Lonnell Brisbon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 9, 2018
• Docket: 49A02-1711-CR-2707
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 09 2018, 8:48 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Edgar Curtis T. Hill, Jr. J. Edgar Law Offices, Prof. Corp. Attorney General of Indiana Indianapolis, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lonnell Brisbon, May 9, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1711-CR-2707 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff. Hawkins, Judge Trial Court Cause Nos. 49G05-1604-F1-15800 49G05-1511-F6-40536

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2707 | May 9, 2018 Page 1 of 5 Case Summary [1] In October of 2017, Lonnell Brisbon was convicted of Level 1 felony child

molesting, Level 1 felony attempted child molesting, and Level 4 felony child

molesting. On appeal, Brisbon challenges his convictions for Level 1 felony

child molesting and attempted child molesting, arguing that the State failed to

prove that he was at least twenty-one years old when he committed the

offenses. Concluding otherwise, we affirm.

Facts and Procedural History [2] On April 4, 2016, twelve-year-old S.S. was watching a movie with her mother,

sister, and twenty-five-year-old Brisbon. While watching the movie, S.S.’s

mother sat on the couch and Brisbon, S.S., and her sister were laying on an air

mattress. S.S. was positioned between Brisbon and her sister. At some point

after the movie, S.S. fell asleep.

[3] S.S. was awakened during the middle of the night by Brisbon pulling down her

pants and underwear. After Brisbon pulled down her pants, S.S. felt his penis

against her back. Brisbon touched S.S. between the lips of her vagina with two

of his fingers. He stuck his penis in the crack of her buttocks and between the

lips of her vagina. He moved his penis back and forth until he ejaculated on

S.S.’s back. At some point during the encounter, S.S. attempted to move closer

to and wake her sister, but Brisbon pulled her back towards him. Afterward,

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2707 | May 9, 2018 Page 2 of 5 Brisbon put his hand around S.S.’s throat and told her that if she told anyone,

“he can run away like he always do.” Tr. Vol. II, p. 76.

[4] The next day, S.S. reported Brisbon’s actions to a group of friends and a

teacher. The teacher reported the conduct to the police. Later that day, S.S.

was taken to the hospital for a forensic examination. While at the hospital, S.S.

reported that she was still experiencing pain in her “butt.” Tr. Vol. II, p. 79.

The forensic nurse conducting the examination observed a laceration at the

base of S.S.’s vaginal opening and abrasions on both sides of the laceration near

the opening of S.S.’s vaginal canal. Forensic testing also revealed Brisbon’s

seminal fluid on S.S.’s underwear in two areas.

[5] On April 27, 2016, the State charged Brisbon with two counts of Level 1 felony

child molesting, Level 1 felony attempted child molesting, and Level 4 felony

child molesting. Following a bench trial, the trial court found Brisbon guilty of

(1) one count of Level 1 felony child molesting, (2) the included attempt of the

other Level 1 felony child molesting count, and (3) Level 4 felony child

molesting. The trial court found Brisbon not guilty of the remaining Level 1

felony attempted child molesting charge. On November 2, 2017, the trial court

sentenced Brisbon to an aggregate thirty-two year sentence.

Discussion and Decision [6] Brisbon contends that the evidence is insufficient to sustain his convictions for

Level 1 felony child molesting and attempted child molesting.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2707 | May 9, 2018 Page 3 of 5 When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict.… Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt.… The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

quotations omitted). “In essence, we assess only whether the verdict could be

reached based on reasonable inferences that may be drawn from the evidence

presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

original). Upon review, appellate courts do not reweigh the evidence or assess

the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

2002).

Indiana code section 35-42-4-3(a)(1) provides that “[a] person who, with a child

under fourteen (14) years of age, knowingly or internally performs or submits to

sexual intercourse or other sexual conduct … [and is] at least twenty-one (21)

years of age” commits Level 1 felony child molesting. In challenging his

convictions, Brisbon does not attack the sufficiency of the evidence to prove

that he committed or attempted to commit child molestation. He argues only

that the State failed to prove that he was at least twenty-one years old at the

time. We disagree. State’s Exhibit 48, a certified copy of the search warrant for

the person of Brisbon, which was admitted into evidence without objection, lists

Brisbon’s birthdate as November 11, 1990. This evidence is sufficient to prove

that Brisbon was twenty-five years old on the date in question. See Staton v.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2707 | May 9, 2018 Page 4 of 5 State, 853 N.E.2d 470, 475 (Ind. 2006) (providing that “[t]he age of a defendant

should be an easy element to prove,” and the State may establish the

defendant’s age through documentary evidence, other witnesses, or through

public records).

[7] The judgment of the trial court is affirmed.

Baker, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-CR-2707 | May 9, 2018 Page 5 of 5