the floor of the living room. Kyoo, on the other hand, slept on

a mattress in the basement. Except for those occasions when he asked his wife

to join him in the basement, he slept there alone. On September 6, 2013, N.M.,

Kyoo’s fifteen-year-old daughter decided to sleep in the basement. When Kyoo

returned home from work late that night, his wife informed him his daughter

was asleep downstairs, so Kyoo joined his wife and slept in the living room.

[4] The following night, N.M. again decided to sleep in the basement. Kyoo

returned home late that night, drank either two or three beers, and went down

to the basement to go to sleep. Kyoo got into bed with his sleeping daughter

and began to fondle and caress her and ultimately began to have vaginal

intercourse with her. N.M. woke up with Kyoo on top of her and his penis

inside her vagina. She pushed him off of her and fled upstairs. Kyoo followed

1 See Ind. Code § 35-42-4-1.

Court of Appeals of Indiana | Memorandum Decision 02A03-1405-CR-149 |February 17, 2015 Page 2 of 4 and returned with his wife (and N.M.’s mother) to the basement to have

intercourse. The following morning, N.M. told her mother what happened and

used her mother’s phone to call the police. Kyoo was taken into custody later

that day.

[5] The State charged Kyoo with rape as a Class B felony, sexual misconduct with

a minor as a Class B felony, and sexual misconduct with a minor as a Class C

felony. At trial, Kyoo raised the defense of mistake of fact, alleging that he

believed the woman he was having sex with was his wife, not his daughter.

After having been instructed on mistake of fact, the jury found Kyoo guilty on

all counts. At sentencing, the court merged the other two charges with the rape

charge. Kyoo now appeals his conviction.

Discussion and Decision [6] When a defendant claims that the evidence presented at trial was insufficient to

support a conviction, we neither reweigh the evidence nor judge the credibility

of the witnesses; rather, we examine only the evidence most favorable to the

judgment, together with all of the reasonable and logical inferences to be drawn

therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct. App. 2010), trans.

denied. A conviction may be sustained based on circumstantial evidence alone

if that circumstantial evidence supports a reasonable inference of guilt. Maul v.

State, 731 N.E.2d 438, 439 (Ind. 2000). We do not reweigh the evidence, and

we consider conflicting evidence most favorable to the trial court's ruling.

Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005).

Court of Appeals of Indiana | Memorandum Decision 02A03-1405-CR-149 |February 17, 2015 Page 3 of 4 [7] Kyoo argues that the State did not present sufficient evidence to establish that

he knew he was having sexual intercourse with his daughter. At trial, the State

presented evidence that: (1) N.M. had slept in the basement the night before,

Tr. at 139; (2) there was sufficient ambient light in the basement to see clearly,

Tr. at 147; and (3) Kyoo had made prior inconsistent statements regarding the

events on the night in question, Tr. at 252. From this evidence and the

reasonable inferences therefrom, a jury could reasonably believe N.M.’s

testimony over Kyoo’s testimony and, therefore, conclude beyond a reasonable

doubt that Kyoo knew he was sleeping with his daughter. Any argument that

Kyoo’s testimony ought to be believed over N.M.’s would amount to asking us

to reweigh the evidence, which we may not do. We conclude that the evidence

presented at trial was sufficient to support Kyoo’s conviction.

Affirmed.

Friedlander, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1405-CR-149 |February 17, 2015 Page 4 of 4