Wise v. State

763 N.E.2d 472, 2002 Ind. App. LEXIS 187, 2002 WL 207445
CourtIndiana Court of Appeals
DecidedFebruary 11, 2002
Docket02A03-0108-CR-277
StatusPublished
Cited by8 cases

This text of 763 N.E.2d 472 (Wise 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
Wise v. State, 763 N.E.2d 472, 2002 Ind. App. LEXIS 187, 2002 WL 207445 (Ind. Ct. App. 2002).

Opinions

OPINION

ROBB, Judge.

Johnny Wise was convicted following a jury trial of child molesting, as a Class C felony. He was sentenced to the Indiana Department of Correction for five years. He now appeals his conviction. We affirm.

[474]*474Issues

Wise raises two issues for our review, which we restate as follows:

1. Whether the State presented sufficient evidence to support his convietion for child molesting as a Class C felony; and
- 2. Whether the trial court erred in refusing to permit his counsel to exercise a peremptory challenge.

Facts and Procedural History

The facts most favorable to the conviction reveal that sometime in the winter of 1999-2000, ten-year-old L.S. fell asleep on the couch in her home. Wise was L.S.'s mother's boyfriend and he lived in the home with L.S., her mother, and her two brothers. Sometime during the night, L.S. awoke to find Wise on the couch behind her and his hand underneath her clothes rubbing her vagina. She turned and saw that his eyes were closed. She pulled his hand out from under her clothes and got up to go to her room. Wise asked her what she was doing and asked that she scratch his back. L.S. did not do so, and went to her room. The next morning, L.S. told her mother what had happened. When L.S.'s mother confronted Wise, he apologized and said he had been sleeping. L.S.'s mother asked Wise to move out of the home.

Wise was subsequently charged with child molesting as a Class C felony and his case was set for jury trial. During voir dire, after questioning the initial panel of prospective jurors, the court struck two jurors for cause, the State used two peremptory challenges, and the defense used three peremptory challenges. The remainder of that panel was accepted by all parties. The accepted panel included Juror 101 Thereafter, the State began questioning a second round of prospective jurors. During the State's questioning, defense counsel requested and was granted permission to approach the bench and expressed that he had intended to excuse Juror 10 after the first round of questioning but had inadvertently failed to do so. The court allowed questioning of the see-ond round of jurors to conclude and then resumed discussion of the defense's wish to exeuse Juror 10. The court noted that Juror 10 was not excusable for cause, and disallowed Wise's late use of a peremptory challenge to excuse Juror 10. Juror 10 served on Wise's jury.

Wise was found guilty as charged, and the trial court entered judgment of convietion and sentenced Wise to the Indiana Department of Correction for five years. Additional facts will be provided as necessary.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

Our standard of review for sufficiency claims is well settled. We will not reweigh the evidence or assess the credibility of witnesses. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdiet and will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Farris v. State, 753 N.E.2d 641, 647 (Ind.2001).

[475]*475B. Evidence of Intent

The charging information filed against Wise alleges that:

Sometime between the period of time between the 25th day of December, 1999 and the 15th day of May, 2000, in the County of Allen and in the State of Indiana, said defendant, Johnny Wise, did perform or submit to fondling or touching with [L.S.], a child who was then under fourteen (14) years of age, with the intent of arousing the sexual desires of [L.S.] or Johnny Wise.

Appendix at 18. The statute defining the crime of child molesting reads, in pertinent part, as follows:

A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony.

Ind.Code § 85-42-4-3(b). Wise alleges that the State did not prove by sufficient evidence his intent to arouse his or L.S.'s sexual desires.

The element of intent of child molesting may be established by cireum-stantial evidence and inferred from the actor's conduct and the natural and usual sequence to which such conduct usually points. Cruz Angeles v. State, 751 N.E.2d 790, 797 (Ind.Ct.App.2001), trans. denied. "The intent to arouse or satisfy sexual desires may be inferred from evidence that the accused intentionally touched a child's genitals." Lockhart v. State, 671 N.E.2d 893, 903 (Ind.Ct.App.1996).

L.S. testified at Wise's trial that she fell asleep alone on the couch in her family's home watching television. When she awoke, Wise was on the couch with her and his hand was under her shorts and underpants, touching her vagina. She testified that he was moving his hand. She moved his hand and got up from the couch, and Wise asked her to seratch his back. L.S. did not do so, and she went to her room. The next morning, she told her mother what had happened.

Wise contends that because the touching did not lead to any other physical contact, because he did not threaten or warn L.S. not to tell anyone what had happened, and because L.S. did not seem to be afraid or traumatized by the experience, the evidence is insufficient to establish intent to gratify sexual desires. We disagree. We have found sufficient evidence to support a finding of touching with intent to satisfy sexual desires where a defendant put his arm around the shoulder of a child and let his hand hang, touching her breast, and where he placed his hand on the shoulder of another child and then on her breast. Pedrick v. State, 593 N.E.2d 1213, 1220 (Ind.Ct.App.1992). We have found sufficient evidence to support a finding of touching with intent to satisfy sexual desires where a defendant touched a child's breasts over her t-shirt eight to twelve times. Cruz Angeles, 751 N.E.2d at 798. Wise rubbed L.S's vagina. The natural and usual sequence to which such action points is gratification of sexual desires. That nothing further happened between Wise and LS. is largely due to L.S.s actions in removing Wise's hand and leaving the couch. Moreover, the crime was complete when Wise rubbed L.S.'s vagina. We need not infer that anything further was intended to happen. The evidence was sufficient to support Wise's conviction.

II. Jury Selection

Whether to exeuse a juror for cause rests within the sound discretion of the trial court, and we will sustain the trial [476]*476court's decision unless it is illogical or arbitrary. Joyner v. State, 736 N.E.2d 232, 238 (Ind.2000). The right of an accused to peremptory challenges is granted by Indiana Code § 85-37-1-3.

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Wise v. State
763 N.E.2d 472 (Indiana Court of Appeals, 2002)

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Bluebook (online)
763 N.E.2d 472, 2002 Ind. App. LEXIS 187, 2002 WL 207445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wise-v-state-indctapp-2002.