J.E. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 15, 2014
• Docket: 49A02-1312-JV-1053
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Aug 15 2014, 7:31 am 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:

ELLEN F. HURLEY GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

J. E., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1312-JV-1053 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Jennifer Hubartt, Magistrate Cause No. 49D09-1305-JD-1170

August 15, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge STATEMENT OF THE CASE

Appellant-Defendant, J.E., appeals the juvenile court’s adjudication of delinquency

based on true findings that he committed two Counts of child molesting, Ind. Code § 35-

42-4-3, offenses that would be Class B felonies if committed by an adult.

We affirm.

ISSUE

J.E. raises two issues on appeal, one of which we find dispositive and restate as

follows: Whether the State presented sufficient evidence to sustain the juvenile court’s

true findings for two Counts of child molesting, which would be Class B felonies if

committed by an adult.

FACTS AND PROCEDURAL HISTORY

R.E. was born on February 23, 2007, and lives with his mother (Mother) and his

two sisters who were then age eight and fourteen. J.E., who was fourteen years old at the

time of the incident, lived with his parents, and his two sisters, aged eleven and thirteen.

J.E. is a brother to Mother, therefore, an uncle to R.E. On New Year’s Eve, 2012, Mother,

R.E., and R.E.’s two sisters attended an evening church service where they met with J.E.,

J.E.’s parents who were also R.E.’s grandparents (Grandparents), and J.E.’s two sisters.

After the church service, Grandparents took R.E. and R.E’s sisters back to their home.

They arrived shortly before midnight. Grandmother made snacks for the New Year’s

celebration as the children played and watched television in the living room.

2 At around 12:30 a.m., Grandfather retired to bed, followed by Grandmother at

around 1:00 a.m. As she was going to bed, Grandmother saw R.E. and R.E.’s sisters

playing in J.E.’s bedroom. The rest of the children were in the living room playing cards,

talking, and watching television. The following day, at around 3:00 p.m., Grandparents

left the house to go to Red Lobster for lunch. They left all six children at home and

instructed them to clean the house if they wanted to use their gift cards for dinner at Chili’s.

While Grandparents were away, the children cleaned the house, watched television, and

J.E and J.E.’s sisters changed their clothes. R.E. and his sisters did not change, since they

did not have a change of clothes. Around 6:30 p.m., Grandparents returned home and

found that the children were ready and dressed for dinner. All of the children except for

R.E., had gift cards, and because R.E. did not have a gift card, Grandparents dropped him

off at his home before going to Chili’s.

Sometime in mid-January 2013, R.E.’s eight-year-old sister reported to Mother that

R.E. had told her that J.E. had done “nasty things” to him. (Transcript p. 73). Mother then

questioned R.E. as to what nasty things he was talking about. At first, R.E. was reluctant,

but he eventually told Mother that while he was at Grandparent’s house, he was in J.E.’s

bedroom “playing a videogame” with J.E., and that J.E. had sucked R.E.’s penis, and had

“put his penis” inside R.E.’s “bottom.” (Tr. p. 14). To establish the truthfulness of R.E.’s

allegations, Mother called Grandfather, and he agreed to meet her at her home. When he

arrived, they met in the parking lot and talked inside the car, and Grandfather assured

Mother that he would conduct his own investigation. The following day, Mother followed

3 up the issue with Grandfather, but Grandfather dismissed her allegations claiming that

“nobody saw anything when they were at the house.” (Tr. p. 17). Since nothing came out

of that, Mother consulted her pastor who then gave her a contact number to a psychologist.

Consequently, Mother scheduled an appointment with the psychologist where she shared

R.E.’s story but before the session could go any further, the psychologist informed Mother

that he was bound by law to report any cases of child molestation. At that point, the

psychologist placed the call to the Department of Child Services (DCS) as Mother was in

the room, and he reported the incident. DCS later linked Mother with the Child Advocacy

Center in Indianapolis.

On February 12, 2013, Lanette Wheeler (Wheeler), a child forensic interviewer with

the Child Advocacy Center, interviewed R.E. During the videotaped forensic interview,

Wheeler showed R.E. drawings of the front and back sides of a boy and girl and asked R.E.

to tick the body parts which he referred to as private parts. R.E. pointed to the boys’

genitalia, which he called the “penis,” and the buttocks as the “behind.” (State’s Exh. 1).

R.E. stated that J.E. had pulled down his pants and underwear before he “sucked [R.E.’s]

penis.” (State’s Exh. 1). R.E. also stated that J.E. “spit on his penis” before inserting it in

[R.E.’s] “bottom.” (State’s Exh. 1). R.E. also informed Wheeler that he had told J.E. to

“stop because it hurt.” (State’s Exh. 1). R.E. further stated that J.E. asked him “not to tell

anyone or he would get mad.” (State’s Exh. 1).

