MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
FILED Aug 09 2024, 9:44 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana M.A., Appellant-Respondent
v.
State of Indiana, Appellee-Petitioner
August 9, 2024 Court of Appeals Case No. 24A-JV-623 Appeal from the Marion Superior Court The Honorable Peter P. Haughan, Magistrate Trial Court Cause No. 49D15-2307-JD-005971
Memorandum Decision by Judge Felix Judges Riley and Kenworthy concur.
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 1 of 7 Felix, Judge.
Statement of the Case [1] M.A. placed his 10-year-old cousin on his bed, pulled his and her pants down,
and molested her. The trial court found M.A. to be delinquent for having
committed what would be child molesting if committed by an adult. In this
appeal, M.A. contends the State presented insufficient evidence to support his
juvenile adjudication.
[2] We affirm.
Facts and Procedural History [3] In 2022, then 16-year-old M.A. was living in Indianapolis, Indiana, with his
parents; his siblings; one of his cousins; and that cousin’s family, including the
cousin’s 10-year-old daughter K.C. One day in December 2022, M.A. and
K.C., along with their respective siblings, were home while the adults were out.
M.A. asked K.C., who was in the living room, to come to his bedroom. Once
K.C. was in his room, M.A. asked her to share a phone app with her friends so
that M.A. could increase his chances of winning a pair of wireless headphones
through a promotional advertisement. K.C. did so and then started to leave
M.A.’s room.
[4] Before K.C. left the room, M.A. asked her for another favor. As soon as K.C.
agreed, M.A. closed his bedroom door, laid K.C. face down on his bed, pulled
his and K.C.’s pants down, and put his penis between K.C.’s “back private
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 2 of 7 thing.” Tr. Vol. II at 24. K.C. felt pain and told M.A. to stop, which he did.
M.A. instructed K.C. not to tell anyone what happened. K.C. did not disclose
M.A.’s actions until after she and her family moved out of M.A.’s family’s
home.
[5] In July 2023, the State filed a delinquency petition alleging M.A. had
committed child molesting as a Level 3 felony1 if committed by an adult. At the
evidentiary hearing on this petition, K.C. testified that M.A. “put . . . his front
private on my back private thing,” Tr. Vol. II at 24, and that M.A.’s “front
part” went “[i]n between the lines” of her “back part,” id. at 41. K.C. testified
that “it hurt” when he did this, id. at 26.
[6] K.C. was unable to better explain “back part” or “back private thing”: K.C.
testified, “I don’t know how to describe it.” Tr. Vol. II at 27. When presented
with an illustration of an unclothed girl, K.C. circled the entire buttocks area of
the image and identified that area as “back part on this body.” Id. at 27; Ex.
Vol. I at 4. K.C. described M.A.’s “front private” as a penis. Tr. Vol. II at 27–
28; Ex. Vol. I at 6. On recross examination, the following exchange occurred:
[Defense Counsel]: You said your back private part is- part of that is the part that sticks out what we call your butt. What do you call that part that sticks out that you sit on? What do you call that?
1 Ind. Code § 35-42-4-3(a).
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 3 of 7 [K.C.]: Mm, we don’t have a name to call that.
[Defense Counsel]: Ok. But the soft part that sticks out of the back end of your body, that’s what you sit on, is that part of the back, what you call the back private, that’s what you told me, is that the back private also?
[K.C.]: Yes.
Tr. Vol. II at 42.
[7] When the State asked K.C. if M.A.’s penis “went inside your body, touched
your body, or something else,” K.C. responded, “Touch my body.” Tr. Vol. II
at 26. In describing the event, K.C. said, “When he put it, it hurts. So like, I, I,
I actually didn’t know what to do. Um So um um after a little bit that I didn’t
know what to do, um I, I stopped, I said stop and put on my pants.” Id. at 28.
K.C. further testified that after she told M.A. to stop, he told her “not to tell
anybody because he was gonna go to jail and at jail they do the same thing he
was, he was doing to me.” Id. at 29.
[8] The juvenile court ultimately determined M.A. had committed child molesting
as a Level 3 felony if committed by an adult, adjudicated M.A. a delinquent,
and placed M.A. on probation until further review. This appeal ensued.
Discussion and Decision [9] M.A. challenges the sufficiency of the evidence supporting his juvenile
adjudication.
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 4 of 7 When reviewing sufficiency claims in the special context of a juvenile adjudication, such as here, “we do not reweigh the evidence or judge witness credibility,” but appraise “only the evidence favorable to the judgment and the reasonable inferences supporting it.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018) (citing K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006)). We will affirm a juvenile adjudication “if a reasonable trier of fact could conclude that the [respondent] was guilty beyond a reasonable doubt.” Id. (citing Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993)).
A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).
