Harry H. Rogers 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 Jan 17 2020, 10:19 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
Stephenie K. Gookins Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC Attorney General of Indiana
Carmel, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Harry H. Rogers, January 17, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1509
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Michael A. Casati,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-1802-FA-1470
Bradford, Chief Judge.
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Case Summary
[1] Harry H. Rogers was charged with and convicted of Count I–Class A felony
child molestation (“Count I”), Count II–Class A felony child molestation
(“Count II”), Count III–Class C felony child molestation (“Count III”), and
Count IV–Class D felony performing sexual conduct in the presence of a minor
(“Count IV”) for acts involving his granddaughter. He was subsequently
sentenced to an aggregate term of forty years and found to be a credit-restricted
felon. On appeal, Rogers challenges the sufficiency of the evidence to sustain
his convictions. Alternatively, he contends that the trial court erred by
sentencing him as a credit-restricted felon. Because we conclude that the
evidence is sufficient to sustain Rogers’s convictions and that Rogers was
properly found to be a credit-restricted felon, we affirm.
Facts and Procedural History
[2] Kelly Barresi is the mother of K.Y., who was born February 6, 2002.
Christopher Yazel is the adoptive father of K.Y. Barresi and Yazel are also the
parents of C.Y., who was born in 2005. Rogers is Yazel’s step-father.
[3] In or about September of 2005, Barressi, Yazel, K.Y. and C.Y. moved to
Indianapolis from Michigan City. Yazel’s mother Diane and Rogers eventually
followed the family to the Indianapolis area. Diane and Rogers served as a
support system for Barressi and Yazel and frequently babysat for K.Y. and C.Y.
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Diane and Rogers typically babysat for the children at either their residence in
Carmel or Yazel’s apartment.
[4] On one occasion when Rogers was babysitting for then-six-year-old K.Y. at his
residence in Carmel, Rogers inappropriately touched K.Y. by rubbing “[i]n
between” her labia for approximately ten to fifteen minutes. Tr. Vol. II p. 246.
Rogers instructed K.Y. not to tell anyone. K.Y. indicated that similar acts
occurred “more than once” at Rogers’s home “[w]henever [Rogers] got the
chance to babysit [K.Y. and C.Y.] alone.” Tr. Vol. II p. 247. Similar acts also
occurred when Rogers babysat for K.Y. at Yazel’s apartment when K.Y. was
seven or eight years old.
[5] On another occasion when K.Y. was six or seven years old, K.Y. went with
Rogers from his residence in Carmel to a nearby Dairy Queen. While in the
Dairy Queen parking lot, Rogers started tickling and rubbing K.Y.’s vagina
with his hand over her clothes. Rogers again instructed K.Y. “[d]on’t tell.” Tr.
Vol. III p. 3.
[6] On yet another occasion when Rogers was babysitting for K.Y., Rogers took
K.Y. into an upstairs bedroom of Yazel’s apartment and “touched [her] vagina
with his penis.” Tr. Vol. III p. 5. Rogers took K.Y.’s “pants off and pulled
[her] under down and started rubbing [her] with his hand again and put his
penis … [i]n between” her labia. Tr. Vol. III p. 5. Rogers’s conduct lasted for
five or ten minutes and made K.Y. feel “[c]onfused and uncomfortable.” Tr.
Vol. III p. 5. K.Y. was seven or eight years old during this occurrence.
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Following one of the instances of touching in Yazel’s apartment, Rogers
collected lotion from an upstairs bedroom and rubbed lotion on his penis while
in K.Y.’s presence.
[7] When K.Y. was about eight or nine years old, she began doing “everything in
[her] power to avoid” Rogers. Tr. Vol. III p. 3. As she grew older, K.Y.
developed physical and verbal “tics” and, when she was twelve years old, began
engaging in self-harming behaviors. Tr. Vol. II p. 222. On February 12, 2018,
K.Y. cut her wrists after an argument with Barresi. Barresi took K.Y. to the
hospital where K.Y. first disclosed Rogers’s prior inappropriate actions. K.Y.
was hesitant to disclose Rogers’s actions because she thought nothing could be
done about it.1 She also “wasn’t sure if [she] would be believed” because
Rogers “has been made out to seem like a person who loves his family and God
and is hard working, and [K.Y.] didn’t know if they would believe a troubled
teenager who had this happen so long ago.” Tr. Vol. III pp. 9, 10. Following
disclosure, K.Y. has seemed happier, smiled more, been more social and
affectionate, and has experienced an improved relationship with Yazel. K.Y.