On May 8, 2013, the State filed a petition alleging that J.E. was a delinquent child

based on three acts of child molesting, two of which would be Class B felonies, Ind. Code

4 § 35-42-4-3; and one of which would be a Class C felony, I.C. § 35-42-4-3(b), if committed

by an adult. On September 26, 2013, the juvenile court held a hearsay hearing where

Mother testified, and the juvenile court also found R.E. to be a competent witness. A denial

hearing was held on October 17, 2013, to determine whether J.E. was delinquent for child

molesting. At the beginning of the hearing, the juvenile court took judicial notice that R.E.

was a competent witness and it incorporated Mother’s hearsay testimony as well as the

videotaped forensic interview. In addition, R.E. testified stating that J.E. had touched his

private parts by sucking his penis, and that J.E. had tried to penetrate his bottom using his

penis. According to R.E., the molestation occurred on New Year’s Eve while playing a

videogame in J.E.’s bedroom, and that a similar thing happened the next day while

Grandparents were away. At the end of the hearing, the juvenile court found the child

molesting allegations to be true. On November 21, 2013, the juvenile court held a

dispositional hearing and ordered that J.E. be placed on probation with some of the

following conditions: that he completes a home-based sexual offender treatment, have no

contact with R.E., and only have supervised contact with any child under the age of twelve.

The juvenile court also issued a parental participation order where Grandfather was to:

ensure that J.E. complied with all the terms of his probation, accompany J.E. to all

appointments, know J.E.’s whereabouts at all times, and set a curfew for him.

J.E. now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

5 J.E. argues that the evidence was insufficient to support his adjudications for two

Counts of child molesting, Class B felonies, if committed by an adult.

The standard of review for a juvenile adjudication is the same as if the crime had

been committed by an adult. D.D. v. State, 668 N.E.2d 1250, 1252 (Ind. Ct. App. 1996).

On review, we will not reweigh the evidence or judge the credibility of the witnesses. D.B.

v. State, 842 N.E.2d 399, 401-02 (Ind. Ct. App. 2006). Rather, we look to the evidence

and the reasonable inferences therefrom that support the true finding. Id. We will affirm

the adjudication if evidence of probative value exists from which the fact finder could find

the juvenile guilty beyond a reasonable doubt. Id. Evidence is insufficient to convict only

when no rational fact finder could have found the defendant guilty beyond a reasonable

doubt. Bradford v. State, 675 N.E.2d 296, 298 (Ind. 1996); D.B., 842 N.E.2d at 401-02.

J.E. first argues that “there were several discrepancies” in R.E.’s testimony.

(Appellant’s Br. p. 7). We find this to be an invitation to judge the credibility of a witness

and reweigh the evidence. This is not our role as an appellate court. See D.B., 842 N.E.2d

at 401-02. In fact, it is well settled that the testimony of a child victim, even if

uncorroborated, is ordinarily sufficient to sustain a conviction for child molesting. Bowles

v. State, 737 N.E.2d 1150, 1152 (Ind. 2000). And to the extent that there were any

inconsistencies in R.E.’s testimony, we have observed before that it is “not surprising that

a young child in an adversary courtroom setting may demonstrate a degree of confusion

and inconsistency.” Hill v. State, 646 N.E.2d 374, 378 (Ind. Ct. App. 1995). Although we

note that there were some slight variations in R.E.’s testimony regarding the precise date,

6 how many times it happened, and how it made him feel, he did not waiver about the fact

that J.E. molested him.

Next, J.E. claims that the evidence was still insufficient to prove that he committed

two separate acts of child molesting. We disagree. When the State seeks to have a juvenile

adjudicated a delinquent, it must prove every element of the offense beyond a reasonable

doubt. D.B., 842 N.E.2d at 401. To prove that J.E. committed acts that would be Class B

felonies child molesting, if committed by an adult, the State was required to prove that J.E.

did, with a child under fourteen years of age, performed or submitted to deviate sexual

conduct. See I.C. § 35-42-4-3(a). “Deviate sexual conduct” is an act involving the sex

organ of one person and the mouth or anus of another person. Ind. Code § 35-41-1-9.

Count I of the delinquency petition alleged that J.E. committed what would be Class

B felony child molesting if committed by an adult, by performing or submitting an act

involving his mouth and R.E.’s penis. Count II alleged that J.E. committed what would be

Class B felony child molesting, if committed by an adult, by performing or submitting to

an act involving his penis and R.E.’s anus.

