Simmons v. State

746 N.E.2d 173
CourtIndiana Court of Appeals
DecidedMarch 15, 2001
DocketNo. 35A05-0004-CR-156
StatusPublished

This text of 746 N.E.2d 173 (Simmons v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmons v. State, 746 N.E.2d 173 (Ind. Ct. App. 2001).

Opinions

OPINION

SULLIVAN, Judge.

Appellant, Robert A. Simmons, challenges his conviction for Child Molesting, a Class A felony.1

[85]*85Upon appeal, Simmons presents the following arguments:

(1) Whether there was sufficient evidence to support the conviction;
(2) Whether the trial court erred by admitting the victim's hearsay statement; and
(3) Whether the trial court relied upon improper aggravating cireumstances in determining Simmons' sentence.

We affirm the conviction but remand for modification of the sentence in accordance with this opinion.

The facts most favorable to the jury verdict reveal that in the spring of 1998, three-year-old C.R. lived with her biological mother, Tina, and Tina's boyfriend, twenty-seven-year-old Simmons. Although C.R. lived with her mother, she had visitation with her biological father Dennis and his wife Jamie. During one of the visits, Jamie took C.R. to the zoo for a birthday party. While they walked through the zoo, C.R. "kept putting her hand between her legs [and] holding herself." Record at 230. Although Jamie assumed at first that C.R. had to use the bathroom, C.R. continued to "hold herself" even after Jamie had taken her to use the bathroom several times. Record at 230. Out of frustration, Jamie asked C.R. why she was still holding herself. According to Jamie, C .R. responded, "because Rob's hurting me." Record at 281.

Based upon C.R.'s response, Jamie and Dennis took C.R. to the hospital emergen-ey room for a physical examination. Although the attending physician did not find any physical evidence of sexual abuse, Jamie and Dennis decided to get a second opinion from pediatrician Dr. Duane Houg-endobler. As C.R.'s appointment was not for another week, C.R. was returned to Tina. On May 26, 1998, Dr. Hougendobler examined C.R. and found evidence of vaginal penetration. In particular, Dr. Hougen-dobler found that C.R.'s vagina was dilated two and one-half centimeters and there was no longer a hymen. Child protective services removed CR. from Tina's care and placed her with Tina's parents. CR. was returned to Tina's care for a few months and ultimately placed permanently with Jamie and Dennis in February of 1999. Because Jamie and Dennis observed that C.R. was experiencing emotional distress, they enrolled her in counseling with Dr. Martin Joseph Greengrass, a clinical psychologist. During the counseling sessions, C.R. consistently identified Simmons as the person who improperly touched her.

Detective Ron Hochstetler of the Huntington Police Department investigated C.R.'s allegations. Although Simmons initially denied C.R.'s allegations, during a subsequent interview on June 1, 1999, Simmons told Detective Hochstetler that "he knew why he was here" and "what it was all about." Record at 333. According to Detective Hochstetler, Simmons began to cry when the interview started and was unable to continue talking for a while. Simmons stated that he "knew he had a problem . with his behavior toward [C.R.] and that he needed help with it." Record at 389-40. Simmons also admitted that he had sexual contact with C.R., although he never specified the nature of the contact. Thereafter, ©Simmons was charged with Child Molesting as a Class A felony.

During a jury trial, C.R., apparently overwhelmed by the trial setting, had difficulty describing the incident in detail. However, she was able to express that someone named Rob had done something to her vaginal area with his finger. C.R.'s stepmother, Jamie, testified regarding the incident at the zoo and related to the jury that C.R. told her that she was holding herself because Simmons was hurting her. [86]*86Defense counsel objected, claiming that the child's statement was hearsay and moved to strike her answer. The prosecutor responded that C.R.'s answer was a statement of her then existing physical condition, an exception to the hearsay rule. The trial court overruled the objection and allowed the testimony. Although Simmons testified, denying that he had previously admitted having sexual contact with C.R., he was found guilty as charged. During the sentencing hearing the trial court found five aggravating circumstances and sentenced Simmons to the maximum term of fifty years incarceration.

I.

Sufficiency of the Evidence

Simmons challenges the sufficiency of the evidence supporting his conviction. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Davies v. State (2000) Ind.App., 730 N.E.2d 726, 739, trans. denied, petition for cert. filed. We consider only the evidence favorable to the verdict, as well as any reasonable inferences, to determine if the conviction is supported by sufficient evidence of probative value. Id.

To prove the offense as charged, the State was required to show that Simmons, who was at least twenty-one years of age, performed deviate sexual conduct with a child under fourteen years of age. See T.C. 35-42-4-3(a)(1). Deviate sexual conduct is an act involving the "penetration of the sex organ or anus of a person by an object." I.C. 35-41-1-9 (Burns Code Ed. Repl. 1998).2 A finger may be considered an object under the statute. Stewart v. State (1990) Ind., 555 N.E.2d 121, 126, overruled on other grounds by Lannan v. State (1992) Ind., 600 N.E.2d 1334. According to Simmons, although the evidence most favorable to the verdict establishes that there was an improper touching,3 it does not prove that he penetrated C.R.'s sex organ or anus. In particular, Simmons points out that while C.R. named him as the perpetrator, and indicated that he used his finger to accomplish the "bad touches," she was unable to describe the touching. Simmons further points out that Detective Hochstet-ler's testimony, that Simmons admitted having sexual contact with C.R., does not necessarily establish that he penetrated C.R.'s sex organ or anus. Finally, Simmons contends that although Dr. Hougen-dobler testified that C.R.'s vagina had been penetrated, the evidence shows that Simmons did not have access to C.R. between the time of the emergency room examination, which revealed no evidence of penetration, and Dr. Hougendobler's examination. Simmons also points out that because C.R. made subsequent complaints, which Dr. Hougendobler believed were unfounded, her initial complaints also must have been unfounded.

As Simmons indicates, Dr. Hougen-dobler's testimony was the only evidence [87]*87of penetration presented by the State.4 However, "[the fact-finder may infer penetration from cireumstantial evidence such as the physical condition of the victim soon after the incident." Pasco v. State (1990) Ind., 563 N.E.2d 587, 590. See also Page v. State (1980) 274 Ind. 264, 267, 410 N.E.2d 1304, 1307; Rowan v. State (1982) Ind., 431 N.E.2d 805, 813; Short v. State (1991) Ind.App., 564 N.E.2d 553, 559. The record reveals that Dr. Hougendobler examined C.R. on May 26, 1998, approximately one and one-half weeks after C.R. first told her stepmother that Simmons was hurting her. Following his examination, Dr.

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Bluebook (online)
746 N.E.2d 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-state-indctapp-2001.