Jereamy M. Barnes v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
FILED
Feb 05 2013, 9:55 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JACK QUIRK GREGORY F. ZOELLER
Delaware County Public Defender Agency Attorney General of Indiana
Muncie, Indiana
JONATHAN R. SICHTERMANN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEREAMY M. BARNES, )
)
Appellant-Defendant, )
)
vs. ) No. 18A05-1204-CR-209
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Marianne L. Vorhees, Judge
Cause No. 18C01-1007-FA-7
February 5, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Jereamy Barnes appeals his two convictions for Class A
felony child molesting, arguing that Appellee-Plaintiff the State of Indiana presented
insufficient evidence to support the jury’s verdict. At trial, the twelve-year-old victim,
K.R., testified that Barnes digitally penetrated her vagina on July 4, 2010, and that she
and Barnes had sexual intercourse two days later. The State also presented evidence of
text messages sent and received by K.R., including: “I just lost my virginity,” sent to
K.R.’s best friend immediately after the alleged digital penetration, and “Promise me that
we r gonna have sex tonight,” received from Barnes shortly before the alleged sexual
intercourse. Further, a Sexual Abuse Nurse Examiner testified that a physical
examination of K.R. revealed an abrasion on the right side of K.R.’s vaginal opening that
could have come from a penis or a finger. Concluding that a reasonable jury could find
Barnes guilty of two counts of Class A felony child molesting on this evidence, we
affirm.
FACTS AND PROCEDURAL HISTORY
In the summer of 2010, twelve-year-old K.R. lived with her mother and four
siblings in a duplex apartment in Muncie. Twenty-five-year-old Barnes lived with his
wife and three children in the adjoining apartment. On July 8, 2010, K.R.’s mother
learned from the mother of K.R.’s best friend that K.R. had a sexual relationship with
Barnes. When confronted by her mother, K.R. initially denied the allegation but
ultimately admitted that she and Barnes had engaged in sexual intercourse. K.R.’s
mother immediately took K.R. to the hospital, where Sexual Abuse Nurse Examiner
Jennifer Hopper performed a physical examination on K.R. The exam revealed an
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abrasion on the right side of K.R.’s vaginal opening.
On July 23, 2010, the State charged Barnes with four counts of child molesting:
Count 1 alleged that Barnes performed sexual intercourse with K.R. on July 4, 2010;
Count 2, that Barnes performed deviate sexual conduct with K.R. on July 4, 2010; Count
3, that Barnes performed sexual intercourse with K.R. on July 6, 2010; and Count 4, that
Barnes performed fondling or touching with K.R. on July 4, 2010.1 The State later
dismissed Count 4, and a trial was held on the remaining three, all Class A felonies. At
trial, the State presented, among other things, K.R.’s testimony, a transcript of text
messages sent and received by K.R., and the testimony of Nurse Hopper.
K.R. testified that in the early morning of July 4, 2010, she received a text
message from Barnes, inviting her to his apartment. K.R. sneaked next door, where
Barnes asked K.R. if she was “ready to lose [her] virginity.” Tr. p. 56. Barnes removed
his clothes and persuaded K.R. to take off her pants and underwear. Barnes inserted his
finger in K.R.’s vagina and proceeded to move it in and out for approximately five
minutes. Afterward, K.R. returned home and texted her best friend, “I just lost my
virginity … I think.” Ex. p. 17. “No … I DID lose my virginity.” Ex. p. 17.
Two days later, Barnes texted K.R., “Then u gon cum nd give me sum,” Ex. p.
224, and “Promise me that we r gonna have sex tonight.” Ex. p. 225. Shortly thereafter,
K.R. again sneaked to Barnes’s apartment. K.R. and Barnes began having sexual
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These are the charges as stated in the State’s charging informations and the trial court’s
preliminary jury instructions. In their respective briefs, Appellant and Appellee erroneously list the
charges as two counts of Class A felony child molesting, one count of Class B felony criminal deviate
conduct, and one count of Class D felony child solicitation. This error is also found in the State’s
probable cause affidavit, to which the parties cite.
