Somchanh Amphonephong v. State of Indiana , 2015 Ind. App. LEXIS 422 ( 2015 )

May 27 2015, 9:22 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary A. Witte Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Eric Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Somchanh Amphonephong, May 27, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1402-CR-88
v. Appeal from the Allen Superior
Court
State of Indiana, Lower Court Cause No.
02D06-1103-FA-17
Appellee-Plaintiff.
The Honorable John F. Surbeck, Jr.,
Judge
Pyle, Judge.
Statement of the Case
[1] Following a jury trial, Somchanh Amphonephong (“Amphonephong”) was
convicted of three counts of child molesting, one as a Class A felony and two as
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Class C felonies.1 At sentencing, Amphonephong informed the trial court that
he wanted to appeal his convictions. The trial court told Amphonephong that it
would appoint appellate counsel, but it failed to do so. Eighteen months later,
Amphonephong filed a petition seeking permission to file a belated notice of
appeal. The trial court, acknowledging that it had failed to appoint appellate
counsel, granted Amphonephong’s petition.
[2] On appeal, Amphonephong challenges only his Class C felony child molesting
conviction as charged in Count III, arguing that there is insufficient evidence to
support the conviction. The State cross appeals the trial court’s order granting
Amphonephong permission to file a belated notice of appeal. The State
acknowledges that Amphonephong was not at fault for the failure to timely file
a notice of appeal but contends that we should reverse the trial court’s order and
remand for a hearing on Amphonephong’s petition because: (1) the trial court
did not make an express finding that Amphonephong was not at fault and was
diligent in his attempt to file the belated appeal; and (2) Amphonephong failed
to specifically allege that he was diligent.
[3] Concluding that the trial court did not abuse its discretion by allowing
Amphonephong to file a belated notice of appeal and that there is sufficient
1
IND. CODE § 35-42-4-3. We note that, effective July 1, 2014, a new version of the child molesting statute
was enacted and that Class A felony child molesting is now a Level 1 felony and Class C felony child
molesting is now a Level 4 felony. Because Amphonephong committed his crime in 2011, we will apply the
statute in effect at that time.
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evidence to support Amphonephong’s Class C felony child molesting
conviction as charged in Count III, we affirm.
[4] We affirm.
Issues
[5] 1. Whether the trial court erred by granting Amphonephong permission to file
a belated notice of appeal.
[6] 2. Whether sufficient evidence supports Amphonephong’s Class C felony child
molesting conviction as charged in Count III.
Facts
[7] On June 5, 2010, then five-year-old J.B. spent the night with her aunt, Geri
Westmoreland (“Aunt”), who dated and lived with Amphonephong. That
night, J.B. got into bed with Aunt and Amphonephong, and she lay down in
between them. Aunt was asleep, J.B. was lying on her back, and
Amphonephong was lying on his side and facing J.B. when “[h]e put his hands
in [J.B.’s] pants” and “in her underwear.” (Tr. 148). He touched the “[i]nside”
of her “private” that she used to “[p]ee.” (Tr. 149). About ten times, J.B. “kept
on putting his hands out but he kept on putting his hands back in.” (Tr. 149-
50).
[8] The next day, J.B. told her Aunt what Amphonephong had done to her. Aunt
then asked her other niece, N.B., who was also five years old, if
Amphonephong had done anything to her. N.B. indicated that he had touched
her and had sexual intercourse with her on more than one occasion when she
was four and five years old. After J.B.’s mother learned what had happened,
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she called the police. J.B. and N.B. were then interviewed by the Child
Advocacy Center, and they each had a physical examination.
[9] The State charged Amphonephong with: Count I, Class A felony child
molesting for his act of sexual intercourse against N.B.; Count II, Class C
felony child molesting for his act of touching N.B.; and Count III, Class C
felony child molesting for his act of touching J.B.
[10] The trial court held a two-day jury trial on June 5-6, 2012. At the beginning of
trial, Amphonephong’s counsel explained to the jury that Amphonephong was
from Laos and that he did not read or write English but understood it.
