Kenneth Welches v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 13, 2016
• Docket: 71A05-1512-CR-2249
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 13 2016, 5:59 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Philip R. Skodinski Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth Welches, September 13, 2016 Appellant-Defendant, Court of Appeals Case No. 71A05-1512-CR-2249 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jerome Frese, Appellee-Plaintiff. Judge Trial Court Cause No. 71D03-1301-FC-10

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 1 of 9 [1] Following a jury trial, Welches was convicted of two counts of Class C felony

child molesting. Welches presents three issues for our review:

1. Did the trial court abuse its discretion when it denied Welches’s motion, made after the jury had been selected but before the jury had been sworn, to have a seated juror switched to an alternate juror position?

2. Did the trial court abuse its discretion in admitting State’s Exhibits 1 and 2?

3. Did the State present sufficient evidence to sustain Welches’s convictions?

[2] We affirm.

Facts & Procedural History

[3] Welches is the maternal grandfather of K.M., who was born in 2001. Welches

moved in with K.M.’s family in June 2010. Welches did not have a separate

room, but rather stayed in the living room and slept on the couch as the

arrangement was intended to be temporary. K.M. and Welches had a close

relationship and they often did things together, such as playing board games,

watching television, going to McDonald’s or out for ice cream, or taking rides

on Welches’s moped. K.M.’s brothers, one older and one younger, interacted

with Welches but not to the same extent as K.M. K.M.’s mother would

sometimes leave K.M. and/or her brothers home with Welches when she had

to go out.

Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 2 of 9 [4] During the summer of 2011, K.M.’s relationship with Welches changed. One

day while K.M. was home alone with Welches, Welches, who was on a couch

in the living room and covered up by a blanket, asked K.M. to come over to

him. K.M. lifted the blanket and saw that Welches had pulled his pants down

and that his penis was exposed. K.M. then went to her room. A couple of days

later, K.M. was on the couch with Welches when he told her to touch his penis

with her hand. He gave her instructions and demonstrated how she was to

stroke his penis with up and down movements. K.M. touched Welches’s penis,

which was soft at first and then it got harder. She continued rubbing his penis

until he told her to stop. This occurred about once a week for the rest of the

summer. In addition to K.M. touching Welches’s penis, Welches would put his

hands down K.M.’s pants and touch her vagina. K.M. did not tell anyone

about what Welches was doing with her because Welches told her not to and

she did not think it was wrong at the time.

[5] Welches moved out of K.M.’s home at some point after K.M. started fourth

grade. K.M. eventually told her mother what had occurred. K.M.’s mother

told K.M.’s father, who then called the police. K.M. was interviewed at the

CASIE Center on March 29, 2012, during which she disclosed that she had

been sexually abused. K.M. was also physically examined by a nurse. K.M.

indicated that she understood the nurse would be examining her “down there

because that’s where her grandfather had touched her.” Transcript at 421.

[6] During the summer when the molestations occurred, K.M.’s mother noticed a

change in K.M.’s behavior and her physical well-being such that she sought

Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 3 of 9 medical advice. K.M. was diagnosed with anxiety and it was recommended

that she see a counselor. Although she did not realize it at the time, K.M.’s

mother later considered some of the behavior she saw between K.M. and

Welches to be inappropriate especially in light of what K.M. had since

disclosed.

[7] On January 16, 2013, the State charged Welches with two counts of Class C

felony child molesting. A four-day jury trial commenced on October 26, 2015.

After the jury had been selected but before the jury was sworn, Welches moved

to have one of the seated jurors switched with an alternate juror because the

seated juror lived near the victim’s home. The trial court denied Welches’s

motion and the seated juror remained on the jury. At the conclusion of the

evidence, the jury found Welches guilty of both counts of child molesting. The

trial court sentenced Welches to consecutive terms of eight years. Welches now

appeals. Additional facts will be provided where necessary.

1. Request to Switch Juror

[8] Welches argues that the trial court abused its discretion when it denied his

motion to switch a seated juror to an alternate juror position and replace him

with the alternate juror. “A defendant is entitled as a matter of right only to an

impartial jury, Ind. Const. Art. I, § XIII, and not to one of his precise choosing

where the issue is merely replacing a regular juror with an alternate.” Jervis v.

State, 679 N.E.2d 875, 882 (Ind. 1997). Indeed, Indiana Trial Rule 47(B) allows

alternate jurors to replace regular jurors “who, prior to the time the jury returns

Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 4 of 9 its verdict, become or are found to be unable or disqualified to perform their

duties.” Trial courts have significant leeway in determining whether to replace

a juror with an alternate, and we will reverse only if there was an abuse of

discretion. Harris v. State, 659 N.E.2d 522, 525 (Ind. 1995); Ferry v. State, 453

N.E.2d 207, 213 (Ind. 1983).

[9] At the start of the second day of trial, after the jury had been chosen but before

the jury was sworn, Welches informed the court that he had “second thoughts”

about one of the jurors because he “sort of recognizes the guy.” Transcript at

246. Welches noted that because that juror lived in close proximity to the

victim and her family, his concern was that the juror might recognize the victim

or some of the witnesses at trial and thus, might be biased against him.

