John F.M. Shaw v. State of Indiana (mem. dec.) ( 2017 )

FILED
MEMORANDUM DECISION Mar 22 2017, 9:22 am
CLERK
Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D), this Court of Appeals
and Tax Court
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
Adam C. James Curtis T. Hill, Jr.
Shelbyville, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John F.M. Shaw, March 22, 2017
Appellant-Defendant, Court of Appeals Case No.
73A01-1609-CR-2204
v. Appeal from the Shelby Circuit
Court.
The Honorable Charles D.
State of Indiana, O’Connor, Judge.
Appellee-Plaintiff. Cause No. 73C01-1408-FA-17
Friedlander, Senior Judge
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[1] John Shaw appeals his jury convictions of child molesting as a Class A felony,
2
and child solicitation as a Class D felony. The sole issue he raises is whether
the State presented sufficient evidence to support his convictions. We affirm.
[2] Shaw and Christine Sargent met, dated, and eventually began living together.
Their residence was in Shelby County, Indiana. They lived together for
approximately four years before marrying in 2014.
[3] Christine has two children, a son, W.D., and a daughter, E.S., who lived with
her and Shaw. E.S. was born with physical disabilities. She has no tear ducts
in her right eye, a bilateral cleft lip and cleft palate, and issues due to amniotic
band constriction.
[4] Shaw suffered from health problems that made it difficult for him to walk, and
he was unable to work on a consistent basis. He spent large parts of the day in
his recliner located on the first floor of the house. Christine worked two jobs
that kept her away from the house most of the day and night.
[5] One day, when E.S. was in the sixth grade and eleven years old, she returned
home from school and asked Shaw what a “blowjob” was. Tr. p. 30. E.S. had
not heard the term before, but had heard older girls discussing the term at
school. Shaw explained the term such that E.S. understood it to mean
1
Ind. Code § 35-42-4-3(a)(1) (West, Westlaw 2007).
2
Ind. Code § 35-42-4-6 (West, Westlaw 2007).
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performing oral sex. Later that day, Shaw asked E.S. if she “wanted to try it.”
Id. E.S. said no, and Shaw replied that she “need[ed] to practice so when you
do give your first blowjob to your boyfriend or whoever, they don’t leave you
because you can’t do it right.” Id. On a near daily basis, Shaw continued to ask
E.S. if she wanted to practice oral sex.
[6] Sometime in December 2012, “around Christmas break of [E.S.’s] sixth grade
year,” when Shaw was thirty-five years old, and E.S. was eleven, E.S. agreed to
Shaw’s request to “practice” oral sex. Id. at 32, 33. Shaw and E.S. were in the
living room of their house. Shaw was in his recliner, and E.S. was sitting on
the couch. Christine was at work, and W.D. was visiting his father. Shaw
instructed E.S. to kneel on the floor beside him, put her hand around his penis,
and slowly move her hand up and down. A few minutes later, Shaw told her to
put her mouth on his penis and “do the same thing.” Id. at 33. E.S. stopped
because she felt uncomfortable. She walked to the bathroom and cleaned her
face “because [she] felt like [she] was about to cry.” Id. at 35. Later, Shaw said
to E.S., “the only problem you have is that you need to keep your teeth out of
the way.” Id. at 36.
[7] The next incident occurred in the spring of 2013, toward the end of E.S.’s sixth
grade year when she was twelve years old. Christine was at work, and W.D.
was upstairs in bed. Shaw and E.S. were in the living room, watching a zombie
movie.
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[8] E.S. asked why a woman would be worried about putting on makeup during a
zombie apocalypse. Shaw replied that humans have “urges,” and that he “[bet]
they had a[t] least one orgy.” Id. at 37. Later that evening, Shaw reminded
E.S. that she needed to practice oral sex. E.S. relented. Shaw was laying on
the couch. He instructed E.S. to climb on top of him in the “69 position” and
perform oral sex on him. While the act occurred, Shaw rubbed E.S.’s vaginal
area on the outside of her clothing. At some point, Shaw told E.S. to stop
because she “didn’t need to taste that yet.” Id. at 40. E.S. testified, “I did have
something in my mouth during the second incident . . . that I didn’t understand
what it was and I thought it was just saliva and I swallowed it.” Id. at 42. E.S.
went to the bathroom to clean her face.
[9] The third incident occurred in 2014, at the end of E.S.’s seventh grade year.
She was thirteen years old. Shaw and E.S. were watching television in the
living room. Shaw was sitting in his recliner and E.S. was laying on the couch.
Shaw asked if E.S. wanted to practice oral sex. E.S. finally acquiesced, and
following Shaw’s instructions, knelt beside him and performed oral sex on
Shaw. He told her to stop because, as he stated before, she “didn’t need to taste
that yet.” Tr. p. 47. Christine was at work, and W.D. was at a friend’s house.
[10] On August 22, 2014, when E.S. was thirteen years old and in the eighth grade,
she told her mother about the incidents with Shaw. She did not tell her mother
sooner because Shaw told her that it was a secret, and that if she did tell, he
would accuse her of lying.
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[11] Christine took E.S. to the police station, and E.S. gave a statement to a
detective. Shaw went to the police station on two separate occasions and
provided two separate statements to the detective.
