Cleveland Munoz v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Mar 14 2014, 9:07 am
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:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CLEVELAND MUNOZ, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1307-CR-567
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
The Honorable Stanley Kroh, Commissioner
Cause No. 49G03-1302-FC-9606
March 14, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Cleveland Benages Munoz (Munoz), appeals his conviction
for two Counts of child molesting, Class C felonies, Ind. Code § 35-42-4-3(b).
We affirm.
ISSUE
Munoz raises one issues on appeal which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to sustain his conviction for two
Counts of child molesting.
FACTS AND PROCEDURAL HISTORY
E.M. was born on September 2, 2005, and lived in a two-bedroom apartment in
Marion County, Indiana with her mother, Amanda Moore (Amanda), her older sister,
M.M, her younger sister, and her younger twin brothers. E.M.’s father, Chazell Moore
(Chazell), lived in the upstairs apartment together with his fiancee, Kimberly Sutton
(Kimberly), and Kimberly’s three children. From December 2012 to February 2013,
Amanda’s boyfriend, Munoz, lived with Amanda and her children. Amanda worked
during the day; Munoz, Chazell, and Kimberly would watch the children while she was at
work. Munoz would look after the children in the downstairs apartment; Chazell and
Kimberly would watch them in the upstairs apartment.
E.M. did not care for Munoz. Munoz “singled out” E.M. (Transcript p. 107). He
told her “not to eat so much” and that she was getting fat. (Tr. p. 87). He “pulled” M.M.
out in front of E.M. “and told [her] this is what she’s supposed to look like.” (Tr. p. 107).
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One December morning in 2012, when Amanda was at work, Munoz, E.M. and
the twin boys were in the master bedroom, which was furnished with a television.
Munoz told the twins to leave the bedroom. He was lying on the bed and told E.M. to
come up to the bed. Munoz was wearing boxer shorts and E.M. was wearing a big shirt,
underwear, and a bra. The twins kept “popping in the room” and Munoz “kept on saying
‘get out.’” (Tr. pp. 70, 72). When the twins left, Munoz took E.M.’s hand and asked,
“Do you want it?” (Tr. p. 69). He placed E.M.’s hand on his penis, which was hard, on
the outside of his boxers. E.M. was scared and left the bedroom.
Sometime in January 2013, E.M. asked her mother if she could sleep in her
mother’s bed. Amanda and Munoz were sleeping in the children’s bedroom and E.M.
“wanted to be away from” Munoz. (Tr. p. 73). After Amanda went to work, Munoz
woke up E.M. when he entered the bedroom and climbed on top of her. E.M. was
wearing underwear and her mother’s shirt; Munoz was wearing boxer shorts. Munoz
“started rubbing his body up against [her];” he was “on top of [her] going up and down
on [her] body.” (Tr. p. 74). He rubbed his penis, which was hard, on her vagina. E.M.
felt hot and started to sweat. Munoz “started breathing hard,” and asked E.M. if she
wanted to go back to sleep or take a shower. (Tr. p. 76). E.M. showered.
Later that day, E.M. told her older sister what had happened. M.M. advised her to
inform their mother. When Amanda returned home from work, E.M. told her Munoz
“has been touching me.” (Tr. p. 77). Amanda confronted Munoz and Munoz informed
E.M. that whenever Amanda was at work, she was no longer allowed to stay in the
apartment and instead had to go upstairs to her father’s apartment. Amanda did not call
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the police because she “[d]idn’t want to believe somebody that, you know, that I loved
and I thought loved me would ever do anything like that.” (Tr. p. 110).
On February 10, 2013, the children were playing in a closet in the downstairs
apartment when they broke a water pipe. Munoz yelled at them and sent E.M. upstairs to
her father’s apartment. Chazell and Kimberly were getting ready to attend church and
tried to send her back downstairs. E.M. refused to go back downstairs and became “teary
eyed.” (Tr. p. 32). She stood very close to Chazell and had her arms around his arm, she
was crying. E.M. explained to her father what Munoz had done to her. Chazell “yelled”
to Kimberly to call the police, grabbed a baseball bat, and went downstairs “to have a
talk” with Munoz. (Tr. pp. 32, 33). When Chazell confronted Munoz, Munoz replied, “I
don’t touch little girls. I don’t touch kids.” (Tr. p. 33). Munoz left the apartment,
wearing only sweatpants. The police later found him, sitting on a stairwell outside of an
apartment on the other side of the complex.
