MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 18 2018, 5:42 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick Vaiana Curtis T. Hill, Jr. Voyles Vaiana Lukemeyer Attorney General of Indiana Baldwin & Webb Indianapolis, Indiana Andrew Kobe Section Chief, Criminal Appeals Victoria L. Bailey Marion County Public Defender Agency Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
K.M., September 18, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-643 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Gary Chavers, Appellee-Petitioner. Judge Pro Tem The Honorable Geoffrey Gaither, Magistrate Trial Court Cause No. 49D09-1707-JD-1011
Barteau, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 1 of 6 Statement of the Case [1] K.M. appeals his adjudication as a juvenile delinquent based upon a true
finding for the offense of child molesting, a Level 4 felony if committed by an 1 adult. We affirm.
Issue [2] K.M. presents one issue for our review, which we restate as: whether there was
sufficient evidence to support the juvenile court’s true finding for child
molesting.
Facts and Procedural History [3] In July 2017, Tytiaira Word returned home from work to find Z.W., her five-
year-old son, in a chair with his legs in the air and with K.M., her husband’s
thirteen-year-old son, on top of him and in between Z.W.’s legs. K.M. was
holding Z.W. by the hips and performing a thrusting motion like “dry-
humping.” Tr. Vol. II, p. 11. Both boys had on basketball shorts but no shirts.
When Word asked the boys what they were doing, they jumped up. At that
point, Word could see that K.M.’s penis was erect. When questioned, Z.W.
cried and told his mother that he and K.M. were “doing nasty stuff.” Id. at 15.
[4] Based upon this incident, the State filed a delinquency petition alleging that
K.M. had committed two acts of child molesting as Level 3 felonies and two
1 Ind. Code § 35-42-4-3(b) (2015).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 2 of 6 acts of child molesting as Level 4 felonies. Following a fact-finding hearing, the
court entered not true findings on all counts except one Level 4 offense and
placed K.M. on probation.
Discussion and Decision [5] K.M. contends the State failed to prove all the necessary elements of the offense
of child molesting to support the court’s true finding. When the State seeks to
have a juvenile adjudicated a delinquent for committing an act that would be a
crime if committed by an adult, the State must prove every element of the
offense beyond a reasonable doubt. C.L. v. State, 2 N.E.3d 798, 800 (Ind. Ct.
App. 2014); see also Ind. Code § 31-37-14-1 (1997) (“A finding by a juvenile
court that a child committed a delinquent act . . . must be based upon proof
beyond a reasonable doubt.”).
[6] When reviewing on appeal the sufficiency of the evidence supporting a juvenile
adjudication, we neither reweigh the evidence nor judge the credibility of the
witnesses. Z.A. v. State, 13 N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider
only the evidence most favorable to the judgment and the reasonable inferences
therefrom, and we will affirm if the evidence and those inferences constitute
substantial evidence of probative value to support the judgment. C.L., 2 N.E.3d
at 800.
[7] In order to make a true finding of delinquency against K.M. for child molesting,
the State must have proved beyond a reasonable doubt that K.M. (1) with
Z.W., a child under fourteen years of age, (2) performed or submitted to
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 3 of 6 fondling or touching of either the child or the older person, (3) with the intent to
arouse or to satisfy the sexual desires of either the child or the older person. See
Ind. Code § 35-42-4-3(b). It seems that K.M. challenges the State’s evidence as
to both the second and third elements.
[8] First, K.M. argues that the evidence is insufficient to establish that he
performed or submitted to fondling or touching with Z.W. Initially we note
that with regard to this particular element of the offense of child molesting, the
plain language of Indiana Code section 35-42-4-3(b) requires simply a
“touching” or “fondling.”
[9] At the hearing, Word testified that she saw Z.W. in a chair with his legs in the
air and that K.M. was on top of Z.W. and in between Z.W.’s legs. Word
further testified that K.M. was holding Z.W. by the hips and performing a
thrusting motion like “dry-humping” and that K.M. had an erection. Tr. Vol.
II, p. 11. Although extremely reluctant to testify, Z.W., who was just six years
old at the time of the hearing, nevertheless eventually testified that he was
sitting in a chair and that K.M. got on top of him with K.M.’s body touching
his body. In addition, Z.W. responded affirmatively when asked if any part of
K.M.’s body was touching his “butt” when K.M. was on top of him. Id. at 50.
