B.N. v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Mar 15 2016, 9:48 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brooke N. Russell Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Prosecuting Attorney
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
B.N., March 15, 2016
Appellant-Respondent, Court of Appeals Case No.
49A02-1507-JV-771
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A.
Appellee-Petitioner. Moores, Judge
The Honorable Geoffrey Gaither,
Magistrate
Trial Court Cause No.
49D09-1411-JD-2791
Najam, Judge.
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Statement of the Case
[1] B.N. appeals his adjudication as a delinquent for child molestation, as a Level 4
felony when committed by an adult. B.N. raises a single issue for our review,
which we restate as whether the State presented sufficient evidence to support
B.N.’s adjudication as a delinquent. We affirm.
Facts and Procedural History
[2] From approximately May 11, 2011, to September 23, 2014, S.P. babysat J.N.
on the weekends. J.N. was six- and seven-years old during that period of time.
S.P.’s teenaged son, B.N., lived with her. The house was small, consisting of
two bedrooms, a living room, and a kitchen. While either S.P. or J.R.—
another adult living in the home—were in the house the majority of the time,
there were times when S.P. or J.R. were not in the household when J.N. and
B.N. were there.
[3] At various times, B.N. made J.N. “suck [B.N.’s] private parts,” and B.N. put
“his private parts in [J.N.’s] butt,” which J.N. refers to as “humping.” Tr. at
10. J.N. stated these events took place in both B.N.’s bedroom and a shed on
the property, and these acts occurred almost every time J.N. was at S.P.’s
house. At one point, Ju.R., another child living in the home and J.N.’s friend,
saw B.N. and J.N. go into the shed together.
[4] All those events made J.N. feel “[u]ncomfortable.” Id. B.N. told J.N. not to
tell anyone of those events, and J.N. did not reveal the acts to an adult for some
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time because he felt “scared” and “thought [B.N.] really might mean it” in
terms of carrying out the threats against J.N. Tr. at 15.
[5] On September 23, 2014, after Jessica Madeiros, an Abuse Program
Specialist/Child Forensic Interviewer for the Indianapolis Metropolitan Police
Department, presented a Body Safety Program at J.N.’s school, J.N. indicated
that he wanted to talk to Madeiros. The following day, J.N. told Madeiros
that, on the previous Friday, B.N. had “put his penis inside of J.N.’s butt” and
that that had happened multiple times in B.N’s bedroom or the shed. Tr. at 5.
J.N. then told his adoptive mother and his biological mother, whom he knew as
his sister, that B.N. “would hit [J.N.] in the face if [J.N.] wouldn’t give [B.N.]
oral sex,” and B.N. “would put his fingers and crayons up [J.N.’s] butt.” Tr. at
35. J.N. told his biological aunt, whom he also knew as his sister, that B.N.
had been “touching [J.N.] in [an] inappropriate way, taking him to the shed
and touching him.” Tr. at 45-456. However, during the fact-finding hearing,
J.N. denied that B.N. had hit him and stated that, if he had told anyone
otherwise, it was incorrect.
[6] On November 19, 2014, the State alleged that B.N. was a delinquent for
committing the following: Count 1, child molesting, as a Class B felony when
committed by an adult; Count 2, child molesting, as a Class C felony when
committed by an adult; Count 3, child molesting, as a Level 3 felony when
committed by an adult; and Count 4, child molesting, as a level 4 felony when
committed by an adult. On April 24, 2015, after a fact-finding hearing, the
juvenile court found B.N. to not be a delinquent on Counts 1-3, but the court
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adjudicated him to be a delinquent on Count 4. On June 12, 2015, the juvenile
court sentenced B.N. to formal probation. This appeal ensued.
Discussion and Decision
[7] B.N. appeals his adjudication as a delinquent. In particular, B.N. asserts that
the State failed to present sufficient evidence to support his adjudication
because J.N.’s testimony was incredibly dubious. When the incredible-
dubiosity rule is applied, we may “impinge upon a fact finder’s function to
assess the credibility of a witness.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind.
2011). However, this rule only applies in “limited circumstances.” Moore v.
State, 27 N.E.3d 749, 754 (Ind. 2015). Namely, the incredible-dubiosity rule
requires that there be “1) a sole testifying witness; 2) testimony that is inherently
contradictory, equivocal, or the result of coercion; and 3) a complete absence of
circumstantial evidence.” Id. at 756. But B.N.’s argument fails to demonstrate
that the incredible-dubiosity rule applies here.
[8] First, the State called additional witnesses besides J.N. who testified in support
of J.N.’s claim. The testimony of nonvictim witnesses as to what the victim
said out of court is admissible to avoid application of the incredible-dubiosity
rule. Turner, 953 N.E.2d at 1059-60. J.N.’s adoptive mother, J.N.’s biological
mother, J.N.’s biological aunt, and Madeiros all testified in support of J.N.’s
claim. Even if there are contradictions in the testifying witnesses’ claims, it is
“indistinguishable from any other case where the jury has the duty to assess the
credibility of witnesses.” Id. at 758. “It is for the trier of fact to resolve conflicts
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in the evidence and to decide which witnesses to believe or disbelieve.”
Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001). Accordingly, B.N. cannot
demonstrate that the State’s evidence against him violated the incredible-
dubiosity rule.
[9] Second, even if we were to consider only J.N.’s testimony, his allegedly
contradictory statements were between statements made at the prehearing and
during the fact-finding hearing. In the adult criminal context, the Indiana
Supreme Court has repeatedly refused to apply the incredible-dubiosity rule to
statements made pretrial and during trial when the statements made during trial
are consistent. Turner, 953 N.E.2d at 1059; see also Murray v. State, 761 N.E.2d
406, 409 (Ind. 2002) (“The fact that a witness gives trial testimony that
contradicts earlier pre-trial statements does not necessarily render the trial
testimony incredibly dubious.”). We will not deviate from those holdings in
this case. J.N.’s statements during B.N.’s fact-finding hearing were consistent,
and, thus, the incredible-dubiosity rule does not apply here.
[10] Finally, we note that B.N. also suggests that the juvenile court rendered
inconsistent judgments when it entered not-true findings on some of the State’s
allegations but then adjudicated him a delinquent on the child-molesting
allegation. We reject that argument. The fact that the court did not find B.N.
to be a delinquent on three of the four allegations is insufficient to demonstrate
that the court’s adjudication that B.N. was a delinquent on the child
molestation allegation was erroneous. As the Indiana Supreme Court has
recognized in the context of a jury verdict in a criminal case, such decisions
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“are not subject to appellate review on grounds that they are inconsistent,
contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind.
2010). Furthermore, logically inconsistent verdicts may be due to a fact-finder’s
choice to exercise lenity and “refus[e] to find the defendant guilty of one or
more additionally charged offenses, even if such charges were adequately
proven by the evidence.” Id. at 648. Indiana jurisprudence recognizes a fact-
finder’s use of lenity as “an important component of our criminal justice
system.” Id. at 649.
[11] In sum, we affirm B.N.’s adjudication for child molestation, as a Level 4 felony
when committed by an adult.
[12] Affirmed.
Riley, J., and May, J. concur.
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