[12] Shaw was charged with child molesting as a Class A felony, child molesting as
a Level 1 felony, and child solicitation as a Class D felony. The Level 1 felony
count was dismissed. Following a jury trial, Shaw was found guilty of the
remaining charges. He was sentenced to thirty years, with twenty-five years
executed and five years suspended to probation. Shaw appeals.
[13] Shaw maintains there was insufficient evidence to support his convictions.
When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
trial court’s decision. Drane v. State, 867 N.E.2d 144 (Ind. 2007). It is the
factfinder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the trial court’s ruling. Id. We affirm a conviction
unless no reasonable factfinder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference reasonably may be drawn from it to support the trial
court’s decision. Id.
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[14] Shaw maintains that the evidence is insufficient to support his convictions
because E.S. presented inconsistent testimony at trial. According to Shaw, E.S.
contradicted herself when she testified to when the incidents occurred and how
many incidents occurred; E.S. was unable to provide distinguishing physical
features of Shaw’s penis; and, on the day E.S. reported the incidents to her
mother, she showed no emotion, but later that day, she was observed laughing.
[15] To obtain a conviction for child molesting as a Class A felony, the State must
have proved beyond a reasonable doubt that (1) Shaw, a person at least twenty-
one years of age, (2) with E.S., a child under fourteen years of age, (3)
performed or submitted to sexual intercourse or deviate sexual conduct. See
Ind. Code § 35-42-4-3(a)(1) (2007); Appellant’s App. p. 19. Regarding Shaw’s
conviction for child solicitation, at the time of the offense, the child solicitation
statute provided in part:
A person eighteen (18) years of age or older who knowingly or
intentionally solicits a child under fourteen (14) years of age, or
an individual the person believes to be a child under fourteen (14)
years of age, to engage in:
(1) sexual intercourse;
(2) deviate sexual conduct; or
(3) any fondling or touching intended to arouse or satisfy the
sexual desires of either the child or the older person;
commits child solicitation, a Class D felony.
Ind. Code § 35-42-4-6(b) (2007). “Deviate sexual conduct” (at the time of the
offense) was defined in relevant part as “an act involving . . . a sex organ of one
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(1) person and the mouth or anus of another person.” Ind. Code § 35-31.5-2-94
(2012), repealed by P.L. 158-2013.
[16] E.S. testified unequivocally that Shaw instructed her to perform oral sex on him
three times: in December of 2012; in the spring of 2013; and in 2014, at the end
of her seventh grade school year. She testified that Shaw asked her on an
ongoing and continuing basis if she wanted to perform oral sex on him. She
accurately recalled where the incidents took place (in the living room) and what
she and Shaw were doing prior to the acts. She remembered the instructions
Shaw gave her as to how to perform the oral sex, and that Shaw’s penis was
erect at the time of the incidents. Christine testified that she asked E.S. how
Shaw’s semen tasted. E.S. recalled it tasting “bittery.” Tr. p. 160.
[17] Shaw’s videotaped statements to the detective regarding the incidents, were
entered into evidence, along with a transcription. His statements corroborated
E.S.’s testimony. Although Shaw claimed to be in a dream-state when the oral
sex took place, because of medication he took, and maintained that E.S.
initiated the sexual acts, he admitted that oral sex took place between him and
E.S. Shaw told the detective the “[o]nly thing I remember is that [. . .] it was
like I was having a dream. (Pause) I opened my eyes [. . .] saw [E.S. down
there] or saw somebody down there.” Ex. Vol. p. 75. He told the detective that
the dream occurred in October or November, around 5:00 or 6:00 p.m.; that at
the time of the “dream” he was downstairs in his recliner, Christine was at
work, and W.D. was visiting his father; that his penis was semi-erect and was
sticking to his underwear; and that the only female who could have been in the
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dream was E.S. Shaw indicated that the dream of E.S. performing oral sex on
him occurred twice. Shaw told the detective he had a conversation with E.S.
about “blowjobs.” He also told the detective that he remembered an instance
when E.S.’s mouth was on his penis for “about [. . .] 30 seconds.” Id. at 105.
He later told the detective, “Okay [. . .] I [. . .] guess I was awake [during the
oral sex]. But [. . .] as soon as [. . .] anything happened and everything I kicked
her off and told her to stop.” Id. at 153. And then, “I allowed it to happen, but
I stopped it.” Id. at 155.
[18] In assessing E.S.’s credibility, it was well within the province of the jury to
reconcile any inconsistencies between her prior statements and her trial
testimony. See Bixler v. State, 537 N.E.2d 21 (Ind. 1989). A jury may believe
whomever they choose and disregard the testimony of witnesses they do not
believe. Borden v. State, 272 Ind. 668, 400 N.E.2d 1368 (1980). When E.S. gave
her statement to the detective, and was deposed by Shaw’s attorney, she
confused the dates of the incidents, and she neglected to tell the detective about
the third incident. At trial, however, her testimony was unequivocal. Shaw, in
his statements to the detective, admitted that the oral sex incidents occurred.
Shaw’s claims are merely a request for us to reweigh the evidence and judge the
credibility of the witnesses, which we will not do. See Sandleben, 29 N.E.3d 126
(Ind. Ct. App. 2015), trans. denied. We find that the evidence presented was
sufficient to support Shaw’s convictions of child molesting and child
solicitation. The judgment of the trial court is affirmed.
[19] Affirmed.
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May, J., and Bradford, J., concur.
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