Opinion
21A-JV-2727
05-10-2022
D.W., Appellant-Respondent, v. State of Indiana, Appellee-Petitioner.
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Office Logansport, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Cass Circuit Court The Honorable Stephen R. Kitts, II Judge Trial Court Cause No. 09C01-1910-JD-73 09C01-2104-JD-26
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Office Logansport, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶1] The Cass Circuit Court adjudicated D.W. a delinquent child for an act that would be Level 4 child molesting if committed by an adult. D.W. appeals the court's adjudication that he is a delinquent child and raises a single issue for our review, namely, whether the State presented sufficient evidence to support the juvenile court's judgment. We affirm.
Facts and Procedural History
[¶2] In May 2019, four-year-old K.H. went to the home of one of her extended family members. Fourteen-year-old D.W., K.H.'s relative, was present as well. D.W. invited K.H. into "a bedroom" because he "wanted [K.H.] to do stuff alon[e] with him." Tr. Vol. 2 pp. 17-18. Inside the bedroom, D.W. was "standing up" and "close to [her]" while she was "sitting on the bed." Id. at 18. D.W. then "touched [K.H.'s] front," which she later identified to be her vagina. Id. at 19. He touched her vagina with "his front part," which she later identified to be his penis. Id. at 19-20.
[¶3] In October 2019, the State filed a petition alleging D.W. to be a delinquent child for acts that would be Level 3 and Level 4 felony child molesting if committed by an adult. The juvenile court held a fact-finding hearing on the State's petition in August 2021. At that hearing, K.H., who was now seven years old, testified to the May 2019 incident. She further stated that being in the courtroom with D.W. made her "nervous" and "uncomfortable" because she did not "want to get in trouble." Id. at 13, 28-29.
For reasons that are not clear, the juvenile court consolidated the State's child-molesting petition with a later-filed petition relating to D.W.'s alleged possession of marijuana. D.W. does not assert error in the juvenile court's consolidated hearing. We therefore do not consider any possible issue in that regard, and we limit our review in this appeal to the evidence presented at the hearing as it related to the child-molesting allegation.
[¶4] Following the fact-finding hearing, the court adjudicated D.W. to be a delinquent for an act that would be Level 4 child molesting if committed by an adult. After a dispositional hearing, the court ordered D.W. to be placed in a residential-treatment facility. This appeal ensued.
Discussion and Decision
[¶5] D.W. appeals his adjudication as a delinquent child and contends that the State failed to present sufficient evidence to support his adjudication. When reviewing the sufficiency of the evidence in a juvenile-adjudication appeal, we do not reweigh the evidence or judge witness credibility. B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). We consider only the evidence favorable to the judgment and the reasonable inferences supporting it. Id. "We will affirm a juvenile-delinquency adjudication if a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt." Id.
[¶6] An adult who, with a child under fourteen years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or satisfy the sexual desires of either the child or the older person, commits child molesting, as a Level 4 felony. Ind. Code § 35-42-4-3(b) (2018). D.W. asserts that the State did not prove the elements of that offense in two respects. First, D.W. contends that the State failed to show that the touching was intentional and not incidental. Second, but relatedly, D.W. argues that the State failed to show that the touching was done with a contemporaneous intent by D.W. to arouse or satisfy the sexual desires of either himself or of K.H.
[¶7] We initially address D.W.'s argument that the State failed to prove that the touching itself was an intentional touching and not merely an incidental one. And we cannot agree with D.W.'s argument. K.H. testified that D.W., after having asked her to accompany him alone into a bedroom, stood close to her while she sat on a bed and touched his penis against her vagina. Tr. Vol. 2 pp. 17-20. A reasonable fact-finder could find from K.H.'s testimony that that touching was intentional and not incidental, and D.W.'s argument to the contrary simply seeks to have this Court reweigh K.H.'s testimony, which we will not do.
[¶8] We thus turn to D.W.'s second argument on appeal: whether the State presented sufficient evidence to show that the touching was done with a contemporaneous intent by D.W. to arouse or satisfy the sexual desires of either himself or of K.H. As our Supreme Court has made clear, "[m]ere touching alone is not sufficient to constitute the crime of child molesting." Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000). Rather, the State must also demonstrate "that the act of touching was accompanied by the specific intent to arouse or satisfy sexual desires." Id. "The intent element of child molesting may be established by circumstantial evidence and may be inferred from the actor's conduct and the natural and usual sequence to which such conduct usually points." Id.
[¶9] We have recognized that alleged delinquent children are different than defendant-adults when it comes to the State's burden to prove the specific intent required for child molesting. In particular, in T.G. v. State, 3 N.E.3d 19, 24 (Ind.Ct.App. 2014), trans. denied, we held that "it is unreasonable to infer intent to satisfy or arouse sexual desire solely from the fact that [a] child intentionally touched another child's genitals" because children are known to sometimes experiment by looking at and touching each other. Thus, in T.G. we held that other circumstances must be present to demonstrate the requisite intent for an alleged delinquent child. Id.