“seemed to just have this weight lifted off of her shoulders, that she had let go
of this secret and was instantly different and better.” Tr. Vol. II p. 223.
[8] On February 23, 2018, the State charged Rogers with Counts I through IV. The
matter proceeded to a three-day jury trial. During trial, K.Y. detailed numerous
1
K.Y. falsely believed that nothing could be done after learning about statutes of limitation on “Law &
Order: Special Victims Unit.” Tr. Vol. III p. 11.
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instances of molestation by Rogers. On May 15, 2019, the jury found Rogers
guilty as charged. The trial court subsequently sentenced Rogers to terms of
forty years on each of Counts I and II, six years on Count III, and three years
on Count IV, all of which were ordered to be served concurrently for an
aggregate forty-year sentence. The trial court also found Rogers to be a credit-
restricted felon.
Discussion and Decision
[9] On appeal, Rogers contends that the evidence is insufficient to sustain his
convictions. Alternatively, he contends that the trial court erred in sentencing
him as a credit-restricted felon.
I. Sufficiency of the Evidence
[10] “Our standard of review for challenges to the sufficiency of the evidence is well-
settled.” Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015).
We do not reweigh evidence or reassess the credibility of
witnesses when reviewing a conviction for the sufficiency of the
evidence. We view all evidence and reasonable inferences drawn
therefrom in a light most favorable to the conviction, and will
affirm if there is substantial evidence of probative value
supporting each element of the crime from which a reasonable
trier of fact could have found the defendant guilty beyond a
reasonable doubt.
Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (internal citation and quotation
omitted). This is because the factfinder, and not the appellate court, “is obliged
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to determine not only whom to believe, but also what portions of conflicting
testimony to believe, and is not required to believe a witness’s testimony[.]”
Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (internal quotation and
brackets omitted). Further, “the uncorroborated testimony of a child victim is
sufficient to support a conviction for child molesting.” Stewart v. State, 768
N.E.2d 433, 436 (Ind. 2002).
A. Counts I & II
[11] Rogers challenges his convictions under Counts I and II, arguing that the
evidence is insufficient to prove that he committed two counts of Class A felony
child molesting. In order to prove that Rogers committed these offenses, the
State was required to prove that Rogers, on two separate occasions, being at
least twenty-one years of age, performed or submitted to sexual intercourse or
sexual deviate conduct with a child under fourteen years of age. Ind. Code §
35-42-4-3(a).
[12] The State alleged in Count I that between February 6, 2008 and May 31, 2012,
“Rogers, a person of at least twenty-one (21) years of age, did perform deviate
sexual conduct with K.Y., a child under the age of fourteen years.” Appellant’s
App. Vol. II p. 19. The State alleged in Count II that between February 6, 2008
and May 31, 2012, “Rogers, a person of at least twenty-one (21) years of age,
did perform sexual intercourse or deviate sexual conduct with K.Y., a child
under the age of fourteen years … such conduct involving the penis of [Rogers]
and the vagina of K.Y.” Appellant’s App. Vol. II p. 19. Penetration “may be
proven by evidence of any penetration of the female sex organ, including
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external genitalia such as the vulva or labia.” Adcock v. State, 22 N.E.3d 720,
728 (Ind. Ct. App. 2014) (citing Short v. State, 564 N.E.2d 553, 559 (Ind. Ct.
App. 1991)). Deviate sexual conduct includes the penetration of the sex organ
with a finger. See Simmons v. State, 746 N.E.2d 81, 86 (Ind. Ct. App. 2001),
trans. denied.
[13] Rogers often babysat for K.Y. at his residence in Carmel. On one such
occasion when K.Y. was six years old, Rogers, while alone in a room with
K.Y., removed K.Y.’s jeans, “pulled [her] underwear down,” and “started
touching” her vagina. Tr. Vol. II p. 245. While doing so, Rogers rubbed K.Y.
“[i]n between” the labia for approximately ten to fifteen minutes. Tr. Vol. II p.
246. Rogers told K.Y. “[s]omething along the lines of don’t tell anyone,”
making her feel “[w]eird” and “[u]ncomfortable.” Tr. Vol. II p. 246. K.Y.
indicated that similar acts occurred “more than once” at Rogers’s home
“[w]henever [Rogers] got the chance to babysit [K.Y. and C.Y.] alone.” Tr.
