D.H. v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    FILED
    regarded as precedent or cited before any                                Jun 12 2018, 9:32 am
    court except for the purpose of establishing                                  CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                      Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    R. Patrick Magrath                                       Curtis T. Hill, Jr.
    Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
    Madison, Indiana                                         Lyubov Gore
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    D.H.,                                                    June 12, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    36A01-1708-JV-2033
    v.                                               Appeal from the Jackson Superior
    Court
    State of Indiana,                                        The Honorable Bruce Allan
    Appellee-Plaintiff.                                      MacTavish, Judge
    Trial Court Cause No.
    36D02-1609-JD-55
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018              Page 1 of 7
    Statement of the Case
    [1]   D.H. appeals his adjudication as a delinquent child for committing three acts
    that would be Level 4 felony child molesting if committed by an adult. He
    argues that the juvenile court did not properly obtain jurisdiction and that there
    is insufficient evidence to support the adjudication. Concluding that the
    juvenile court properly obtained jurisdiction and that there is sufficient evidence
    to support the juvenile delinquency adjudication, we affirm the juvenile court.
    [2]   We affirm.
    Issues
    1.       Whether the juvenile court properly obtained jurisdiction.
    2.       Whether there is sufficient evidence to support D.H.’s
    adjudication as a delinquent child.
    Facts
    [3]   The facts most favorable to the adjudication reveal that M.I. (“Mother”) has
    three children. Son D.H., who was born in 2003, lives with Mother and her
    current husband in Seymour, Indiana. Daughters, S.B., who was born in 2004,
    and J.B., who was born in 2006, live with their Father in Florida and visit
    Mother during school breaks. During one of the girls’ visits in 2014, then-
    eleven-year-old D.H. inappropriately touched then-eight-year-old J.B. D.H.
    “was curious and was not sure if [the touching] was right or not.” (Ex. Vol. at
    107).
    Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018   Page 2 of 7
    [4]   Two years later, while the girls were visiting their Mother in June 2016, then-
    thirteen-year-old D.H. went into then-ten-year-old J.B.’s bedroom at night and
    used his hand and “private part” to touch J.B.’s “private part.” (Tr. 42). D.H.
    inappropriately touched J.B. on more than one occasion.
    [5]   In July 2016, J.B. fell asleep watching television in her bedroom. When she
    woke up at approximately 1:00 a.m., D.H. was next to her in the bed. D.H.
    pulled J.B.’s shorts down to her knees and moved his hand up and down on
    J.B.’s “private part.” (Tr. 37). D.H. also touched J.B.’s “private part” with his
    “private part,” as he had on other occasions. (Tr. 37).
    [6]   Mother entered J.B.’s bedroom, noticed her two children under the covers, and
    asked D.H. what he was doing. He responded that he was watching television.
    When Mother told D.H. to watch television in his own room, D.H. responded
    that he did not want to do that. Mother, who “knew something was wrong,”
    pulled back the covers of the bed and discovered J.B. and D.H. Both had their
    shorts down to their knees, their genitals were exposed, and D.H. may have had
    an erection. (Tr. 38). Mother immediately contacted the police.
    [7]   Following an investigation, D.H. was removed from Mother’s home and placed
    with his grandparents. In September 2016, the State filed a petition alleging
    that D.H. was a delinquent child. A detailed three-page probable cause
    affidavit was filed with the petition. The evidence presented at a hearing on the
    petition revealed that D.H. had accessed and watched a pornographic cartoon
    website before the July 2016 incident involving J.B. After the hearing, the
    Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018   Page 3 of 7
    juvenile court adjudicated D.H. to be a delinquent child. He now appeals the
    adjudication.
    Decision
    [8]   D.H. appeals his adjudication as a delinquent child for committing three acts
    that would be Level 4 felony child molesting if committed by an adult. He
    argues that the juvenile court did not properly obtain jurisdiction and that there
    is insufficient evidence to support the adjudication. We address each of his
    contentions in turn.
    1.       Jurisdiction
    [9]   D.H. first contends that the juvenile court failed to follow the procedural steps
    necessary to obtain jurisdiction. He specifically refers to the jurisdictional
    requirement that the prosecutor make a preliminary inquiry into the case before
    filing a delinquency petition. 1 See IND. CODE § 31-37-8-1(c). Generally,
    noncompliance with this procedural prerequisite precludes the juvenile court’s
    assumption of jurisdiction over the juvenile. Matter of C.K., 
    695 N.E.2d 601
    ,
    603 (Ind. Ct. App. 1998), trans. denied. However, where, as here, the child has
    committed a serious adult crime, inquiry by the court into further social history
    is unnecessary and not required by the statute defining preliminary inquiry.
    1
    A preliminary inquiry is an informal investigation into the facts and circumstances of the case. IND. CODE §
