Lawrence Dean v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 5, 2014
• Docket: 89A05-1401-CR-9
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Dec 05 2014, 5:38 am 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:

MARK I. COX GREGORY F. ZOELLER The Mark I. Cox Law Office, LLC Attorney General of Indiana Richmond, Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA LAWRENCE DEAN, ) ) Appellant-Defendant, ) ) vs. ) No. 89A05-1401-CR-9 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Gregory A. Horn, Judge Cause No. 89D02-1205-FC-35

December 5, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Lawrence Dean appeals three convictions of Class C felony child molesting.1 As there

was sufficient evidence he committed those crimes, we affirm.

FACTS AND PROCEDURAL HISTORY

In the spring of 2012, fourteen-year-old A.T. reported that her grandfather, Dean, had

touched her inappropriately from the time she was five years old until she was twelve years

old. The State charged Dean with four counts of Class C felony child molesting, with each

count covering a different year of A.T.’s life from ages nine to twelve. A jury found Dean

guilty of three counts of child molesting. The court imposed three five-year sentences and

ordered them served consecutively for an aggregate sentence of fifteen years.

DISCUSSION AND DECISION

When reviewing sufficiency of evidence to support a conviction, we consider only the

probative evidence and reasonable inferences supporting the decision. Drane v. State, 864

N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess witness

credibility and weigh the evidence to determine whether it is sufficient to support a

conviction. Id. To preserve this structure, when we are confronted with conflicting

evidence, we consider it most favorably to the ruling. Id. We affirm a conviction unless no

reasonable fact-finder could find the elements of the crime proven beyond a reasonable

doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis

of innocence; rather, the evidence is sufficient if an inference reasonably may be drawn from

it to support the decision. Id. at 147.

1 Ind. Code § 35-42-4-3(b). 2 To convict Dean of Class C felony child molesting, the State had to prove Dean, with

a child under age fourteen, “perform[ed] or submit[ted] to any fondling or touching, of either

the child or the older person, with the intent to arouse or to satisfy the sexual desires of either

the child or the older person.” Ind. Code § 35-42-4-3(b). Evidence of mere touching is not

sufficient to prove Class C felony child molesting. Bass v. State, 947 N.E.2d 456, 460 (Ind.

Ct. App. 2011), trans. denied. The State must prove the “act of touching was accompanied

by the specific intent to arouse or satisfy sexual desires.” Id. That 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.” Id.

A.T. testified Dean began touching her inappropriately when she was five or six years

old, around the time when her parents divorced. The touching would occur when she was

alone with Dean in his house. He would touch the inside and outside of her legs, her inner

thighs, her stomach, her chest, and her breasts. She estimated that this happened on twenty to

twenty-five occasions.

When A.T. was nine or ten years old, Dean tried to drag her into the bathroom to

shower with him after he told her: “If you show me yours I’ll show you mine.” (Tr. at 155.)

A.T. grabbed onto the wall to prevent Dean taking her into the bathroom. Once she broke

free of his grasp, she ran out of the house and went back to her mother’s home.

When A.T. was eleven years old she was sitting on Dean’s bed looking at pictures.

Dean pushed her back on the bed, placed his hand under her shirt, rubbed her stomach, and

attempted to move his hand up toward her breasts underneath her shirt. A.T. resisted,

3 pushing his hand away from her breasts and getting it out of her shirt. Then, Dean attempted

to pull down her pants, but she held them up, rolled off of the bed, and went outside where

her siblings were playing.

Dean claims he had no intent to arouse himself or A.T. and he touched A.T. only when

they were playing around and wrestling. But the progression of the inappropriate touching to

include an attempted shower and the attempted removal of clothing would permit a

reasonable jury to infer Dean intended to arouse or satisfy his sexual desires or those of A.T.

See, e.g., Archer v. State, 996 N.E.2d 341, 352 (Ind. Ct. App. 2005) (evidence sufficient

when Archer touched child on chest and stomach, both over and under clothing, and once put

his fingers inside her vagina), trans. denied. Accordingly, we affirm.

Affirmed.

VAIDIK, C.J., and FRIEDLANDER, J., concur.