Robert T. Davis v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 11 2019, 10:12 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
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert T. Davis, October 11, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-463
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D03-1711-FA-3
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-463 | October 11, 2019 Page 1 of 4
[1] Robert T. Davis appeals his conviction of Class A felony child molesting. 1
Davis argues the testimony presented was insufficient to find him guilty beyond
a reasonable doubt. We affirm.
Facts and Procedural History
[2] In June 2012, ten-year-old J.G. and her family were staying with J.G.’s
grandmother as they waited for their home to be finished. Davis, who is J.G.’s
uncle, also lived in the home. While staying there, J.G. and her older brother
slept on the living room floor. Davis slept on the couch in the living room.
One night, J.G. woke up to Davis digitally penetrating her vagina. When J.G.
woke up, Davis told her not to tell anyone, and he continued to molest her.
J.G. fled to the bathroom and began to cry. J.G.’s grandmother found J.G’s
nightgown in the trash the next day, but J.G. would not tell her why it was in
the trash. The J.G. and her family soon moved into their own home. Since
then, J.G. has stayed away from Davis and her grandmother’s home.
[3] In 2016, J.G. told her cousin about the incident. The cousin encouraged J.G.
to tell her mother. Eventually, J.G. told her mother, who reported the incident
to the police. On November 21, 2017, the State charged Davis with Class A
felony child molesting. A jury found him guilty. The court sentenced Davis to
1
Ind. Code § 35-42-4-3(a)(1) (2007).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-463 | October 11, 2019 Page 2 of 4
forty years, with thirty years to be served in prison and ten years suspended to
probation.
Discussion and Decision
[4] Davis argues there was insufficient evidence to support his conviction. When
considering the sufficiency of evidence, “a reviewing court does not reweigh the
evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d
124, 126 (Ind. 2005). We must affirm “if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt.” Id. at 126(internal citation omitted).
[5] To prove Davis committed Class A felony child molesting, the State needed to
prove: (1) Davis, (2) who was at least twenty-one years of age, (3) with J.G.,
who was ten, (4) performed or submitted to sexual intercourse or deviate sexual
conduct. See Ind. Code § 35-42-4-3(a)(1) (2007). Deviate sexual conduct was
“an act involving a sex organ of one person and the mouth or anus of another
person or the penetration of the sex organ or anus of a person by an object.”
Ind. Code § 35-41-1-9 (1984).
[6] Davis contends J.G.’s testimony was not sufficient to prove penetration. When
asked where Davis’ fingers were when he touched her, J.G. said “in the slit.”
(Tr. Vol. II at 159.) Davis argues J.G.’s failure to use anatomical terminology
to describe the incident left the jury with too vague a description for them to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-463 | October 11, 2019 Page 3 of 4
determine that Davis committed deviate sexual conduct. However, Davis does
not cite case law supporting his contention that correct anatomical terms must
be used by the victim to prove penetration. As the Indiana Supreme Court
explained:
[A] detailed anatomical description of penetration is unnecessary
and undesirable for two reasons. First, many people are not able
to articulate the precise anatomical features that were or were not
penetrated. Second, to require such detailed descriptions would
subject victims to unwarranted questioning and cross-
examination regarding the details and extent of penetration.
Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996). J.G.’s testimony was
sufficient to allow the jury to draw an inference as to whether penetration
occurred. See, e.g., D’Paffo v. State, 749 N.E.2d 1235, 1239 (Ind. Ct. App. 2001)
(minor victim’s testimony as to defendant sexually assaulting her with fingers
was sufficient to support child molesting conviction), summarily aff’d in relevant
part 778 N.E.2d 798, 803 n.2 (Ind. 2002).
Conclusion
[7] J.G.’s testimony was sufficient to permit the jury to reasonably infer penetration
occurred. The evidence therefore was sufficient to support Davis’s conviction
of Class A felony child molesting. Accordingly, we affirm.
[8] Affirmed.
Najam, J., and Bailey, J., concur.
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