[10] In denying Welches’s motion, the trial court aptly noted that if there was a

concern about the juror’s ability to render an impartial decision, such would

similarly affect his ability to serve as an alternate juror. The trial court then

considered the merits of Welches’s request and, concluding that Welches had

presented no grounds upon which to excuse the juror, denied Welches’s

motion.

[11] We agree with the trial court. During voir dire, defense counsel explicitly asked

the juror whether he was familiar with the victim or any of the potential

witnesses. The juror indicated that he was not and assured defense counsel that

if he recognized anyone he would let the trial court know. Welches did not use

a peremptory challenge to remove the juror from the jury panel. Aside from his

Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 5 of 9 own self-serving assertion that he “sort of recognizes the guy” and that the juror

might be biased because he lives near the victim, there is no indication in the

record of any potential bias on the part of the juror. The trial court did not

abuse its discretion in denying Welches’s request to move the juror to an

alternate juror position.1

2. Admission of Evidence

[12] Welches argues that the trial court abused its discretion in admitting into

evidence Exhibits 1 and 2,2 which he described as “cute” photographs of the

victim. Appellant’s Brief at 8. He asserts that because her age was not an issue at

trial, the probative value of the photographs was outweighed by unfair

prejudice. Trial courts have broad discretion in ruling on the admissibility of

evidence. Palilonis v. State, 970 N.E.2d 713, 725 (Ind. Ct. App. 2012), trans.

denied. We review the admission of photographic evidence for an abuse of

discretion. Corbett v. State, 764 N.E.2d 622, 627 (Ind. 2002). An abuse of

discretion occurs when the trial court’s ruling is clearly against the logic and

effect of the facts and circumstances before it. Palilonis, 970 N.E.2d at 725.

1 Welches also notes that he had peremptory challenges remaining at the conclusion of voir dire and asserts that it was his right to exercise them. Welches, however, chose not to exercise his peremptory challenge to excuse the juror from the jury panel during voir dire and made no request to do so when he raised his concern about the juror prior to the jury being sworn. At that point, Welches sought only to switch the juror with an alternate juror, not dismiss the juror with a peremptory challenge. Welches cannot use this choice as a basis for finding that the trial court abused its discretion. 2 The pictures depict K.M. around the time the molestations occurred. Exhibit 1 is a photograph of K.M. during the spring of her third grade year and Exhibit 2 is a photograph of K.M. on the first day of fourth grade.

Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 6 of 9 [13] Indiana Evidence Rule 402 provides that relevant evidence is generally

admissible and irrelevant evidence is not admissible. Under Indiana Evidence

Rule 401, “[e]vidence is relevant if (a) it has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.”

[14] The age of the victim is an essential element of the crime of child molesting.

Thus, contrary to Welches’s claim, the photographs were relevant as they

provided additional proof for the State in establishing K.M.’s age at the time of

the molestations. The fact that the pictures depicted K.M. as “cute” does not

detract from their relevancy nor does it render them unfairly prejudicial.

Welches has not established that the trial court abused its discretion in

admitting Exhibits 1 and 2.

3. Sufficiency of the Evidence

[15] Welches argues that the evidence is insufficient to sustain his convictions. Our

standard of reviewing challenges to the sufficiency of the evidence supporting a

criminal conviction is well settled.

When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. The evidence— even if conflicting—and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. “[W]e 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

Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 7 of 9 reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004).

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Further, a conviction for child

molesting may be based solely on the uncorroborated testimony of the victim.

Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).

[16] To sustain a conviction for child molesting as a Class C felony, the State was

required to prove that Welches knowingly performed or submitted to fondling

or touching with K.M., a child under fourteen years of age, with the intent to

arouse or satisfy his sexual desires or the sexual desires of K.M. See Ind. Code §

35-42-4-3(b). The State alleged for each count that the molestation occurred

between July 1, 2010 and August 31, 2011, which is the time period Welches

lived with K.M.’s family.

[17] In arguing that the evidence is insufficient to sustain his convictions, Welches

simply challenges the credibility of K.M., pointing to evidence that he claims

shows he was never alone with K.M. during the period of time the molestations

were alleged to have occurred. Welches specifically relies on K.M.’s mother’s

testimony that she did not recall ever leaving K.M. alone with Welches. K.M.’s

mother qualified this testimony, however, by acknowledging that she may have

left K.M. at home with Welches and K.M.’s brothers, who generally stayed in

their rooms and kept to themselves. Thus, contrary to Welches’s claim, even

this testimony does not foreclose the possibility that there were opportunities for

Welches to be alone with K.M. during the timeframe when K.M. said the

molestations occurred. Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 8 of 9 [18] Nevertheless, K.M. unequivocally and consistently testified that there were

times when she was alone with Welches and that during some of those times,

he sexually molested her. The jury as the trier of fact was tasked with assessing

the credibility of the witnesses. Welches’s argument is simply asking this court

to reweigh the evidence or assess the credibility of the witnesses, a task we will

not undertake on appeal. K.M.’s testimony provides sufficient evidence to

sustain Welches’s convictions for child molesting as Class C felonies.

[19] Judgment affirmed.

[20] Bradford, J. and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016 Page 9 of 9