Turning to Count I, R.E. testified at the denial hearing that while playing a

videogame in J.E.’s bedroom, J.E. “paused the game [,] [] pulled down [R.E’s] pants [,]

and sucked [R.E.’s] private parts.” (Tr. p. 52). R.E. had earlier clarified that his private

parts were his “penis and butt.” (Tr. p. 52). R.E. also testified that the door was locked

and no one else was in the room; however, his sisters and J.E.’s sisters were in the house.

At the denial hearing, one of J.E’s sister testified that she was in the house on New Year’s

7 Eve and on New Year’s Day and that she did not witness any molestation. The fact that

J.E.’s sister did not witness the molestation does not mean it did not occur. The same is

true regarding J.E.’s contention that the molestation occurred in a house where “five to

eight people” were present. (Appellant’s Br. p. 8). While it is unfortunate that child

molestation still occurs even where other persons are present, such occurrences do not run

counter to human experience. See Altes v. State, 822 N.E.2d 1116, 1122 (Ind. Ct. App.

2005) (where the defendant molested the victim despite the fact that other children in the

house), trans. denied; Barber v. State, 870 N.E. 2d 486, 494 (Ind. Ct. App. 2005). (where

the defendant took the victim to the back of the classroom and molested her while other

students were watching a film in the same classroom), trans. denied. Based on the evidence

presented at trial, we find that the juvenile court could have drawn a reasonable inference

that J.E. put R.E.’s penis in his mouth. Therefore, we find that evidence was sufficient to

sustain the finding that J.E.’s committed an act what would be a Class B felony child

molesting, if committed by an adult.

As for Count II, R.E. testified that J.E. “put his penis in [R.E.’s] behind.” (Tr. p.

53). J.E. argues that the evidence was insufficient to establish that he performed deviate

sexual conduct because “there was no evidence of contact with R.E.’s anus other than”

R.E.’s above statement. (Appellant’s Br. p. 10).

Although evidence of penetration of a child’s anus by a defendant’s penis will

establish deviate sexual conduct, the State is not required to introduce evidence of

penetration. Wisneskey v. State, 736 N.E.2d 763, 764 (Ind. Ct. App. 2000). Instead, the

8 State is required only to establish that the defendant “committed a sex act with his penis

involving the child’s anus.” Id. Our supreme court has noted that in child molestation

cases a detailed anatomical description by the victim is unnecessary and undesirable.

Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996). The court reasoned that many people

are unable to precisely describe anatomical features, and further, that such a requirement

would subject victims to unwarranted questioning and cross-examination. Id. Thus,

despite a child’s unfamiliarity with anatomical terms and his limited sexual vocabulary, a

conviction for child molesting may rest solely upon the child’s uncorroborated testimony.

Wisneskey, 736 N.E.2d at 765.

J.E. cites Downey v. State, 726 N.E.2d 794, 797 (Ind. Ct. App. 2000), trans. denied,

in support of his contention that the State failed to prove that J.E.’s penis touched R.E.’s

anus. In Downey, the victim testified that Downey had rubbed his penis up and down

between her “butt cheeks.” Id. A police detective and child sexual abuse counselor

testified that Downey admitted that he had rubbed his penis between the child’s “butt

cheeks” and was “humping” her, but that he did not penetrate her. Id. Because there was

no explicit evidence of contact with the anus, this court concluded that there was

insufficient evidence to convict Downey of child molesting.

We find the instant facts inapposite from Downey. Here, the State was only required

to establish that J.E. committed a sex act with his penis involving R.E.’s anus and not

required to introduce evidence of penetration. See Wisneskey, 736 N.E.2d at 764.

However, our viewing of the videotaped forensic interview discloses that R.E.’s statements

9 were more specific than J.E.’s interpretations that there was no evidence of contact with

R.E.’s anus. Indeed, the videotape reveals the following dialogue between Wheeler and

R.E.:

Q: Was it inside of your butt or outside your butt? A: Well it was inside and it hurt and I cried.

(State’s Exh. 1). As we held in Wisneskey, 736 N.E.2d at 765, the fact-finder can infer that

pain is the result of contact between the defendant’s penis and the anus. Moreover, R.E.

testified at the denial hearing that J.E. put his penis in R.E.’s behind. In this regard, we

find that the evidence here was sufficient to allow an inference beyond a reasonable doubt

that J.E. committed child molesting by causing his penis to make contact with R.E.’s anus.

In sum, we find that the evidence presented was sufficient to sustain true findings

for child molesting. As such, we conclude that State proved every element of the offenses

beyond a reasonable doubt. See D.B., 842 N.E.2d at 401.

CONCLUSION

In light of the foregoing, we find that the State presented sufficient evidence to

support the juvenile court’s determination that J.E. is a delinquent child for committing

acts that would constitute Class B felonies child molesting, if committed by an adult.

Affirmed.

MATHIAS, J. and CRONE, J. concur