MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 07 2020, 10:24 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 Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kim E. Sanders, February 7, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1440 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1805-F4-18
Mathias, Judge.
[1] Kim E. Sanders (“Sanders”) appeals his conviction in the Tippecanoe Superior
Court for sexual misconduct with a minor as a Level 5 felony. Sanders argues
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 1 of 6 that the evidence is insufficient to support his conviction because the State
failed to prove the intent element of the offense. Concluding that the evidence is
sufficient, we affirm Sanders’s conviction.
[2] We affirm.
Facts and Procedural History [3] J.P., born in September 2001, lived in Lafayette with her grandmother, Sherry
Wells Sanders (“Sherry”). J.P.’s mother, Deidra Pratt-Posey (“Deidra”), lived
nearby with J.P.’s stepfather. Though Sherry is J.P.’s legal guardian, J.P.
frequently spent time at her mother’s apartment. Sanders, who was in his early
60s at the time of these events, is Deidra’s paternal uncle and J.P.’s great-uncle.
[4] In the summer of 2016, Sanders occasionally helped Sherry with work around
the house and yard. Sanders did odd jobs at a hobby store in Lebanon where
J.P.’s stepfather worked and regularly visited the family at Deidra’s apartment.
J.P. also worked at the hobby store outside of school hours. As a result, Sanders
sometimes drove J.P. between home and the hobby shop and was present when
J.P. was at her mother’s and grandmother’s homes.
[5] Around July or August 2016, when J.P. was fourteen, Sanders kissed J.P. on
the lips. This occurred in Sanders’s vehicle as he dropped off J.P. at her
grandmother’s home. Uncomfortable, J.P. left the vehicle quickly. After the
vehicle incident, Sanders groped J.P.’s breasts over her clothing. Several
months later, Sanders molested J.P. at her mother’s apartment. He took
advantage of being alone in the living room with J.P. while Deidra and her Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 2 of 6 husband were in the bathroom attempting to give a bath to their young
daughter. Sanders sat next to J.P., kissed her on the mouth, and put his hands
down J.P.’s pants and underwear. He moved his fingers on and in J.P.’s vagina.
Once Sanders left the apartment, J.P. cried.
[6] Sometime after the incident at Deidra’s apartment, Sanders told J.P. that he
wanted to be her boyfriend and that she had a “nice butt.” Tr. p. 45. J.P. saw
Sanders again around March 2017 at the hobby shop. Sanders asked J.P. why
they could not be friends and why she was avoiding him. J.P. told him to leave
her alone and not speak to her. The following day, when J.P. arrived at the
hobby shop with Deidra, J.P. saw Sanders’s vehicle outside the shop and
refused to go in. She felt scared and angered.
[7] J.P. first told her stepfather about Sanders’s behavior before confiding in her
therapist and her grandmother. The family contacted the Lafayette Police
Department in April 2017, and J.P. spoke to a forensic investigator trained in
interviewing children. Law enforcement officials took statements from J.P.’s
mother, grandmother, and stepfather. In May 2018, the State charged Sanders
with one count of Level 4 felony sexual misconduct with a minor and two
counts of Level 5 felony sexual misconduct with a minor, plus alleged him to be
an habitual offender. A bench trial was held on April 2 and 3, 2019. Sanders
was found guilty of the Level 4 felony and of one Level 5 felony, and not guilty
of the second Level 5 felony offense. The State failed to prove Sanders was an
habitual offender. Sanders was sentenced to ten years on the Level 4 felony and
four years on the Level 5 felony, to be served consecutively, with eight years
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 3 of 6 executed in the Department of Correction and six years suspended. Sanders
now appeals his conviction for Level 5 felony sexual misconduct with a minor.
Discussion and Decision [8] Sanders contends that the evidence presented at trial was insufficient to support
his conviction for Level 5 felony sexual misconduct with a minor. Appellant’s
App. p. 7. When reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of the witnesses. Clemons
v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. Rather, we
look to the evidence favorable to the verdict, along with any inferences
reasonably drawn therefrom. Id. If there is evidence of probative value from
which a reasonable trier of fact could infer that the defendant was guilty beyond
a reasonable doubt, we will affirm the conviction. Id.
