J.A. 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 Apr 16 2020, 8:49 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
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.A., April 16, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-JV-2350
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Petitioner Marilyn Moores, Judge
The Honorable
Geoffrey Gaither, Magistrate
Trial Court Cause No.
49D09-1902-JD-213
Vaidik, Judge.
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Case Summary
[1] J.A. appeals his adjudication as a juvenile delinquent based on the juvenile
court’s finding that he committed acts that would be Level 3 felony child
molesting and Level 4 felony child molesting if committed by an adult. He
argues that the evidence is insufficient. Because we find the evidence is
sufficient, we affirm.
Facts and Procedural History
[2] On Thanksgiving Day in 2018, eight-year-old E.T. went to his uncle’s house to
celebrate. When E.T. arrived, he saw that his eleven-year-old nephew, J.A.,
was there too. Although E.T. was younger than J.A., E.T. was J.A.’s uncle.
After the family finished eating Thanksgiving dinner, E.T. and J.A. went
outside to play.
[3] After playing outside, J.A. went with E.T., E.T.’s mother, and E.T.’s
grandmother to a nearby CVS to rent some movies from Redbox. While E.T.’s
mother and grandmother were out of the car looking for movies, J.A. used his
phone to show E.T. some “bad videos, porn or something.” Tr. p. 14. When
E.T.’s mother and grandmother returned to the car, J.A. turned off the videos,
and the family drove to E.T.’s house.
[4] At E.T.’s house, J.A., E.T., and E.T.’s mother went to E.T.’s bedroom and
watched the first movie and began watching the second. During the second
movie, E.T.’s mother left and went to the basement to wash clothes. E.T.
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turned on his bedroom light and began playing with his new cowboy toys. J.A.
then turned to E.T. and asked, “can we have sex?” Id. at 16. E.T. said “no,”
but J.A. “just keep askin’.” Id. at 17. E.T. then left and went into the living
room. E.T.’s mother found him in the living room and told him to go back into
his bedroom. E.T.’s mother went with E.T. to his bedroom and stayed to
watch more of the second movie with E.T. and J.A., but eventually she turned
off the bedroom light and left.
[5] Once E.T.’s mother was gone, J.A. “started asking [to have sex] again.” Id. at
18. Eventually, E.T. said “yeah.” Id. E.T. and J.A. kept their clothes on but
pulled their pants down about “an inch” below their “butt.” Id. at 20. E.T.
would later testify that they then started “having sex.” Id. at 19. At some
point, E.T.’s penis was touching J.A.’s “butt,” and at another point, J.A.’s
penis was touching E.T.’s “butt.” See id. at 20. E.T. also recalled that while
they were having sex, J.A. “put his penis in [E.T.’s] bottom” and that E.T.’s
“bottom hurt” “a little bit.” Id. at 21-23.
[6] At some point, E.T.’s mother returned to E.T.’s bedroom and saw what was
happening. J.A. rolled off the bed and then E.T.’s mother “started whooping
both [E.T. and J.A.].” Id. at 19. E.T.’s brother, who had been upstairs,
overheard what was going on, came downstairs, and “started whooping [J.A.]”
Id. at 23. E.T.’s mother called J.A.’s mother. When J.A.’s mother arrived, she
had a “rubber bat” and beat J.A. Id. at 23. J.A.’s mother told J.A. to say that
he was sorry, which he did, and then J.A. and his mother left. See id. at 24.
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[7] E.T.’s mother then took E.T. to Riley Hospital for Children to be evaluated.
See Appellant’s App. Vol. II p. 15. A social worker at Riley contacted the
Department of Child Services to report “a child molest.” Id. Three days later,
E.T. was interviewed by a forensic child interviewer. After that interview, the
case was assigned to an IMPD detective. The detective interviewed E.T.’s
mother, who said that when she returned to E.T.’s bedroom, “she saw [J.A.’s]
naked butt and [E.T.] pulling his pants up.” Id. at 16. E.T.’s mother told the
detective that when she asked E.T. what was going on, E.T. said “[J.A.] put his
penis in my butt.” Id. The detective also interviewed J.A.’s mother, who said
that when she arrived at E.T.’s house, J.A. “told her that he saw something on
TV and he was curious. He had talked about it with [E.T.] and told [E.T.] to
pull his pants down.” Id. J.A.’s mother told the detective that J.A. said that
“he couldn’t get his penis into [E.T.’s] butt, so they were just ‘humping.’” Id. at
16-17. J.A.’s mother also allowed the detective to interview J.A. J.A. told the
detective that he “saw a commercial of two men in bed together and a late night
movie of two men having sex over a desk” and that he was “curious and
wanted to try it because the look on the men’s faces made it look like they were
having fun.” Id. at 17. J.A. also told the detective that he “tried to put his penis
in [E.T.’s] butt,” but he didn’t “think his penis went inside [E.T.’s] butt.” Id.
J.A. said to the detective that he “regrets what he did and wishe[d] that he
could take it back.” Id.
[8] In February 2019, the State filed a petition alleging J.A. to be a delinquent child
for committing two counts of child molesting, one for performing or submitting
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to an act involving J.A.’s penis and E.T.’s anus (a Level 3 felony if committed
by an adult) and one for touching or fondling (a Level 4 felony if committed by
an adult). Id. at 18. After the fact-finding hearing, where E.T. and the detective
both testified, the juvenile court entered a true finding on each count. In
September 2019, the juvenile court held a dispositional hearing and ordered that
J.A. be placed on probation. Some of the conditions of his probation included
that J.A. complete a psycho-sexual education program and that J.A. have no
contact with E.T.