Z.W. also later testified that K.M.’s body part was touching his “booty.” Id. at
52. This evidence is sufficient to show that K.M. touched Z.W. See, e.g., Bass v.
State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011) (stating that Indiana Code
section 35-42-4-3(b) does not require touching of a child’s breasts or genitals but
rather requires merely touching with intent to arouse or satisfy sexual desires
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 4 of 6 and finding sufficient evidence to sustain child molesting conviction where
defendant rubbed victim’s back and sides), trans. denied.
[10] Second, K.M. asserts the evidence is insufficient to establish that the touching
or fondling was committed with the intent to arouse or satisfy his or Z.W.’s
sexual desires. Although Indiana Code section 35-42-4-3(b) requires a
touching, mere touching alone is not sufficient to constitute the crime of child
molesting. Davis v. State, 956 N.E.2d 726, 730 (Ind. Ct. App. 2011), trans.
denied. The State must also prove beyond a reasonable doubt that the
defendant’s act of touching was accompanied by the specific intent to arouse or
satisfy sexual desires. Id. The intent element 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. Id.
[11] Z.W. testified that he was in a chair, that K.M.
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), FILED this Memorandum Decision shall not be Sep 18 2018, 5:42 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick Vaiana Curtis T. Hill, Jr. Voyles Vaiana Lukemeyer Attorney General of Indiana Baldwin & Webb Indianapolis, Indiana Andrew Kobe Section Chief, Criminal Appeals Victoria L. Bailey Marion County Public Defender Agency Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
K.M., September 18, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-643 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Gary Chavers, Appellee-Petitioner. Judge Pro Tem The Honorable Geoffrey Gaither, Magistrate Trial Court Cause No. 49D09-1707-JD-1011
Barteau, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 1 of 6 Statement of the Case [1] K.M. appeals his adjudication as a juvenile delinquent based upon a true
finding for the offense of child molesting, a Level 4 felony if committed by an 1 adult. We affirm.
Issue [2] K.M. presents one issue for our review, which we restate as: whether there was
sufficient evidence to support the juvenile court’s true finding for child
molesting.
Facts and Procedural History [3] In July 2017, Tytiaira Word returned home from work to find Z.W., her five-
year-old son, in a chair with his legs in the air and with K.M., her husband’s
thirteen-year-old son, on top of him and in between Z.W.’s legs. K.M. was
holding Z.W. by the hips and performing a thrusting motion like “dry-
humping.” Tr. Vol. II, p. 11. Both boys had on basketball shorts but no shirts.
When Word asked the boys what they were doing, they jumped up. At that
point, Word could see that K.M.’s penis was erect. When questioned, Z.W.
cried and told his mother that he and K.M. were “doing nasty stuff.” Id. at 15.
[4] Based upon this incident, the State filed a delinquency petition alleging that
K.M. had committed two acts of child molesting as Level 3 felonies and two
1 Ind. Code § 35-42-4-3(b) (2015).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 2 of 6 acts of child molesting as Level 4 felonies. Following a fact-finding hearing, the
court entered not true findings on all counts except one Level 4 offense and
placed K.M. on probation.
Discussion and Decision [5] K.M. contends the State failed to prove all the necessary elements of the offense
of child molesting to support the court’s true finding. When the State seeks to
have a juvenile adjudicated a delinquent for committing an act that would be a
crime if committed by an adult, the State must prove every element of the
offense beyond a reasonable doubt. C.L. v. State, 2 N.E.3d 798, 800 (Ind. Ct.
App. 2014); see also Ind. Code § 31-37-14-1 (1997) (“A finding by a juvenile
court that a child committed a delinquent act . . . must be based upon proof
beyond a reasonable doubt.”).
[6] When reviewing on appeal the sufficiency of the evidence supporting a juvenile
adjudication, we neither reweigh the evidence nor judge the credibility of the
witnesses. Z.A. v. State, 13 N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider
only the evidence most favorable to the judgment and the reasonable inferences
therefrom, and we will affirm if the evidence and those inferences constitute
substantial evidence of probative value to support the judgment. C.L., 2 N.E.3d
at 800.