[9] In order to convict Sanders of Level 5 felony sexual misconduct with a minor,
the State was required to prove that Sanders knowingly or intentionally
performed any fondling or touching with J.P. with intent to arouse or to satisfy
the sexual desires of either J.P. or himself. See Ind. Code § 35-42-4-9(b). The
trial court based its finding of guilt for the Level 5 offense on the incident when
Sanders kissed J.P. in his vehicle. Tr. p. 86. Sanders argues that the evidence of
this incident is insufficient to show he acted with intent to arouse or satisfy the
sexual desires of J.P. or himself. Rather, he argues, the incident only shows his
effort to facilitate future sexual gratification. We disagree.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 4 of 6 [10] Sanders asserts that because he did not say anything to J.P. or put his tongue in
her mouth when he kissed her, there is insufficient evidence that he acted with
intent to arouse or satisfy sexual desire. Mere touching alone is not sufficient to
constitute the crime of sexual misconduct with a minor. J.H. v. State, 655
N.E.2d 624, 625 (Ind. Ct. App. 1995), trans. denied. The State must also prove
beyond a reasonable doubt that the act of touching was accompanied by the
specific intent to arouse or satisfy sexual desires. Id. “The intent to gratify
[sexual desires] . . . must coincide with the conduct; it is the purpose or
motivation for the conduct.” DeBruhl v. State, 544 N.E.2d 542, 546 (Ind. Ct.
App. 1989). Intent may be established by circumstantial evidence and may be
inferred “from the actor’s conduct and the natural and usual sequence to which
such conduct usually points.” Bowles v.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 07 2020, 10:24 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 Timothy P. Broden Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kim E. Sanders, February 7, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1440 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1805-F4-18
Mathias, Judge.
[1] Kim E. Sanders (“Sanders”) appeals his conviction in the Tippecanoe Superior
Court for sexual misconduct with a minor as a Level 5 felony. Sanders argues
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 1 of 6 that the evidence is insufficient to support his conviction because the State
failed to prove the intent element of the offense. Concluding that the evidence is
sufficient, we affirm Sanders’s conviction.
[2] We affirm.
Facts and Procedural History [3] J.P., born in September 2001, lived in Lafayette with her grandmother, Sherry
Wells Sanders (“Sherry”). J.P.’s mother, Deidra Pratt-Posey (“Deidra”), lived
nearby with J.P.’s stepfather. Though Sherry is J.P.’s legal guardian, J.P.
frequently spent time at her mother’s apartment. Sanders, who was in his early
60s at the time of these events, is Deidra’s paternal uncle and J.P.’s great-uncle.
[4] In the summer of 2016, Sanders occasionally helped Sherry with work around
the house and yard. Sanders did odd jobs at a hobby store in Lebanon where
J.P.’s stepfather worked and regularly visited the family at Deidra’s apartment.
J.P. also worked at the hobby store outside of school hours. As a result, Sanders
sometimes drove J.P. between home and the hobby shop and was present when
J.P. was at her mother’s and grandmother’s homes.
[5] Around July or August 2016, when J.P. was fourteen, Sanders kissed J.P. on
the lips. This occurred in Sanders’s vehicle as he dropped off J.P. at her
grandmother’s home. Uncomfortable, J.P. left the vehicle quickly. After the
vehicle incident, Sanders groped J.P.’s breasts over her clothing. Several
months later, Sanders molested J.P. at her mother’s apartment. He took
advantage of being alone in the living room with J.P. while Deidra and her Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 2 of 6 husband were in the bathroom attempting to give a bath to their young
daughter. Sanders sat next to J.P., kissed her on the mouth, and put his hands
down J.P.’s pants and underwear. He moved his fingers on and in J.P.’s vagina.
Once Sanders left the apartment, J.P. cried.
[6] Sometime after the incident at Deidra’s apartment, Sanders told J.P. that he
wanted to be her boyfriend and that she had a “nice butt.” Tr. p. 45. J.P. saw
Sanders again around March 2017 at the hobby shop. Sanders asked J.P. why
they could not be friends and why she was avoiding him. J.P. told him to leave
her alone and not speak to her. The following day, when J.P. arrived at the
hobby shop with Deidra, J.P. saw Sanders’s vehicle outside the shop and
refused to go in. She felt scared and angered.