Vol. II p. 247.
[14] K.Y. testified to another instance of molestation that occurred when she was
seven or eight years old in Yazel’s two-story townhome apartment. On this
occasion, Rogers and her grandmother were babysitting for her and C.Y. when
Rogers took her upstairs into her father’s bedroom alone. Rogers “asked [C.Y.]
if [her] jeans were uncomfortable,” removed her jeans and underwear, “laid
[her] down on the bed,” and started licking her vagina. Tr. Vol. II p. 249.
Rogers also rubbed C.Y.’s vagina “[i]n between” her labia with his hand. Tr.
Vol. II p. 250. When C.Y. attempted to yell for her grandmother, Rogers “put
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his hand over [her] mouth.” Tr. Vol. II p. 250. This encounter lasted
approximately five or ten minutes and made K.Y. feel “[w]eird and
uncomfortable.” Tr. Vol. II p. 250. As with prior instances of molestation,
Rogers again instructed K.Y. “[d]on’t tell anybody.” Tr. Vol. II p. 250.
Specifically, he told her “this is what all grandfathers do and that he did it to all
[her] cousins and that it was okay.” Tr. Vol. III p. 2.
[15] K.Y. further testified that on another instance in Yazel’s apartment when she
was seven or eight, Rogers “touched [her] vagina with his penis.” Tr. Vol. III
p. 5. On this occasion, Rogers took K.Y.’s pants off and pulled her underwear
down. He then “started rubbing [her] with his hand again and put his penis …
[i]n between” her labia. Tr. Vol. III p. 5. Rogers’s conduct lasted for five or ten
minutes and made K.Y. feel “[c]onfused and uncomfortable.” Tr. Vol. III p. 5.
[16] It is uncontested that Rogers, who was born on December 19, 1955, was well
over the age of twenty-one when he committed all of the above-described acts.
K.Y. detailed multiple occurrences of molestation, some involving sexual
deviate conduct and at least one involving sexual intercourse. K.Y.’s testimony
is sufficient to prove that Rogers committed Class A felony child molesting as
charged in Counts I and II.2
2
We note that in challenging the sufficiency of the evidence to sustain his conviction under Count II, Rogers
argues that the State failed to prove proper venue. However, Rogers has waived his challenge relating to
venue because he did not raise any objection or challenge to venue at trial. See Floyd v. State, 503 N.E.2d 390,
393 (Ind. 1987) (“Many times this Court has held that a defendant waives error relating to venue when he
fails to make an objection at the appropriate time in the trial court.”); see also Martin v. State, 247 Ind. 592, 594
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B. Count III
[17] Rogers challenges his conviction under Count III, arguing that the evidence is
insufficient to prove that he committed Class C felony child molesting. In order
to prove that Rogers committed Class C felony child molesting, the State was
required to prove that Rogers, with a child under fourteen years of age,
performed or submitted to any fondling or touching of either himself or the
child with the intent to arouse or to satisfy the sexual desires of either himself or
the child. Ind. Code § 35-42-4-3(b).
[18] The State alleged that between February 6, 2008 and May 31, 2012, Rogers
performed “fondling or touching with K.Y., a child under the age of fourteen
years … with the intent to arouse or satisfy the sexual desires of the child or
defendant.” Appellant’s App. Vol. II pp. 19–20. K.Y. testified that when she
was six or seven years old, she went with Rogers from his residence in Carmel
to a nearby Dairy Queen. While in the Dairy Queen parking lot, Rogers started
tickling and rubbing K.Y.’s vagina with his hand over her clothes. Rogers
instructed K.Y. “[d]on’t tell.” Tr. Vol. III p. 3.
[19] In challenging his conviction, Rogers argues that the evidence is insufficient to
prove that he acted with the intent to arouse either his or K.Y.’s sexual desires.
“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
219 N.E.2d 902, 904 (1966) (“In the present case the question of venue was not raised in the trial court and
therefore could not properly have been raised for the first time on appeal.”).