On February 12, 2013, the State filed on Information charging Munoz with four
Counts of child molesting, Class C felonies, I.C. § 35-42-4-3(b). On May 22, 2013, the
trial court conducted a jury trial. During the proceedings, the trial court granted Munoz’
motion for a directed verdict on Count III. At the close of the evidence, the jury found
Munoz not guilty of Count I, but guilty of Counts II and IV. On June 11, 2013, during a
sentencing hearing, the trial court sentenced Munoz to concurrent sentences of four years,
with, on each sentence, two years suspended to probation.
Munoz now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
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Munoz argues that the State failed to present sufficient evidence beyond a
reasonable doubt to sustain his conviction for two Counts of child molesting. When
reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor assess
the credibility of the witnesses. Walker v. State, 984 N.E.2d 642, 644 (Ind. Ct. App.
2013). We may look only to the evidence most favorable to the judgment and reasonable
inferences therefrom and will affirm if we conclude that evidence of probative value
exists such that a reasonable fact finder could find the elements of the underlying crime
proven beyond a reasonable doubt. Id.In order to convict Munoz of child molesting as a Class C felony, the State was
required to establish beyond a reasonable doubt that Munoz, with a child under fourteen
years of age, had performed or submitted to any fondling or touching, of either E.M. or
Munoz, with intent to arouse or to satisfy the sexual desires of either E.M. or Munoz. See
I.C. § 35-42-4-3(b). Mere touching alone is insufficient to constitute the crime of child
molesting. Nuerge v. State, 677 N.E.2d 1043, 1048 (Ind. Ct. App. 1997), trans. denied.
The State must also prove beyond a reasonable doubt that the act of touching was
accompanied by the specific intent to arouse or satisfy sexual desires. Id. The 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 which such
conduct usually points. Id.Munoz contends that the State failed to establish that he “acted with the intent to
arouse or satisfy either his sexual desires or those of E.M.” (Appellant’s Br. p. 7). A
child molesting conviction may rest on a minor victim’s uncorroborated testimony.
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Feyka v. State, 972 N.E.2d 387, 393 (Ind. Ct. App. 2012), trans. denied. Here, Munoz
was found guilty of two instances of child molesting. With respect to the first conviction,
E.M. testified that in December 2012, she was in the master bedroom, together with
Munoz and her twin brothers. After Munoz had ordered her brothers out of the room, he
told E.M. to join him on the bed. He took her hand and placed it on top of his boxer
shorts. She testified that she could feel his penis, which was hard. We have consistently
held that the intentional touching of genitals amounts to circumstantial evidence of intent
to arouse. See, e.g., Rodriguez v. State, 868 N.E.2d 551, 553-54 (Ind. Ct. App. 2007).
There is no doubt here that, based on E.M.’s testimony, Munoz was aroused.
With respect to the second conviction, E.M. testified that Munoz woke her up
when she was sleeping in the master bed. She stated that he climbed on top of her and
rubbing his body up against her. He rubbed his penis on her vagina. E.M. noticed that
his penis was hard. She felt hot and started to sweat; Munoz “started breathing hard.”
(Tr. p. 76). Again, E.M.’s testimony is sufficient to support that Munoz intended to
arouse himself and actually became aroused.
Munoz now attempts to explain E.M.’s testimony as the statements of a “forlorn
middle child” who felt disfavored by her mother’s boyfriend and who thought he was
mean. (Appellant’s Br. p. 7). He asserts that she fabricated the molestations to “deflect
attention away from her.” (Appellant’s Br. p. 6). Our review of the record reflects that
the jury was informed about the animosity that existed between E.M. and Munoz by E.M.
and Munoz themselves. The jury also heard and saw E.M.’s parents and older sister
testify. It is the jury’s responsibility to determine whether testimony is contrived and to
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generally judge the credibility of witnesses. Cardwell v. State, 516 N.E.2d 1083, 1087
(Ind. Ct. App. 1987), reh’g denied, trans. denied. “The lack of corroborating medical or
physical evidence and the improbability of the events occurring as described because of
the presence of other children or adults in the immediate vicinity does not, of itself,
render the uncorroborated testimony of the victim insufficient to sustain a child molesting
conviction. Id. Based on the evidence before us, we conclude that the State presented
sufficient evidence beyond a reasonable doubt to establish that Munoz committed the acts
of child molestation with the intent to become aroused.
CONCLUSION
Based on the foregoing, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to sustain Munoz’ conviction for two Counts of child
molesting.
Affirmed.
VAIDIK, C. J. and MAY, J. concur
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