[7] J.P. first told her stepfather about Sanders’s behavior before confiding in her
therapist and her grandmother. The family contacted the Lafayette Police
Department in April 2017, and J.P. spoke to a forensic investigator trained in
interviewing children. Law enforcement officials took statements from J.P.’s
mother, grandmother, and stepfather. In May 2018, the State charged Sanders
with one count of Level 4 felony sexual misconduct with a minor and two
counts of Level 5 felony sexual misconduct with a minor, plus alleged him to be
an habitual offender. A bench trial was held on April 2 and 3, 2019. Sanders
was found guilty of the Level 4 felony and of one Level 5 felony, and not guilty
of the second Level 5 felony offense. The State failed to prove Sanders was an
habitual offender. Sanders was sentenced to ten years on the Level 4 felony and
four years on the Level 5 felony, to be served consecutively, with eight years
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 3 of 6 executed in the Department of Correction and six years suspended. Sanders
now appeals his conviction for Level 5 felony sexual misconduct with a minor.
Discussion and Decision [8] Sanders contends that the evidence presented at trial was insufficient to support
his conviction for Level 5 felony sexual misconduct with a minor. Appellant’s
App. p. 7. When reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of the witnesses. Clemons
v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. Rather, we
look to the evidence favorable to the verdict, along with any inferences
reasonably drawn therefrom. Id. If there is evidence of probative value from
which a reasonable trier of fact could infer that the defendant was guilty beyond
a reasonable doubt, we will affirm the conviction. Id.
[9] In order to convict Sanders of Level 5 felony sexual misconduct with a minor,
the State was required to prove that Sanders knowingly or intentionally
performed any fondling or touching with J.P. with intent to arouse or to satisfy
the sexual desires of either J.P. or himself. See Ind. Code § 35-42-4-9(b). The
trial court based its finding of guilt for the Level 5 offense on the incident when
Sanders kissed J.P. in his vehicle. Tr. p. 86. Sanders argues that the evidence of
this incident is insufficient to show he acted with intent to arouse or satisfy the
sexual desires of J.P. or himself. Rather, he argues, the incident only shows his
effort to facilitate future sexual gratification. We disagree.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 4 of 6 [10] Sanders asserts that because he did not say anything to J.P. or put his tongue in
her mouth when he kissed her, there is insufficient evidence that he acted with
intent to arouse or satisfy sexual desire. Mere touching alone is not sufficient to
constitute the crime of sexual misconduct with a minor. J.H. v. State, 655
N.E.2d 624, 625 (Ind. Ct. App. 1995), trans. denied. The State must also prove
beyond a reasonable doubt that the act of touching was accompanied by the
specific intent to arouse or satisfy sexual desires. Id. “The intent to gratify
[sexual desires] . . . must coincide with the conduct; it is the purpose or
motivation for the conduct.” DeBruhl v. State, 544 N.E.2d 542, 546 (Ind. Ct.
App. 1989). Intent may be established by circumstantial evidence and may be
inferred “from the actor’s conduct and the natural and usual sequence to which
such conduct usually points.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind.
2000).
[11] Here, the trial court heard evidence from which it could be reasonably inferred
that Sanders was motivated to kiss his great-niece on the lips to arouse or satisfy
his sexual desires. The facts most favorable to the judgment show that Sanders
chose to kiss J.P., with whom he spent time in the company of other family
members, in private, when he and J.P. were alone in his vehicle. Sanders
subsequently suggested that he become J.P.’s boyfriend, also when they were
alone together at the hobby shop. This conduct indicates Sanders’s awareness
that our society rejects sexual relationships between members of the same
family. Sanders made at least one comment about an erogenous zone of J.P.’s
body that caused her to feel uncomfortable. From the natural and usual
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 5 of 6 sequence of Sanders’s conduct, the trial court could reasonably infer there was
sufficient evidence to conclude that when Sanders kissed J.P., he did so with
the intent of arousing or satisfying his or J.P.’s sexual desire. Sanders’s
argument to the contrary is simply a request to reweigh the evidence, which we
will not do.
[12] We note, too, that such an inference of intent does not preclude the possibility
that Sanders was also motivated to kiss J.P. in order to “facilitate future sexual
gratification.” Appellant’s Br. p. 10. As we have held in the past, simply
because the intent of later acts is clearly for sexual gratification, does not mean
that initial, so-called “boundary testing” acts of touching such as kissing are not
done with the intent to satisfy sexual desire. See Nuerge v. State, 677 N.E.2d
1043, 1049 (Ind. Ct. App. 1997), trans. denied.
Conclusion [13] Sanders’s conviction for sexual misconduct with a minor as a Level 5 felony is
supported by sufficient evidence from which the trial court reasonably
concluded that Sanders acted with the intent to arouse or satisfy sexual desire.
[14] Affirmed.
Kirsch, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020 Page 6 of 6