[7] In order to make a true finding of delinquency against K.M. for child molesting,
the State must have proved beyond a reasonable doubt that K.M. (1) with
Z.W., a child under fourteen years of age, (2) performed or submitted to
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 3 of 6 fondling or touching of either the child or the older person, (3) with the intent to
arouse or to satisfy the sexual desires of either the child or the older person. See
Ind. Code § 35-42-4-3(b). It seems that K.M. challenges the State’s evidence as
to both the second and third elements.
[8] First, K.M. argues that the evidence is insufficient to establish that he
performed or submitted to fondling or touching with Z.W. Initially we note
that with regard to this particular element of the offense of child molesting, the
plain language of Indiana Code section 35-42-4-3(b) requires simply a
“touching” or “fondling.”
[9] At the hearing, Word testified that she saw Z.W. in a chair with his legs in the
air and that K.M. was on top of Z.W. and in between Z.W.’s legs. Word
further testified that K.M. was holding Z.W. by the hips and performing a
thrusting motion like “dry-humping” and that K.M. had an erection. Tr. Vol.
II, p. 11. Although extremely reluctant to testify, Z.W., who was just six years
old at the time of the hearing, nevertheless eventually testified that he was
sitting in a chair and that K.M. got on top of him with K.M.’s body touching
his body. In addition, Z.W. responded affirmatively when asked if any part of
K.M.’s body was touching his “butt” when K.M. was on top of him. Id. at 50.
Z.W. also later testified that K.M.’s body part was touching his “booty.” Id. at
52. This evidence is sufficient to show that K.M. touched Z.W. See, e.g., Bass v.
State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011) (stating that Indiana Code
section 35-42-4-3(b) does not require touching of a child’s breasts or genitals but
rather requires merely touching with intent to arouse or satisfy sexual desires
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 4 of 6 and finding sufficient evidence to sustain child molesting conviction where
defendant rubbed victim’s back and sides), trans. denied.
[10] Second, K.M. asserts the evidence is insufficient to establish that the touching
or fondling was committed with the intent to arouse or satisfy his or Z.W.’s
sexual desires. Although Indiana Code section 35-42-4-3(b) requires a
touching, mere touching alone is not sufficient to constitute the crime of child
molesting. Davis v. State, 956 N.E.2d 726, 730 (Ind. Ct. App. 2011), trans.
denied. The State must also prove beyond a reasonable doubt that the
defendant’s act of touching was accompanied by the specific intent to arouse or
satisfy sexual desires. Id. The intent element 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. Id.
[11] Z.W. testified that he was in a chair, that K.M. got on top of him, and that
K.M.’s body part was touching his butt or booty. Word provided more details,
testifying that K.M. was in between Z.W.’s legs and was thrusting or humping
while holding onto Z.W.’s hips. Word also testified that K.M. had an erection.
One may reasonably infer from this evidence that K.M. acted with the intent to
arouse or satisfy his sexual desires and that he did in fact become aroused. This
evidence is sufficient to support the intent element of child molesting.
[12] K.M.’s argument that the evidence fails to support the adjudication because
Z.W. did not define the term “booty” or specify K.M.’s body part and did not
testify to K.M.’s erection is merely an invitation to reweigh the evidence and
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 5 of 6 judge witness credibility, which we will not do. See Z.A., 13 N.E.3d at 439.
Word clearly and unequivocally explained what she saw when she arrived
home from work. Although corroborated by Z.W.’s testimony, Word’s
testimony alone is sufficient to support the adjudication of delinquency in this
case. See T.G. v. State, 3 N.E.3d 19, 23 (Ind. Ct. App. 2014) (uncorroborated
testimony of a single witness may suffice to sustain delinquency adjudication),
trans. denied.
[13] Moreover, K.M. attempts to dismiss Word’s testimony as motivated by
jealousy about the relationship between K.M.’s mother and Word’s husband,
who is K.M.’s father. The trial court was informed about the animosity that
exists between Word and K.M.’s mother, and the court heard and saw Word
and K.M.’s mother testify. This is yet another invitation to judge the credibility
of the witnesses, and we cannot accept. See Z.A., 13 N.E.3d at 439.
Conclusion [14] For the foregoing reasons, we conclude the State presented sufficient evidence
beyond a reasonable doubt to establish that K.M. committed an act that, if he
were an adult, would constitute child molesting, a Level 4 felony.
[15] Affirmed.
Riley, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018 Page 6 of 6