[10] To support a juvenile adjudication for child molesting as a Level 3 felony under
Indiana Code section 35-42-4-3(a), the State had to prove beyond a reasonable
doubt that M.A., with K.C. who was less than 14 years old, knowingly or
intentionally performed or submitted to sexual intercourse or other sexual
conduct. M.A. argues only that the evidence was insufficient to establish that
“other sexual conduct” occurred.2 “Other sexual misconduct,” as used in
Indiana Code section 35-42-4-3(a), “means an act involving . . . a sex organ of
one (1) person and the mouth or anus of another person; or . . . the penetration
of the sex organ or anus of a person by an object.” I.C. § 35-31.5-2-221.5.
[11] “[P]roof of the slightest penetration of the sex organ, including penetration of
the external genitalia, is sufficient to demonstrate a person performed other
sexual misconduct with a child.” Boggs v. State, 104 N.E.3d 1287, 1289 (Ind.
2 The State did not allege or attempt to prove at trial that “sexual intercourse” occurred.
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 5 of 7 2018). Although proof of anal penetration may not be required to support a
child molesting conviction, Downey v. State, 726 N.E.2d 794, 798 (Ind. Ct. App.
2000) (citing Crabtree v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
FILED Aug 09 2024, 9:44 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana M.A., Appellant-Respondent
v.
State of Indiana, Appellee-Petitioner
August 9, 2024 Court of Appeals Case No. 24A-JV-623 Appeal from the Marion Superior Court The Honorable Peter P. Haughan, Magistrate Trial Court Cause No. 49D15-2307-JD-005971
Memorandum Decision by Judge Felix Judges Riley and Kenworthy concur.
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 1 of 7 Felix, Judge.
Statement of the Case [1] M.A. placed his 10-year-old cousin on his bed, pulled his and her pants down,
and molested her. The trial court found M.A. to be delinquent for having
committed what would be child molesting if committed by an adult. In this
appeal, M.A. contends the State presented insufficient evidence to support his
juvenile adjudication.
[2] We affirm.
Facts and Procedural History [3] In 2022, then 16-year-old M.A. was living in Indianapolis, Indiana, with his
parents; his siblings; one of his cousins; and that cousin’s family, including the
cousin’s 10-year-old daughter K.C. One day in December 2022, M.A. and
K.C., along with their respective siblings, were home while the adults were out.
M.A. asked K.C., who was in the living room, to come to his bedroom. Once
K.C. was in his room, M.A. asked her to share a phone app with her friends so
that M.A. could increase his chances of winning a pair of wireless headphones
through a promotional advertisement. K.C. did so and then started to leave
M.A.’s room.
[4] Before K.C. left the room, M.A. asked her for another favor. As soon as K.C.
agreed, M.A. closed his bedroom door, laid K.C. face down on his bed, pulled
his and K.C.’s pants down, and put his penis between K.C.’s “back private
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 2 of 7 thing.” Tr. Vol. II at 24. K.C. felt pain and told M.A. to stop, which he did.
M.A. instructed K.C. not to tell anyone what happened. K.C. did not disclose
M.A.’s actions until after she and her family moved out of M.A.’s family’s
home.
[5] In July 2023, the State filed a delinquency petition alleging M.A. had
committed child molesting as a Level 3 felony1 if committed by an adult. At the
evidentiary hearing on this petition, K.C. testified that M.A. “put . . . his front
private on my back private thing,” Tr. Vol. II at 24, and that M.A.’s “front
part” went “[i]n between the lines” of her “back part,” id. at 41. K.C. testified
that “it hurt” when he did this, id. at 26.
[6] K.C. was unable to better explain “back part” or “back private thing”: K.C.
testified, “I don’t know how to describe it.” Tr. Vol. II at 27. When presented
with an illustration of an unclothed girl, K.C. circled the entire buttocks area of
the image and identified that area as “back part on this body.” Id. at 27; Ex.
Vol. I at 4. K.C. described M.A.’s “front private” as a penis. Tr. Vol. II at 27–
28; Ex. Vol. I at 6. On recross examination, the following exchange occurred:
[Defense Counsel]: You said your back private part is- part of that is the part that sticks out what we call your butt. What do you call that part that sticks out that you sit on? What do you call that?
1 Ind. Code § 35-42-4-3(a).
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 3 of 7 [K.C.]: Mm, we don’t have a name to call that.
[Defense Counsel]: Ok. But the soft part that sticks out of the back end of your body, that’s what you sit on, is that part of the back, what you call the back private, that’s what you told me, is that the back private also?
[K.C.]: Yes.
Tr. Vol. II at 42.
[7] When the State asked K.C. if M.A.’s penis “went inside your body, touched
your body, or something else,” K.C. responded, “Touch my body.” Tr. Vol. II
at 26. In describing the event, K.C. said, “When he put it, it hurts. So like, I, I,
I actually didn’t know what to do. Um So um um after a little bit that I didn’t
know what to do, um I, I stopped, I said stop and put on my pants.” Id. at 28.