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intercourse, but K.R. stopped and asked Barnes if he had a condom. Barnes replied that
he was not going to use a condom because he would have to wake up his wife to get one.
He further told K.R. that a condom would not be necessary if he did not “go in all the
way.” Tr. p. 71-72. K.R. and Barnes resumed having sexual intercourse and continued
for approximately twenty minutes. Afterward, Barnes asked K.R. if she wanted to see
what “nut” was, Tr. p. 72, before showing her some “clear stuff” in his hand. Tr. p. 73.
The next day, K.R. texted Barnes and asked, “Iff yuu do it with your clothes on,
are yuu still a virgin?” Ex. p. 262. Barnes responded, “Um yea why u ask me that?” Ex.
p. 264. K.R. replied, “[B]ecuz yuu said that yuu didn’t think yuu popped it!” Ex. p. 268.
At trial, K.R. elaborated that, after having sexual intercourse with Barnes, he told her that
he did not think he had “popped [her] cherry.” Tr. p. 76.
Nurse Hopper testified that she found an abrasion on the right side of K.R.’s
vaginal opening that could have come from a penis or a finger. She also admitted that the
abrasion could have been caused by tight-fitting clothing or a tampon. Nurse Hopper did
not find any damage to K.R.’s hymen, but she testified that this fact was not
determinative of whether sexual penetration had occurred.
The jury acquitted Barnes on Count 1 but found him guilty on Counts 2 and 3.
The trial court sentenced Barnes to twenty-five years executed on each count, to be
served concurrently.
DISCUSSION AND DECISION
Barnes argues that the State presented insufficient evidence to support his
conviction on two counts of Class A felony child molesting.
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In reviewing the sufficiency of the evidence, we examine only “the
probative evidence and reasonable inferences” that support the verdict.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness
credibility, nor do we reweigh the evidence to determine if it was sufficient
to support a conviction. Id. Under our appellate system, those roles are
reserved for the finder of fact. Instead, we consider only the evidence most
favorable to the trial court ruling and “affirm the conviction unless ‘no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.’” Id. at 146-47 (quoting Jenkins v. State, 726 N.E.2d
268, 270 (Ind. 2000)). This evidence need not overcome every reasonable
hypothesis of innocence; it is sufficient so long as “‘an inference may
reasonably be drawn from it to support the verdict.’” Id. at 147 (quoting
Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).
Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012).
Here, the State presented K.R.’s testimony that Barnes digitally penetrated her
vagina on July 4, 2010, and that she and Barnes engaged in sexual intercourse on July 6,
2010. The State corroborated this testimony with evidence of the text message, “I just
lost my virginity,” Ex. p. 17, sent by K.R. to her best friend immediately after the alleged
digital penetration. The State also provided evidence of the text messages, “[C]um nd
give me sum,” Ex. p. 224, and “Promise me that we r gonna have sex tonight,” Ex. p.
225, sent by Barnes to K.R. shortly before the alleged sexual intercourse. Additionally,
the State presented evidence of the text message, “[Y]uu said that yuu didn’t think yuu
popped [my cherry]!” Ex. p. 268, sent from K.R. to Barnes on the day after the alleged
sexual intercourse. The State further corroborated K.R.’s testimony with that of Nurse
Hopper, who stated that she found an abrasion on the side of K.R.’s vaginal opening that
could have come from a penis or a finger.
We conclude that a reasonable jury could find Barnes guilty of two counts of Class
A felony child molesting on this evidence. Barnes’s claim that the State presented no
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evidence, other than K.R.’s testimony, that Barnes engaged in deviate sexual conduct or
sexual intercourse with K.R. is patently false. Moreover, it ignores the fact that “[a]
victim’s testimony, even if uncorroborated, is ordinarily sufficient to sustain a conviction
for child molesting.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000). Barnes’s
other contentions simply invite us to reweigh the evidence, which is something we will
not do. Drane, 867 N.E.2d at 146.
The judgment of the trial court is affirmed.
NAJAM, J., and FRIEDLANDER, J., concur.
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