[11] During the trial, J.B. testified to the facts above, and she testified that she did
not remember if Amphonephong’s eyes were open or closed. On cross
examination, Amphonephong’s counsel questioned her about her statements
made to the interviewer at the Child Advocacy Center and pointed out
inconsistencies between those prior statements and her trial testimony, such as
her statements that she tried to pull his hands out of her pants only once and
that he was sleeping when he touched her. J.B. acknowledged that she had
made those statements to the interviewer. During closing arguments,
Amphonephong’s counsel argued that there was no evidence that
Amphonephong knowingly touched J.B. because she had said that he was
asleep. The jury found Amphonephong guilty as charged on all counts.
[12] Thereafter, on July 2, 2012, the trial court held a sentencing hearing and
imposed a thirty (30) year sentence for Amphonephong’s conviction on Count
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I, a four (4) year sentence for his conviction on Count II, and a four (4) year
sentence for his conviction on Count III. The trial court ordered that his
sentences for Counts I and II be served concurrently to each other and
consecutively to his sentence for Count III. Thus, the trial court sentenced
Amphonephong to an aggregate, executed term of thirty-four (34) years in the
Department of Correction.
[13] At the end of the sentencing hearing, the trial court informed Amphonephong
that he had a right to appeal, and Amphonephong told the trial court that he
wanted to appeal his convictions. The trial court told Amphonephong that it
would appoint the Allen County Public Defender to perfect an appeal, and it
asked his trial counsel if he “would be good enough just to make sure that the
time lines [were] met initially within the thirty days” while it “promptly”
notified the public defender. (Sent. Tr. 10). The trial court, however, did not
appoint a public defender for Amphonephong, and no one filed a notice of
appeal within thirty days of Amphonephong’s sentencing.
[14] Eighteen months after sentencing, on January 13, 2014, Amphonephong
tendered, with the Clerk of our Court, a pro se petition for permission to file a
belated notice of appeal. Our Clerk’s office sent Amphonephong a letter,
informing him that any petition to file a belated notice of appeal needed to be
filed with the trial court.
[15] Thereafter, on February 13, 2014, Amphonephong filed, with the trial court, a
pro se petition for permission to file a belated notice of appeal. In his petition,
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he asserted that the trial court should grant his petition because: (1) he had
notified the trial court that he wanted to appeal but that the public defender had
not filed his appeal; and (2) he has a “very limited understanding of English and
cannot read but a little bit [of] English” as he “is of Asian origin” from Laos
and had to “get a jailhouse lawyer to help [him] file this motion.” (App. 198).
Amphonephong also filed a motion to proceed in forma pauperis and an
information sheet for the public defender’s office and stated that he “want[ed]
help with [his] appeal[.]” (App. 207).
[16] On March 3, 2014, the trial court sent Amphonephong a letter, which provided:
I am in receipt of your Verified Petition for Permission to File
Belated Appeal, filed February 13, 2014.
It is of course my intent to grant that Petition. The only question
I have is whether or not you in fact wish to have a Public
Defender appointed on your behalf, which the Court failed to do
originally.
If you wish to be represented by counsel, I will appoint the Public
Defender of Allen County promptly to proceed in this matter. If
not, then you will be entitled to proceed pro se.
Please inform me of your desires at your earliest convenience.
Thank you for your attention.
(App. 274) (emphasis added). Subsequently, on May 15, 2014, the trial court,
without holding a hearing, granted Amphonephong’s petition to file a belated
notice of appeal and issued an order, which provided:
Defendant having filed his Verified Petition for Permission to
File Belated Appeal on February [1]3, 2014 and further,
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Defendant having failed t[o] respond to the Court’s letter of
March 3, 2014, regarding the need or desire to be represented by
public defender. The Court now grants Defendant[’]s Petition to
File Belated Appeal and further appoints the Public Defender of
Allen County to perfect said appeal at public expense.
(App. 183, 275). On May 28, 2014, Amphonephong filed his notice of appeal.
He now belatedly appeals one of his three child molesting convictions.