[¶10] In T.G., we found "several circumstances" that were relevant to whether the delinquent child in that case had touched his victim with the intent to arouse or satisfy sexual desires:
First, the ages of the children are relevant. [The delinquent child] was eleven years old. He is not a very young child. [He] is significantly older than [the victim], who was only six. They cannot be considered peers. The purpose of the child molestation statute "is to prohibit the sexual exploitation of children by those with superior knowledge or experience who are therefore in a position to take advantage of children's naivety." C.D.H. v. State, 860 N.E.2d 608, 612 (Ind.Ct.App. 2007), trans. denied. Also, "'age differential is an important factor that may and should be considered' when determining a minor's criminal liability under a statute proscribing lewd or lascivious conduct with a child." Id. (quoting In re P.M., 156 Vt. 303, 592 A.2d 862, 864 (1991)). Second, [the delinquent child] had previously kissed [the victim] on the lips with an open mouth. Third, this was not the first time that he put his hand in her underwear and touched her genitals. Fourth, [he] rubbed [the victim's] genitals, he did not simply
touch them. Fifth, he told [the victim] to touch his penis, not once, but repeatedly.Id. at 25 (footnote omitted). Given all of those circumstances, we concluded that a reasonable fact-finder could find beyond a reasonable doubt that the delinquent child had touched or fondled the victim with the intent to arouse or satisfy his own sexual desires. Id. Accordingly, we affirmed the juvenile court's judgment. Id.
[¶11] However, in a subsequent case, we distinguished T.G. and held that the State's evidence was not sufficient to demonstrate the requisite intent for an alleged delinquent child. Specifically, in D.P. v. State, 80 N.E.3d 913, 916-17 (Ind.Ct.App. 2017), we stated:
Although D.W. distinguishes T.G. in his brief on appeal, he does not analogize the facts of his case to those in D.P.
One of the circumstances in T.G. is present in this case. That is, [the delinquent child] was ten years old and [the victim] was four years old, resulting in a six-year age difference. But that is where the similarities between these cases end. At the fact-finding hearing, [the victim] testified to only one incident of touching. That touching involved [the delinquent child] touching [the victim's] "hooha" and her "butt" with his "hand" while her clothes were on. Although [the victim] identified her "hooha" as her genital area on an anatomical drawing of a little girl by drawing a circle, there was no evidence of exactly where [the delinquent child had] touched [the victim], how he touched her (for example, touching or rubbing), or how long he touched her. Moreover, [the victim] did not feel the touching. And there was
no evidence of any kissing or [the delinquent child] asking [the victim] to touch him. While we acknowledge that [the victim] was a young witness and there was great difficulty in procuring her testimony, we are restricted to the evidence presented at the fact-finding hearing. And based on that evidence only, we do not believe that a reasonable factfinder could find beyond a reasonable doubt that [the delinquent child had] touched or fondled [the victim] with the intent to arouse or satisfy his sexual desires. The evidence is therefore insufficient to support the true finding for Level 4 felony child molesting.(Citations omitted.)
[¶12] The facts underlying D.W.'s adjudication are more like those in T.G. than those in D.P. Similar to the facts in T.G., here, D.W. was fourteen years old at the time of the touching, significantly older than the delinquent children in T.G. (eleven) or D.P. (ten). Indeed, in T.G. we recognized that an eleven-year-old child is "not a very young child." 3 N.E.3d at 25. Further, the age disparity between D.W. and K.H.-ten years-is more dramatic than the five-year difference in T.G. As in that case, here D.W. and K.H. "cannot be considered peers." Id. And, importantly, "[t]he purpose of the child molestation statute is to prohibit the sexual exploitation of children by those with superior knowledge or experience" and who are "in a position to take advantage of children's naivety." Id. (quotation marks omitted). That purpose is even more strongly implicated by the differences between a fourteen-year-old teenager and a four-year-old child than it was in T.G.
[¶13] Also, while there was no evidence presented here of more than the one physical touching, K.H.'s testimony-unlike the victim's testimony in D.P.-was unambiguous. She testified that D.W. had touched her "vagina" with his "penis." Tr. Vol. 2 pp. 19-20. There is also no question-again, unlike with the victim in D.P.-that K.H. was aware of the touching when it happened. Finally, D.W. had asked K.H. to accompany him alone into the bedroom where he touched her, which isolated K.H. from others immediately prior to the touching. The "natural and usual sequence to which such conduct usually points" supports the inference that D.W. acted with the specific intent required for Level 4 child molesting. Bowles, 737 N.E.2d at 1152.
[¶14] Thus, we conclude that the State presented sufficient evidence from which a reasonable fact-finder could conclude that D.W. acted with the intent to arouse or satisfy his or K.H.'s sexual desires when D.W. touched her. We therefore affirm the juvenile court's adjudication of D.W. as a delinquent child for an act that would be Level 4 child molesting if committed by an adult.
[¶15] Affirmed.
Brown, J., and Molter, J., concur.