[9] J.A. now appeals.
Discussion and Decision
[10] J.A. contends that the evidence is insufficient to support the juvenile court’s
true findings. When reviewing whether the State’s evidence was sufficient to
meet its burden, our standard is familiar. D.P. v. State, 80 N.E.3d 913, 915 (Ind.
Ct. App. 2017). We view the facts and the reasonable inferences from them in
the light most favorable to the true finding. Id. We neither reweigh the
evidence nor re-evaluate witness credibility. Id. We will affirm unless no
reasonable fact-finder could have found the elements of the crime proven
beyond a reasonable doubt. Id.[11] J.A. first contends that the evidence is insufficient to support a true finding for
Level 3 felony child molesting if committed by an adult. To sustain the true
finding that J.A. committed an act that would constitute Level 3 felony child
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molesting if committed by an adult, the State was required to prove beyond a
reasonable doubt that J.A., with a child under fourteen years of age, E.T.,
knowingly or intentionally performed or submitted to sexual intercourse or
other sexual conduct. Ind. Code § 35-42-4-3(a); Appellant’s App. Vol. II p. 18.
Indiana Code section 35-31.5-2-221.5 defines “other sexual conduct” as “an act
involving: (1) a sex organ of one (1) person and the mouth or anus of another
person; or (2) the penetration of the sex organ or anus of a person by an object.”
The State is not required to introduce evidence of penetration to establish
“other sexual conduct.” See Wisneskey v. State, 736 N.E.2d 763, 764 (Ind. Ct.
App. 2000) (“other sexual conduct” was formerly “deviate sexual conduct,” but
the definition remains the same). Instead, the State need only establish that the
delinquent committed a sex act with his penis involving the child’s anus. See id.[12] J.A. argues that the State’s evidence only shows that “J.A. rubbed his penis
against E.T.’s buttocks” and that “[t]here is no additional evidence that
demonstrates, beyond a reasonable doubt, that J.A.’s penis came into contact
with E.T.’s anus.” Appellant’s Br. p. 9. We disagree. E.T. testified that J.A.
“put his penis in [his] bottom.” Tr. pp. 21-22. E.T. also said that it hurt “a
little bit” when J.A. did so. Id. at 21. Moreover, as the State points out, the
evidence shows “that contact with E.T.’s anus was what J.A. intended to
accomplish because J.A. was attempting to replicate what he saw in a
pornographic video.” Appellee’s Br. p. 12; see also Tr. p. 17. This is all
sufficient evidence for the juvenile court to find that J.A.’s penis made contact
with E.T.’s anus.
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[13] J.A. next asserts that the evidence is insufficient to support a true finding for
Level 4 felony child molesting if committed by an adult. To sustain the true
finding that J.A. committed an act that would constitute Level 4 felony child
molesting if committed by an adult, the State was required to prove beyond a
reasonable doubt that J.A., with a child under fourteen years of age, E.T.,
performed or submitted to fondling or touching with the intent to arouse or
satisfy the sexual desires of either E.T. or himself. Ind. Code § 35-42-4-3(b);
Appellant’s App. Vol. II p. 18. We have held that it is unreasonable to infer
intent to satisfy or arouse sexual desires solely from the fact that a child
intentionally touched another child’s genitals given that children may
experiment by looking at and touching another child’s genitals. D.P., 80
N.E.3d at 916. Accordingly, we said that other circumstances must be present
that indicate such intent. Id.
[14] J.A. argues that the State failed to establish “that J.A.’s actions were
undertaken with the specific intent to satisfy either his or E.T.’s sexual desires.”
Appellant’s Br. p. 12. Instead, J.A. claims that the evidence shows that J.A.
“was acting out something he was curious about and that he thought was fun”
and that “[t]here’s nothing in the record to suggest [J.A.] even had sexual
desires.” Id. We disagree. The circumstantial evidence is sufficient to establish
that J.A. touched E.T. with the intent to arose or satisfy his or E.T.’s sexual
desires. First, the ages of the children are relevant. See T.G. v. State, 3 N.E.3d
19, 25 (Ind. Ct. App. 2014), trans. denied. J.A. was eleven years old and older
than E.T., who was eight. The purpose of the child-molesting statute “is to
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prohibit the sexual exploitation of children by those with superior knowledge or
experience who are therefore in a position to take advantage of children’s
naivety.” Id. Although a three-year age difference is not huge, the evidence
shows that J.A. had superior knowledge—demonstrated by his ability to access
pornographic videos with his cell phone—and was in a position to take
advantage of E.T.’s naivety as E.T.’s older family member. Second, J.A.
showed E.T. pornographic videos before repeatedly asking E.T. to have sex.
Third, J.A. told the detective that he “saw a commercial of two men in bed
together and a late night movie of two men having sex over a desk” and that he
was “curious and wanted to try it because the look on the men’s faces made it
look like they were having fun.” Tr. p. 17. Fourth, J.A. told the detective that
he “tried to put his penis in [E.T.’s] butt,” but he didn’t “think his penis went
inside [E.T.’s] butt.” Id. Fifth, J.A.’s mother told the detective that J.A. said
that “he couldn’t get his penis into [E.T.’s] butt, so they were just ‘humping.’”
Id. at 16-17. Given all these circumstances, a reasonable fact-finder could find
beyond a reasonable doubt that J.A. touched or fondled E.T. with the intent to
arouse or satisfy his or E.T.’s sexual desires. Accordingly, we affirm the
juvenile court’s delinquency adjudication.
[15] Affirmed.
May, J., and Robb, J., concur.
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