Decision
[17] On appeal, Amphonephong challenges the sufficiency of the evidence to
supports his Class C felony child molesting conviction as charged in Count III.
The State has filed a cross-appeal, challenging the trial court’s grant of
Amphonephong’s petition to file a belated appeal. Because the State’s issue is
potentially dispositive, we will first address this cross-appeal issue.
1. Belated Notice of Appeal
[18] The State contends that the trial court erred by granting Amphonephong
permission to file a belated notice of appeal because: (1) the trial court did not
comply with Indiana Post-Conviction Rule 2(1); and (2) Amphonephong did
not allege or prove that he was diligent.
[19] Amphonephong did not file a reply brief or otherwise respond to the State’s
allegation on cross-appeal that the trial court erred by granting him permission
to file a belated notice of appeal. “In such a circumstance, if we find prima
facie error, we may reverse.” Townsend v. State, 843 N.E.2d 972, 974 (Ind. Ct.
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App. 2006), trans. denied. “In this context, prima facie is defined as “at first
sight, on first appearance, or on the face of it.” Id.[20] Turning to the State’s argument, we note that Indiana Post-Conviction Rule
2(1) provides, in relevant part:
(a) Required Showings. An eligible defendant convicted after a trial
or plea of guilty may petition the trial court for permission to file
a belated notice of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due
to the fault of the defendant; and
(3) the defendant has been diligent in requesting
permission to file a belated notice of appeal under this
rule.
(b) Form of petition. There is no prescribed form of petition for
permission to file a belated notice of appeal. The petitioner’s
proposed notice of appeal may be filed as an Exhibit to the
petition.
(c) Factors in granting or denying permission. If the trial court finds
that the requirements of Section 1(a) are met, it shall permit the
defendant to file the belated notice of appeal. Otherwise, it shall
deny permission.
(d) Hearing. If a hearing is held on a petition for permission to file
a belated notice of appeal, it shall be conducted according to Ind.
Post-Conviction Rule 1(5).
[21] A defendant has the burden of proving by a preponderance of the evidence that
he was without fault in the delay of filing and was diligent in pursuing
permission to file a belated notice of appeal. Moshenek v. State, 868 N.E.2d 419,
422-23 (Ind. 2007), reh’g denied. “There are no set standards of fault or
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diligence, and each case turns on its own facts.” Id. at 423. Our Indiana
Supreme Court has explained that there are several factors that are relevant to
the defendant’s diligence and lack of fault in the delay of filing, including “‘the
defendant’s level of awareness of his procedural remedy, age, education,
familiarity with the legal system, whether the defendant was informed of his
appellate rights, and whether he committed an act or omission which
contributed to the delay.’” Id. (quoting Land v. State, 640 N.E.2d 106, 108 (Ind.
Ct. App. 1994), reh’g denied, trans. denied). A trial court’s decision regarding
whether to grant permission to file a belated notice of appeal “is within the
sound discretion of the trial court.” Id. at 422. “A trial court’s ruling on a
petition for permission to file a belated notice of appeal under Post–Conviction
Rule 2 will be affirmed unless it was based on an error of law or a clearly
erroneous factual determination.” Id. at 423-24.
[22] The State contends that, under Post-Conviction Rule 2(1), the trial court was
required to issue specific findings regarding whether Amphonephong was at
fault for failing to file a timely notice of appeal and whether he was diligent in
requesting permission to file a belated notice of appeal. The State asserts that
the trial court erred because it did not make such express findings and that its
failure to do so requires our Court to remand to the trial court for a hearing on
Amphonephong’s petition. In so arguing, it relies on N.L. v. State, 989 N.E.2d
773, 780 (Ind. 2013).
[23] The State’s reliance on N.L., however, is misplaced because that case involved
the interpretation of the Sex Offender Registration Act in the context of a
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juvenile case. In that case, our Indiana Supreme Court reviewed the Act and
held that, when determining whether a juvenile was required to register under
this Act, a trial court was required to hold an evidentiary hearing and to make
an express finding that the juvenile was likely to reoffend. N.L., 989 N.E.2d at
780. Because the trial court in N.L. did neither, our supreme court remanded
the case to the trial court with instructions to hold an evidentiary hearing and to
enter the required express findings. Id. at 780-81.
