Kenneth Moore v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 22 2020, 8:59 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Myriam Serrano
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Moore, December 22, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-734
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff, Judge
Trial Court Cause No.
20D03-1901-F1-1
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-734 | December 22, 2020 Page 1 of 8
Case Summary and Issue
[1] Following a jury trial, Kenneth Moore was found guilty of two counts of child
molesting, a Level 1 felony and a Level 4 felony, and admitted to being a repeat
sexual offender. The trial court sentenced Moore to an aggregate of seventy-
two years in the Indiana Department of Correction (“DOC”). Moore now
appeals and raises one issue for our review, namely whether the evidence is
sufficient to support his conviction for Level 1 felony child molesting.
Concluding the evidence is sufficient to support his conviction, we affirm.
Facts and Procedural History
[2] The facts most favorable to the verdict are as follows. Moore is the step-
grandfather of V.G. Sometime in December 2014, when V.G. was eight years
old, V.G.’s family, including Moore, her parents, siblings, and some extended
family, got together to celebrate Christmas. After the gathering, V.G., Moore,
and several other family members went bowling in Elkhart. V.G.’s parents did
not attend. At the end of the night, Moore drove V.G. to her home in Warsaw.
During the drive, V.G. fell asleep and Moore reached over with his right hand,
unbuttoned V.G.’s pants, and fondled her vagina with his fingers. Later, when
V.G. woke up in the truck, her pants were unbuttoned and unzipped, her
underwear was “scrunched down in her pants[,]” and her seatbelt was off.
Transcript, Volume 2 at 203. She also experienced extreme pain in her vagina.
She later rated her pain level, on a scale of one through ten, as an eight or nine,
and characterized the pain as feeling “like a bone was poking through
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something.” Id., Vol. 3 at 89. V.G. did not say anything to Moore; however,
she believed he told her “that [her] pants looked a little bit too tight, like around
the waist, or [her] seatbelt was too tight[.]” Id. at 91. When they left the
bowling alley, V.G. was wearing her seatbelt, her pants were zipped, and she
did not have any vaginal pain. Moore dropped V.G. off at home.
[3] Sometime in 2016 or 2017, V.G.’s family, including her parents and siblings,
got together at Moore’s mother’s home. Moore was also at the gathering.
After dinner, V.G.’s stepfather and mother observed Moore look at V.G.’s
buttocks in an inappropriate manner. V.G.’s parents went to the basement to
have a cigarette and discuss what they had just seen. Shortly thereafter,
Moore’s mother, V.G.’s great-grandmother, also joined. Moore stayed upstairs
with V.G. and her siblings. Moore was seated in a chair and V.G. laid on the
couch next to the chair. V.G.’s siblings were playing in a nearby room. Moore
tried to “tickle” V.G. but “put his hand under [her] pants but not . . . under
[her] underwear” and rubbed her vagina for no more than twenty seconds. Id.
at 93, 99. Moore stopped because the adults returned from the basement.
[4] On January 1, 2019, V.G.’s parents discovered V.G. was using Instagram
despite not being allowed to have or use social media. V.G.’s parents
discovered messages she had sent via Instagram to a friend and confronted her,
which ultimately led to V.G. disclosing the abuse. V.G.’s father later contacted
the police.
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[5] On January 9, V.G. met with a forensic interviewer and disclosed the sexual
abuse. The following day, V.G. underwent a physical examination conducted
by forensic nurses Nancy Grant and Steve Taft. In examining V.G., Grant
observed “there was a notch missing out of the 6 o’clock position of her
hymen.” Id., Vol. 2 at 172. This meant that “the rim of the hymen was missing
a small section[,]” which is “indicative of penetration.” Id. Taft also observed
the abnormal findings, stating that V.G. “had some missing hymen tissue at
about 6 o’clock, [which is] significant [because t]here should not be any type of
missing pieces or . . . healed areas” in the posterior part of the hymen. Id. at
208. Taft opined that the finding was indicative of penetration. Although
Grant and Taft both indicated that it would be difficult or nearly impossible to
determine when the injury occurred, Taft believed the type of injury he
observed was consistent with an injury from a finger or toy. Id. at 216.
[6] Detectives Josh Havens and Mario Mora of the Goshen Police Department
interviewed Moore on January 16. They read Moore his Miranda rights and
Moore agreed to speak with them. The interview was recorded. During the
interview, Moore initially denied touching V.G. inappropriately. However,
Moore later admitted to unfastening V.G.’s seatbelt, unbuttoning her pants, and
fondling her for five to ten minutes while driving her home from the bowling
alley in 2014. At one point, Moore told detectives that he believed V.G. was
sleeping the entire time “and that he had got a mulligan. And he knew it
wouldn’t happen again.” Id., Vol. 3 at 14. Detective Mora also had a
conversation with Moore about how far Moore’s fingers went into V.G.’s
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vagina. Moore admitted to putting his fingers inside the lips of V.G.’s vagina
and “stated that they had broke [sic] the plane of the lips of her vagina.” Id. at
19, 131. Moore also admitted to touching V.G. at his mother’s house. Moore
told detectives he had been tickling V.G. and “at one point she had pushed his
hand down and his hand could have possibly touched her.” Id. at 13. After the
interview, Moore was arrested.