    31-37-8-2. Whenever practicable, it should include the child’s background, current status, and school
    performance. 
    Id. If the
    child has been detained, the preliminary inquiry should include efforts made to
    prevent removal of the child, whether it is in the best interest of the child to be removed, and whether
    remaining in the home would be contrary to the health and welfare of the child. 
    Id. Court of
    Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018              Page 4 of 7
    Collins v. State, 
    540 N.E.2d 85
    , 87 (Ind. Ct. App. 1989), trans. denied. Because
    D.H. was alleged to be a delinquent child based upon an act that would
    constitute a serious crime if committed by an adult, no further inquiry in
    addition to that contained in the probable cause affidavit was necessary. See 
    id. The juvenile
    court properly obtained jurisdiction over this case.
    2.      Sufficiency of the Evidence
    [10]   D.H. also argues that there is insufficient evident to support his adjudication as
    a delinquent child. Although juvenile adjudications are not criminal matters,
    when the State petitions to have a child adjudicated to be a delinquent child for
    an act that would be a crime if committed by an adult, due process requires the
    State to prove its case beyond a reasonable doubt. S.M. v. State, 
    74 N.E.3d 250
    ,
    253 (Ind. Ct. App. 2017). When reviewing whether the State’s evidence was
    sufficient to meet its burden, our standard is familiar. 
    Id. We view
    the facts
    and the reasonable inferences from them in the light most favorable to the true
    finding. 
    Id. We neither
    reweigh the evidence nor re-evaluate witness
    credibility. 
    Id. Rather, we
    will affirm unless no reasonable fact-finder could
    have found the elements of the crime proven beyond a reasonable doubt. 
    Id. [11] To
    sustain the true finding that D.H. committed acts that would constitute
    Level 4 felony child molesting if committed by an adult, the State was required
    to prove beyond a reasonable doubt that D.H., with a child under fourteen
    years of age, J.B., performed or submitted to fondling or touching with the
    intent to arouse or satisfy his sexual desires. See IND. CODE § 35-42-4-3. This
    Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018   Page 5 of 7
    Court has previously pointed out that the child molestation statute does not
    contain a minimum age for the perpetrator of the offense. In State v. J.D., 
    701 N.E.2d 908
    , 910 (Ind. Ct. App. 1998), trans. denied, we concluded the
    “Legislature intended that the child molesting would apply to offenders
    regardless of their age and would even apply to offenders who f[e]ll within the
    protected age group set forth in the statute.”2
    [12]   D.H. challenges his adjudication as a delinquent child. Specifically, he
    contends that there is insufficient evidence that he had the intent to arouse or
    satisfy his sexual desires. Rather, according to D.H., “Indiana should not make
    children into criminals for peer exploration.” (D.H.’s Br. at 16).
    [13]   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” given that
    children may experiment by looking at and touching another child’s genitals.
    Accordingly, we explained that other circumstances must be present to indicate
    such intent. 
    Id. [14] For
    example, in T.G., we found “several circumstances” that were relevant to
    whether T.G., who was male, had touched the female victim with the intent to
    arouse or satisfy his sexual desires. 
    Id. at 25.
    First, we found that the ages of
    2
    We decline D.H.’s request that we “review and revise [our] position” that minors under the age of fourteen
    can be adjudged to be juvenile delinquents pursuant to the child molesting statute. (D.H.’s Br. 17).
    Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018             Page 6 of 7
    the children were relevant. 
    Id. T.G., who
    was eleven years old, was
    significantly older than the six-year-old victim, and they could not be
    considered to be peers. 
    Id. We also
    noted the extent of the conduct as well as
    the history of similar conduct were both relevant as well. 
    Id. For example,
    T.G. had previously kissed the victim on the lips with an open mouth, put his
    hand in her underwear, and touched her genitals. 
    Id. In addition,
    T.G. had not
    simply touched the victim’s genitals, he had rubbed them, and he had
    repeatedly told the victim to touch his penis. 
    Id. Given all
    of these
    circumstances, we held that a reasonable factfinder could have found beyond a
    reasonable doubt that T.G. had touched or fondled the victim with the intent to
    arouse or satisfy his sexual desires. 
    Id. Accordingly, we
    affirmed T.G.’s true
    finding. 
    Id. [15] Here,
    as in T.G., we find the presence of circumstances to indicate D.H.’s intent
    to arouse or satisfy his sexual desires. First, thirteen-year-old D.H. was three
    years older than J.B., and they could not be considered peers. In addition,
    D.H. had begun inappropriately touching J.B. in 2014. His acts continued in
    2016, when he had not simply touched J.B.’s genitals but had moved his hand
    up and down on them. He had also accessed and watched a pornography
    cartoon website before touching J.B.’s genitals with his penis. This evidence is
    sufficient to support D.H.’s intent and adjudication as a delinquent child.
    [16]   Affirmed.
    Vaidik, C.J., and Barnes, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018   Page 7 of 7
    

Document Info

Docket Number: 36A01-1708-JV-2033

Filed Date: 6/12/2018

Precedential Status: Precedential

Modified Date: 4/17/2021