[24] Unlike that case, here, we are dealing with the Post-Conviction Rule pertaining
to whether to allow a defendant to file a belated notice of appeal, and this Rule
does not contain any language that could be construed as a mandate that a trial
court must enter an express finding on the defendant’s fault or diligence.
Furthermore, Rule 2(1) does not require the trial court to hold a hearing on a
defendant’s petition for permission to file a belated notice of appeal. See Green
v. State, 593 N.E.2d 1237, 1238 (Ind. Ct. App. 1992) (explaining that Post-
Conviction Rule 2(1) “does not require the court to conduct a hearing, but
[that] we have determined that one should be held where the petition raises a
genuine factual dispute concerning the existence of grounds for relief”), trans.
denied.
[25] Indeed, even if the trial court had made express findings, we would owe them
no deference because the trial court did not hold a hearing before ruling on
Amphonephong’s petition. Where, as here, the trial court does not hold a
hearing before granting a petition to file a belated notice of appeal, we owe no
deference to the trial court’s decision, and the review of the granting of the
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petition is de novo. Baysinger v. State, 835 N.E.2d 223, 224 (Ind. Ct. App.
2005).
[26] The State acknowledges that Amphonephong was not at fault for failing to file
a timely notice of appeal because the trial court had failed to appoint a public
defender to perfect his appeal. Instead, the State contends that Amphonephong
failed to allege or show that he was diligent in his request for permission to file
a belated notice of appeal. The State argues that Amphonephong was not
diligent because he allowed eighteen months to pass between his sentencing in
July 2012 and the time he first tried to file his petition for permission to file a
belated notice of appeal in January 2014.
[27] In regard to diligence, our supreme court has explained that the following
factors are relevant to a determination of diligence: “the overall passage of
time; the extent to which the defendant was aware of relevant facts; and the
degree to which delays are attributable to other parties[.]” Moshenek, 868
N.E.2d at 424.
[28] Here, the record reveals that the trial court informed Amphonephong that he
had a right to appeal. As Amphonephong set forth in his verified motion, he
told the trial court at the sentencing hearing that he wanted to appeal his
convictions, and the trial court told him that it would appoint a public defender
to represent him on appeal. The trial court, however, did not appoint a public
defender for Amphonephong, and no one filed a notice of appeal within thirty
days of Amphonephong’s sentencing. After having no contact from a public
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defender and learning that no appeal had been filed, Amphonephong attempted
to file a petition for permission to file a belated notice of appeal, but he
incorrectly tendered it with our Court. However, once he was informed that he
needed to file it with the trial court, he did so without delay. Additionally, as
Amphonephong pointed out in his petition, he is from Laos, “has a very limited
understanding of English[,]” “cannot read but a little bit [of] English[,]” and
had to “get a jailhouse lawyer to help [him] file this motion.” (App. 198). In
the presentence investigation report attached to his petition, the probation
officer noted that all the paperwork that Amphonephong signed for the
probation department had to be read to him. Under the specific circumstances
present in this case, including his timely request for counsel, we cannot say that
the trial court erred by granting Amphonephong permission to file a belated
notice of appeal. See Williams, 873 N.E.2d at 147 (concluding that “because
[the defendant] requested the appointment of appellate counsel in a timely
manner—which the trial court immediately granted—we further find that [the
defendant] was diligent in requesting permission to file the belated notice of
appeal.”). Accordingly, we reject the State’s invitation to dismiss this appeal
and instead consider Amphonephong’s appeal on its merits.
2. Sufficiency
[29] Amphonephong argues that the evidence was insufficient to support his Class C
felony child molesting conviction relating to J.B.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
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evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the [jury’s verdict].
