N.O. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 13, 2013
• Docket: 71A03-1209-JV-409
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Mar 13 2013, 8:45 am 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 F. JAMES GREGORY F. ZOELLER Anderson, Agostino & Keller P.C. Attorney General of Indiana South Bend, Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

N.O., ) ) Appellant-Respondent, ) ) vs. ) No. 71A03-1209-JV-409 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )

APPEAL FROM THE ST. JOSEPH PROBATE COURT The Honorable Peter J. Nemeth, Judge The Honorable Harold E. Brueseke, Magistrate Cause No. 71J01-1203-JD-153

March 13, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge In this case, N.O. was adjudicated a delinquent child after the trial court made a

true finding that he committed the act of Battery,1 a class B misdemeanor, if committed

by an adult. N.O. claims that “based on the testimony of the only witness, it was

physically impossible for N.O. to have touched [the victim] in a rude, insolent, or angry

manner.” Appellant’s Br. p. 2.

Notwithstanding this contention, we conclude that N.O.’s act of approaching the

victim and rubbing his penis against her leg, even though both he and the victim were

clothed, supports the trial court’s finding of delinquency.

FACTS

Sometime between August 1, 2010, and February 28, 2012, N.O., who was born in

June 1999, was watching a movie at home in Mishawaka with his brother. His two

sisters, E.O. and K.O., were playing together in another room. At some point, N.O. was

sitting in front of the television, masturbating. K.O. was sitting on a couch next to nine-

year-old E.O. N.O. stood up, put his penis back in his pants, walked over to E.O., and

rubbed his penis against her leg.

On April 4, 2012, the State filed a petition alleging that N.O. was a delinquent

child for committing an act that would have been battery if committed by an adult.

Following a fact-finding hearing on May 1, 2012, the juvenile court entered a finding of

delinquency against N.O. He now appeals.

1 Ind. Code § 35-42-2-1. 2 DISCUSSION AND DECISION

N.O. claims that the adjudication must be set aside because the State failed to

prove that he touched E.O. in a “rude, insolent, or angry manner” as required under

Indiana Code section 35-42-2-1(a). N.O. also maintains that the adjudication cannot

stand because both he and E.O. were clothed when he committed the act.

On review of a juvenile adjudication, we apply the same sufficiency standard used

in criminal cases. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001). We do not

reweigh evidence or judge credibility of witnesses. D.R. v. State, 729 N.E.2d 597, 599

(Ind. Ct. App. 2000). Instead we look only to the evidence and reasonable inferences

therefrom that support the determination. Id. A conviction or a juvenile adjudication

may be sustained on appeal on the uncorroborated testimony of a single witness.

Gregory v. State, 885 N.E.2d 697, 704 (Ind. Ct. App. 2008). Moreover, a conviction may

be sustained on circumstantial evidence alone so long as the circumstantial evidence

supports a reasonable inference of guilt. Gonalez v. State, 908 N.E.2d 338, 340 (Ind. Ct.

App. 2009).

We will affirm the juvenile court’s judgment when there is evidence of probative

value from which a reasonable trier of fact could find the respondent delinquent beyond a

reasonable doubt. D.H. v. State, 932 N.E.2d 236, 238 (Ind. Ct. App. 2010). Reversal is

required only when reasonable persons would not be able to form inferences as to each

material element of the offense. Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct. App.

2011).

3 A person may be convicted of battery, a class B misdemeanor, if the State proves

beyond a reasonable doubt that: 1) the defendant; 2) knowingly or intentionally; 3)

touched another person; 4) in a rude, insolent, or angry manner. I.C. § 35-42-2-1(a)(1).

In construing this statute, it has been held that any touching, however slight, may

constitute an “assault and battery.” Shaw v. State, 239 Ind. 248, 250, 156 N.E.2d 381,

382 (1959).

As discussed above, N.O. approached E.O. while she was sitting on the couch and

touched her leg with his penis. Although N.O. maintains that the State failed to prove

that his action constituted a rude or angry touching, we think it was reasonable for the

juvenile court, as the fact finder, to conclude to the contrary. In our view, N.O.’s act of

touching E.O. with his penis is the embodiment of a rude, insolent, or angry act in

accordance with Indiana Code section 35-42-2-1(a). As a result, N.O.’s challenge to the

sufficiency of the evidence fails on this basis.

As noted above, N.O. also argues that the adjudication must be set aside because

both he and E.O. were clothed when he committed the act. Notwithstanding this claim,

both our Supreme Court and this court have determined that wearing apparel is so

intimately connected with the person as to be regarded in a case of battery as part of the

person. Stokes v. State, 233 Ind. 10, 13, 115 N.E.2d 442, 443 (1953); see also K.D. v.

State, 754 N.E.2d 36, 40 (Ind. Ct. App. 2001) (same). As a result, we conclude that the

evidence presented was sufficient to support N.O.’s juvenile delinquency adjudication.

4 The judgment of the trial court is affirmed.

RILEY, J., and BARNES, J., concur.