[7] On January 22, the State charged Moore with child molesting, a Level 1 felony;
child molesting, a Level 4 felony; and alleged he was a repeat sexual offender.
A jury trial was held from February 10 to 12, 2020. The video recording of
Moore’s interview was admitted into evidence and portions thereof were
published to the jury. The jury found Moore guilty of both counts of child
molesting and Moore admitted to being a repeat sexual offender. The trial
court sentenced Moore to consecutive terms of fifty years for his Level 1 felony
conviction and twelve years for his Level 4 conviction, enhanced by ten years
for being a repeat sexual offender. The trial court ordered Moore’s sentences to
be served in the DOC. Moore now appeals.
Discussion and Decision
I. Standard of Review
[8] When reviewing the sufficiency of the evidence required to support a
conviction, we do not reweigh the evidence or judge the credibility of the
witnesses. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Instead, we
consider only the evidence supporting the verdict and any reasonable inferences
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that can be drawn therefrom. Morris v. State, 114 N.E.3d 531, 535 (Ind. Ct.
App. 2018), trans. denied. We consider conflicting evidence most favorably to
the verdict. Silvers v. State, 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). “We will
affirm if there is substantial evidence of probative value such that a reasonable
trier of fact could have concluded the defendant was guilty beyond a reasonable
doubt.” Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). The evidence need
not overcome every reasonable hypothesis of innocence; it is sufficient if an
inference may reasonably be drawn from the evidence to support the verdict.
Silvers, 114 N.E.3d at 936.
II. Sufficiency of the Evidence
[9] Moore challenges his conviction for child molesting as a Level 1 felony.
Moore’s only claim on appeal is that the evidence is insufficient to show that he
performed “other sexual conduct” with V.G. Specifically, he claims the
evidence is insufficient for the following reasons: “V.G. could not recall a single
detail of the touching as she was asleep[; t]he tear in V.G.’s hymen discovered
some four years after the alleged incident could have been caused by any
number of things not related to [his] conduct[;] and finally even though [he]
admitted to touching V.G., he adamantly denied any penetration occurred.”
Appellant’s Brief at 9. We disagree.
[10] To prove Moore committed child molesting as a Level 1 felony, the State was
required to show that Moore, being at least twenty-one years old, knowingly or
intentionally performed or submitted to other sexual conduct with V.G., who
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was under the age of fourteen. Ind. Code § 35-42-4-3(a)(1). “Other sexual
conduct” is defined as an act involving “the penetration of the sex organ . . . of
a person by an object.” Ind. Code § 35-31.5-2-221.5(2). Our supreme court has
held that “proof of the slightest penetration of the sex organ, including
penetration of the external genitalia, is sufficient to demonstrate a person
performed other sexual [ ]conduct with a child.” Boggs v. State, 104 N.E.3d
1287, 1289 (Ind. 2018). “[P]enetration of the vaginal canal is not required to
prove Level 1 felony child molesting as charged here. The State need only have
proven penetration of [the victim’s] external genitalia.” Hale v. State, 128
N.E.3d 456, 463 (Ind. Ct. App. 2019) (internal citation omitted), trans. denied.
It is “physically impossible for [a defendant] to touch any part of [a victim’s]
vagina without having first penetrated her vulva, or external genitalia.” Id.(footnote omitted).
[11] Here, V.G. testified that Moore drove her home from the bowling alley in 2014.
She fell asleep in the truck and when she woke up her pants were unbuttoned
and unzipped, her underwear was crumpled down into her pants, her seatbelt
was off, and she experienced extreme pain in her vagina. Years later, forensic
nurses performed a physical examination on V.G. Both nurses testified that
V.G. was missing a small portion of hymen tissue. Neither nurse could
speculate as to when the injury occurred, but they both testified that V.G.’s
injury was indicative of penetration. Although Moore denied penetrating
V.G.’s vagina, he acknowledges that he admitted to “penetrating the outer
crack” of her vagina. Appellant’s Br. at 8. He also admitted to detectives that
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he put his fingers inside the lips of her vagina and admitted to fondling her for
five to ten minutes. As stated above, the State need not prove that Moore
penetrated V.G.’s vaginal canal; proof that he penetrated her external genitalia
is sufficient. Hale, 128 N.E.3d at 463. In essence, Moore’s argument is a
request for this court to reweigh the evidence and reassess the credibility of the
witnesses in his favor, which we cannot do. Drane, 867 N.E.2d at 146. We
conclude there is sufficient evidence from which the jury could conclude Moore
performed “other sexual conduct” with V.G.
Conclusion
[12] We conclude there is sufficient evidence from which a reasonable jury could
determine that Moore committed child molesting, a Level 1 felony.
Accordingly, we affirm his conviction.
[13] Affirmed.
Bailey, J., and Tavitas, J., concur.
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