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks and
citations omitted) (emphasis in original). Furthermore, “[a] molested child’s
uncorroborated testimony is sufficient to sustain a conviction.” Carter v. State,
754 N.E.2d 877, 880 (Ind. 2001), reh’g denied, cert. denied. See also Hoglund v. State,
962 N.E.2d 1230, 1238 (Ind. 2012) (“The testimony of a sole child witness is
sufficient to sustain a conviction for molestation.”), reh’g denied.
[30] To convict Amphonephong of Class C felony child molesting as charged in
Count III, the State was required to prove beyond a reasonable doubt that
Amphonephong, “with [J.B.,] a child under fourteen (14) years of age,
perform[ed] or submit[ted] 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[.]” I.C. § 35-42-4-3(b).
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[31] Amphonephong argues that the State failed to prove that he: (1) acted
knowingly; and (2) had the intent to arouse or satisfy his or J.B.’s sexual
desires. He asserts that the State did not prove these two elements because J.B.
testified that he was asleep. He reasons that if he were asleep, then he could not
have acted knowingly or had the requisite intent.
[32] Our Indiana Supreme Court has explained that the culpability requirement of
the child molesting statute is “knowingly or intentionally.” See Louallen v. State,
778 N.E.2d 794, 798 (Ind. 2002) (concluding that it was not error to instruct the
jury that defendant could be convicted pursuant to INDIANA CODE § 35-42-4-
3(b) for “knowingly or intentionally” molesting a child); see also Cardwell v. State,
516 N.E.2d 1083, 1086 (Ind.Ct.App.1987) (“Regardless of the fact that there is
no specific mention of any criminal intent or mens rea in the relevant portion of
the child molesting statute, mens rea is an element of the crime of child
molesting.”), reh’g denied, trans. denied. Here, when instructing the jury on the
elements of the Class C felony child molesting charge in Count III, the trial
court informed the jury that the State was required to prove beyond a
reasonable doubt that Amphonephong “knowingly” performed or submitted to
any fondling or touching with J.B. (App. 109). A person engages in conduct
“knowingly” if, when he engages in the conduct, he is aware of a high
probability that he is doing so. I.C. § 35-41-2-2(b). Additionally, “[t]he 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
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which such conduct usually points.” Bowles v. State, 737 N.E.2d 1150, 1152
(Ind. 2000).
[33] Here, the evidence most favorable to the jury’s verdict reveals that J.B. testified
that she got into bed with Aunt and Amphonephong and that he was lying on
his side facing her. While she testified at trial that she could not see
Amphonephong’s eyes and admitted on cross examination that she had told the
child advocate that he was sleeping, she also testified that Amphonephong “put
his hands in [her] pants” and “in her underwear” and touched the “[i]nside” of
her “private” that she used to “[p]ee.” (Tr. 148, 149). Additionally, J.B.
testified that, about ten times, she “kept on putting his hands out but he kept on
putting his hands back in.” (Tr. 149-50). Based on the evidence of
Amphonephong’s conduct and the reasonable inferences therefrom, there was
sufficient evidence to support the jury’s determination that Amphonephong
knowingly touched J.B. and did so with an intent to arouse or satisfy his sexual
desires. See, e.g., Archer v. State, 996 N.E.2d 341, 352 (Ind. Ct. App. 2013)
(holding that that the victim’s testimony that the defendant touched her,
including inside her vagina, while the victim was in bed with her grandmother
and the defendant supported a reasonable inference that the defendant intended
to arouse or satisfy his desires), trans. denied.
[34] Amphonephong’s argument is nothing more than an invitation for this Court to
reweigh the evidence and judge the credibility of the witness, which we decline
to do. See Drane, 867 N.E.2d at 146. Amphonephong made this same
argument to the jury during closing argument. The jury rejected his argument
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and believed J.B.’s testimony, which was sufficient to support its guilty verdict
for the Class C felony child molesting conviction, and we decline to impinge
upon the jury’s credibility determination and weighing of the evidence.
Because there is probative evidence from which the jury could have found
Amphonephong guilty beyond a reasonable doubt of Class C felony child
molesting as charged in Count III, we affirm his conviction.
[35] Affirmed.
Barnes, J., and May, J., concur.
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