H.H. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 13 2019, 10:03 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
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
H.H., November 13, 2019
Appellant-Respondent, Court of Appeals Case No.
19A-JV-1102
v. Appeal from the St. Joseph
Probate Court
State of Indiana, The Honorable Jason Cichowicz,
Appellee-Petitioner Judge
The Honorable Graham Polando,
Magistrate
Trial Court Cause No.
71J01-1804-JD-99
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019 Page 1 of 5
[1] H.H. appeals the juvenile court’s adjudication that he was delinquent for
committing an act that would be Level 6 Felony Sexual Battery1 had it been
committed by an adult, arguing that the evidence is insufficient to support the
adjudication. Finding the evidence sufficient, we affirm.
Facts
[2] On October 7, 2017, K.K. was attending a high school football game with
friends. K.K. lost track of her friend with whom she was supposed to spend the
night, so she and a different friend, L.M., called a fellow student, J.B., to come
and get them. Soon thereafter, J.B. arrived with H.H. and two other male
friends to pick them up. While inside the vehicle, everyone started passing
around a bottle of “mango tast[ing]” alcohol and drinking from it. Tr. Vol. II p.
24. According to K.K., she took “a couple drinks.” Id.
[3] Then, the car pulled over at a local beach. K.K. and L.M. exited the vehicle,
but K.K. testified that she “[was] having trouble standing,” “was dizzy,” and
“could barely see.” Id. at 26. K.K. and L.M. smoked from a marijuana cigarette
being passed around, got back in the vehicle, and left the beach.
[4] J.B. and H.H. invited K.K. and L.M. to H.H.’s house to spend the night. K.K.
and L.M. agreed, and upon arriving at the house, the party snuck through the
back door to avoid detection. All four of them went into H.H.’s parents’
1
Ind. Code § 35-42-4-8(a)(1)(B).
Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019 Page 2 of 5
bedroom and got into the bed. After that point, K.K. testified that “[i]t started
to get a little fuzzy there, like I blacked out” and that “I don’t remember that
much.” Id. at 28. J.B. and L.M. went into a separate bedroom, leaving H.H.
and K.K. in H.H.’s parents’ bedroom. For the rest of the night, K.K. testified
that she “felt like [she] was getting sick and not feeling good.” Id. K.K. began
slipping in and out of consciousness and waking up sporadically. The first time
she woke up, K.K. felt H.H. on top of her, kissing her mouth. K.K. slipped
back into unconsciousness, and the next thing she remembered was J.B. and
L.M. reentering the bedroom and sleeping in the same bed. K.K. did not
remember anything else until she awakened the next morning and called her
sister to pick her up.
[5] On April 6, 2018, the State filed a delinquency petition, alleging that H.H. was
delinquent for committing acts that would be two counts of Level 6 felony
sexual battery had they been committed by an adult. Following a February 5,
2019, fact-finding hearing, the juvenile court adjudicated H.H. to be delinquent
on one count and dismissed the other. After H.H.’s April 17, 2019,
dispositional hearing, the juvenile court placed H.H. on strict, indefinite
probation and ordered that he participate in sex-offense treatment. H.H. now
appeals.
Discussion and Decision
[6] H.H.’s sole argument on appeal is that the evidence is insufficient to support the
juvenile court’s delinquency adjudication.
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[7] Our standard of review for these types of juvenile cases is well established:
“In reviewing a sufficiency of the evidence claim, we do not
reweigh the evidence or assess the credibility of the witnesses.”
Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). “Rather, we
look to the evidence and reasonable inferences drawn therefrom
that support the [judgment], and we will affirm the [adjudication]
if there is probative evidence from which a reasonable [factfinder]
could have found the defendant guilty beyond a reasonable
doubt.” Id. We must therefore reverse if there is no evidence or
reasonable inference to support any one of the necessary elements
of the offense. E.g., Grace v. State, 731 N.E.2d 442, 445 (Ind. 2000).
(“[T]here must be sufficient evidence on each material element” to
affirm a conviction).
K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013) (alterations in original); see also
A.J.R. v. State, 3 N.E.3d 1000, 1004-05 (Ind. Ct. App. 2014).
[8] To adjudicate H.H. as delinquent for committing an act that would be Level 6
felony sexual battery had it been committed by an adult, the State was required
to prove beyond a reasonable doubt that H.H., with the intent to arouse or
satisfy his own sexual desires or K.K.’s sexual desires, touched K.K. when she
was so mentally disabled or deficient that consent to the touching could not
have been given. I.C. § 35-42-4-8(a)(1)(B). Specifically, H.H. argues that the
evidence is insufficient to prove that K.K. was so mentally disabled or deficient
that she could not consent to the touching.
[9] While it is true that “[t]he plain meaning of ‘mentally disabled or deficient[]’ . .
. would exclude a temporary, natural state such as sleep from inclusion in that
phrase,” Ball v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), the evidence in
the record shows that K.K. was under the influence of substances that
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contributed to her deficient mental state. K.K. testified that after drinking the
alcohol, she had trouble walking and felt “very dizzy[.]” Tr. Vol. II p. 27. Then,
after smoking an unknown amount of marijuana, K.K. returned with H.H. to
his home and stated that she felt ill all night. At multiple instances, K.K. slipped
in and out of consciousness, explaining that she had trouble remembering
certain moments, particularly the one where she claimed H.H. had gotten on
top of her and kissed her. In fact, she only fully came to her senses the next
morning when she called her sister to come get her.
[10] Based on this evidence, we find that a reasonable factfinder could have
concluded that K.K.’s mental state was so deficient due to these substances that
she was unable to give consent. Any argument by H.H. that we should
reconsider testimony or reexamine K.K.’s credibility amounts to a request that
we reweigh the evidence, which we may not do. We will consider any and all
logical and reasonable inferences drawn from the evidence in favor of the
juvenile court’s ruling. Consequently, the evidence was sufficient to adjudicate
H.H. as delinquent for committing an act that would be Level 6 felony sexual
battery had it been committed by an adult.
[11] The judgment of the juvenile court is affirmed.
Kirsch, J., and Crone, J., concur.
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