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usual sequence to which such conduct usually points.” Bass v. State, 947 N.E.2d
456, 460 (Ind. Ct. App. 2011), trans. denied. Rogers’s conduct together with the
natural and usual sequence to which such conduct usually points supports the
inference that Rogers intended to arouse either his or K.Y.’s sexual desires
when he tickled and rubbed K.Y.’s sex organ with his hand. The evidence is
sufficient to sustain Rogers’s conviction for Class C felony child molesting.
C. Count IV
[20] Rogers also challenges the sufficiency of the evidence to prove that he
committed Class D felony performing sexual conduct in the presence of a
minor. In order to prove that Rogers committed this crime, the State was
required to prove that Rogers, with a child under fourteen years of age, touched
or fondled himself in the presence of the child with the intent to arouse or
satisfy the sexual desires of either himself or the child. Ind. Code § 35-42-4-
5(c)(3).
[21] The State alleged that between February 6, 2008 and May 31, 2012, “Rogers,
being at least eighteen years of age … did knowingly or intentionally fondle or
touch himself in the presence of K.Y., a child under the age of fourteen, … with
the intent to arouse or satisfy the sexual desires of [Rogers] or K.Y.”
Appellant’s App. Vol. II p. 20. K.Y. testified that following one of the instances
of molestation that occurred in Yazel’s apartment, Rogers went into the
bathroom and collected lotion which he then rubbed on his penis in front of
K.Y.
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[22] It is uncontested that K.Y. was younger than fourteen and Rogers was well over
eighteen years of age when he committed this act. Also, given that Rogers
rubbed the lotion onto his penis immediately after he inappropriately touched
K.Y., one can reasonably infer that he did so with the intent to arouse either his
or K.Y.’s sexual desires. The evidence is sufficient to sustain Roger’s
conviction for Class D felony performing sexual conduct in the presence of a
minor.3 See Bass, 947 N.E.2d at 460.
II. Credit-Restricted Felon Classification
[23] A defendant’s status as a credit-restricted felon is relevant to his assignment to a
credit-time class and, in turn, affects his accrual of credit time toward his
sentence. See Neal v. State, 65 N.E.3d 1139, 1141 (Ind. Ct. App. 2016). Indiana
Code section 35-41-1-5.5, which went into effect on July 1, 2008, defines credit-
restricted felon as “a person who has been convicted of … [c]hild molesting
involving sexual intercourse [or] sexual deviate conduct … if: (A) the offense is
committed by a person at least twenty-one (21) years of age; and (B) the victim
is less than twelve (12) years of age.”
[24] In arguing that the trial court erred in classifying him as a credit-restricted felon,
Rogers asserts that his classification as a credit-restricted felon under Count I
violates the constitutional prohibition of ex post facto laws. “Both the United
3
Rogers challenges his conviction under Count IV by arguing that the State failed to prove proper venue.
However, for the reasons set forth in Footnote #2 on page 9, Rogers’s venue challenge fails.
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States Constitution and the Indiana Constitution prohibit ex post facto laws.”
Upton v. State, 904 N.E.2d 700, 705 (Ind. Ct. App. 2009). “The analysis is the
same under both.” Id. (internal quotation omitted). “To fall within the ex post
facto prohibition, a law must be retrospective—that is, it must apply to events
occurring before its enactment—and it must disadvantage the offender affected
by it.” Id. (internal quotation omitted).
[25] As the State seems to acknowledge, it would constitute an impermissible
violation of ex post facto prohibitions to attach the credit-restricted felon
classification to Count I, which included a time frame before the statute
creating the classification was enacted, i.e., May of 2008 to June 30, 2008. The
State argues, however, that Rogers’s classification as a credit-restricted felon is
proper given that the trial court clearly indicated in its oral sentencing statement
that the classification attached to Count II. When oral and written sentencing
statements conflict, we examine the statements together to discern the intent of
the sentencing court. See Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App.
2010). In this case, the trial court’s intent was clear. In its oral sentencing
statement, the trial court found Rogers to be a credit-restricted felon with
regards to the actions which occurred when K.Y. was seven or eight years old.
There is no question that K.Y. turned seven after Indiana Code section 35-41-1-
5.5 went into effect and that all of the charged conduct in Count II occurred
when K.Y. was seven or eight years old. It would not violate ex post facto
prohibitions to classify Rogers as a credit-restricted felon as to Count II. The
trial court, therefore, properly classified Rogers as a credit-restricted felon.
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[26] The judgment of the trial court is affirmed.
Robb, J., and Altice, J., concur.
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