K.C. further testified that after she told M.A. to stop, he told her “not to tell
anybody because he was gonna go to jail and at jail they do the same thing he
was, he was doing to me.” Id. at 29.
[8] The juvenile court ultimately determined M.A. had committed child molesting
as a Level 3 felony if committed by an adult, adjudicated M.A. a delinquent,
and placed M.A. on probation until further review. This appeal ensued.
Discussion and Decision [9] M.A. challenges the sufficiency of the evidence supporting his juvenile
adjudication.
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 4 of 7 When reviewing sufficiency claims in the special context of a juvenile adjudication, such as here, “we do not reweigh the evidence or judge witness credibility,” but appraise “only the evidence favorable to the judgment and the reasonable inferences supporting it.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018) (citing K.S. v. State, 849 N.E.2d 538, 543 (Ind. 2006)). We will affirm a juvenile adjudication “if a reasonable trier of fact could conclude that the [respondent] was guilty beyond a reasonable doubt.” Id. (citing Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993)).
A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).
[10] To support a juvenile adjudication for child molesting as a Level 3 felony under
Indiana Code section 35-42-4-3(a), the State had to prove beyond a reasonable
doubt that M.A., with K.C. who was less than 14 years old, knowingly or
intentionally performed or submitted to sexual intercourse or other sexual
conduct. M.A. argues only that the evidence was insufficient to establish that
“other sexual conduct” occurred.2 “Other sexual misconduct,” as used in
Indiana Code section 35-42-4-3(a), “means an act involving . . . a sex organ of
one (1) person and the mouth or anus of another person; or . . . the penetration
of the sex organ or anus of a person by an object.” I.C. § 35-31.5-2-221.5.
[11] “[P]roof of the slightest penetration of the sex organ, including penetration of
the external genitalia, is sufficient to demonstrate a person performed other
sexual misconduct with a child.” Boggs v. State, 104 N.E.3d 1287, 1289 (Ind.
2 The State did not allege or attempt to prove at trial that “sexual intercourse” occurred.
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 5 of 7 2018). Although proof of anal penetration may not be required to support a
child molesting conviction, Downey v. State, 726 N.E.2d 794, 798 (Ind. Ct. App.
2000) (citing Crabtree v. State, 547 N.E.2d 286, 291 (Ind. Ct. App. 1989)), trans.
denied, “for an act to ‘involve’ the anus, there must be contact with the anus,”
id. (citing Knowlton v. State, 178 Ind.App. 420, 427 n.4, 382 N.E.2d 1004, 1009
n.4 (1978)). “[A] detailed anatomical description of penetration is unnecessary
. . . .” Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), on reh’g (May 2, 1997).
[12] In Downey v. State, this court held that the victim’s testimony that Downey had
rubbed his penis up and down between her “butt cheeks,” 726 N.E.2d at 797,
was “insufficient to permit a jury to infer beyond a reasonable doubt that
Downey engaged in an act involving his penis and [the victim]’s anus,” id. at
798. The victim in Downey did not testify that Downey’s acts caused her pain.
See id. at 797–98.
[13] By contrast, in Wisneskey v. State, the victim “testified that Wisneskey stuck his
‘private in [T.L.]’s butt’” and “explained that Wisneskey’s ‘private’ is ‘[t]he
thing he pees out of.’” 736 N.E.2d 763, 765 (Ind. Ct. App. 2000) (alterations in
original). The victim further “testified that this act hurt him and lasted three to
five minutes.” Id. This court concluded in relevant part that “T.L.’s testimony
that it hurt when Wisneskey stuck his penis in his ‘butt,’ can reasonably lead to
the inference that the pain was the result of the child being sodomized.” Id.
[14] Unlike the victim in Downey and like the victim in Wisneskey, K.C. testified that
M.H. caused her pain when he put his penis between her “back private.” Also
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 6 of 7 like the victim in Wisneskey, K.C. testified she told M.A. to stop “after a little
bit,” indicating that some time passed before M.A. removed his penis from
K.C.’s “back private.” Also, M.A. told K.C. that if he went to prison other
inmates would do to him what he was doing to M.A. The juvenile court could
have reasonably inferred from this evidence that M.A. at least slightly
penetrated K.C.’s anus or otherwise engaged in an act involving his penis and
K.C.’s anus. See Wisneskey, 736 N.E.2d at 765; Hale v. State, 128 N.E.3d 456,
460–63 (Ind. Ct. App. 2019). In light of the foregoing, we cannot say the State
failed to present sufficient evidence to support M.A.’s juvenile adjudication,
and we affirm that adjudication.
[15] Affirmed.
Riley, J., and Kenworthy, J., concur.
ATTORNEYS FOR APPELLANT Talisha R. Griffin Indianapolis, Indiana Peter Laramore Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Memorandum Decision 24A-JV-623 | August 9, 2024 Page 7 of 7