Adrian Vergara v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing
Jun 27 2017, 10:13 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adrian Vergara, June 27, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1612-CR-2806
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila Carlisle,
Appellee-Plaintiff. Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G03-1602-F4-6348
Bradford, Judge.
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Case Summary
[1] On the morning February 13, 2016, Appellant-Defendant Adrian Vergara was
working as a maintenance man for a residential apartment building when he
entered one of the apartments to complete a requested repair. While in the
apartment, Vergara came into contact with then-thirteen-year-old T.W., who
lived in the apartment with her mother. T.W. was home alone at the time.
Vergara engaged in a conversation with T.W. while he completed the requested
repair. During this conversation, he told T.W. that she was very beautiful and
requested hugs from T.W. When T.W. complied with his request for a hug,
Vergara held on to her and kissed her with an open mouth and his tongue.
[2] Vergara was subsequently charged with two counts of Level 4 felony child
molesting and Level 5 felony criminal confinement. He was found guilty as
charged after a bench trial. At sentencing, the trial court vacated one of the
Level 4 felony child molesting convictions and sentenced Vergara to an
aggregate six-year term with three years executed and three years suspended to
sex offender probation.
[3] On appeal, Vergara challenges the sufficiency of the evidence to sustain his
conviction for Level 4 felony child molesting. We affirm.
Facts and Procedural History
[4] In February of 2016, then-thirteen-year old T.W. lived with her mother in an
old Victorian home in Indianapolis that had been converted into apartments.
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Vergara, who was thirty-eight at the time, was employed as the “maintenance
man” for the apartment building. Tr. p. 11. T.W. was familiar with Vergara as
she had observed him completing maintenance in the building on prior
occasions. At some point prior to February 13, 2016, T.W.’s mother put in a
maintenance request after a shelf in T.W.’s closet broke. Upon receiving the
maintenance request, Vergara informed T.W.’s mother that he would contact
her before coming to make the repair.
[5] On the morning of February 13, 2016, T.W.’s mother awoke before T.W. and
walked to a nearby Dollar General store to purchase some items for breakfast.
When T.W.’s mother left the apartment, she locked the deadbolt on the front
door.
[6] T.W. noticed that her mother was gone when she woke up and went to use the
restroom. At the time, T.W. was wearing a “sports bra and green baggie sweat
pants.” Tr. p. 10. While T.W. was in the restroom, she heard a knock on the
front door. T.W. yelled for the person at the door to “hold on” before realizing
that the person had “let himself in.” Tr. p. 11. When T.W. came out of the
restroom, she saw Vergara “standing there.” Tr. p. 11. Vergara indicated that
he “was [there] to fix [the] closet.” Tr. p. 11. T.W. believed that although she
did not know that Vergara was scheduled to do maintenance work within the
apartment on that morning, she “thought that [her mother] knew” so she “just
went to [her] bedroom and sat on [her] bed while he was fixing the closet.” Tr.
p. 13. T.W. “was playing around on [her] phone” while making small talk with
Vergara as he worked in the closet. Tr. p. 13.
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[7] During her conversation with Vergara, T.W. indicated that people were
bullying her. Vergara responded by repeatedly telling T.W. that she “was very
beautiful.” Tr. p. 14. Vergara asked T.W. how old she was and T.W.
responded that she was thirteen.
[8] Vergara did not leave immediately after fixing the shelf in T.W.’s closet.
Instead, he “stayed a couple minutes after” and “kept asking for hugs.” Tr. p.
14. Vergara asked for hugs “more than once.” Tr. p. 14. T.W. “really didn’t
know how to respond” to Vergara’s requests. Tr. p. 14. Even though she did
not want to hug Vergara, eventually T.W. gave Vergara “hugs because [she]
didn’t know how to respond and [she] felt awkward in the situation.” Tr. p. 15.
T.W. felt “awkward” hugging Vergara. T.W. was standing on her bed when
she hugged Vergara, with her face “on his shoulder” and his arms “[a]round
[her] waist.” Tr. p. 15.
[9] The hug “ended normally,” but Vergara “kept asking for hugs” and eventually
began asking “for kisses.” Tr. p. 16. Vergara asked for kisses “more than
once.” Tr. p. 16. T.W. felt that Vergara “shouldn’t be asking me for kisses,
because he knows how old I am.” Tr. p. 16. T.W., who did not want to kiss
Vergara or for him to kiss her, indicated that she “felt really uncomfortable and
not safe.” Tr. p. 16.
[10] “Still feeling uncomfortable,” T.W. gave Vergara another hug. Tr. p. 17.
When she tried to pull away, Vergara “continued to hold” T.W. and his “lips
caught [her] lips.” Tr. p. 17. T.W. later explained that “[w]hen I pulled away,
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his lips caught my lips and he ended up kissing me and I tried to pull him away
again, his arms were still wrapped around me so I really couldn’t -- I, uh,
panicked.” Tr. p. 17. T.W. further explained that Vergara kissed her with an
open mouth and that “it “felt like he was trying to shove his tongue down my
throat.” Tr. p. 18. Afterward, T.W. felt “[r]eally, really, uncomfortable and
scared.” Tr. p. 18. After kissing T.W., Vergara indicated that he should go and
said that T.W.’s mother “would probably be mad.” Tr. p. 19. He then left the
apartment.
[11] After Vergara left the apartment, T.W. locked the deadbolt on the front door
and “put a chair under the doorknob.” Tr. p. 19. She then “panicked and ran
into” the restroom and called her grandmother and a friend. Tr. p. 19. T.W.
later recounted that while she was locked in the restroom,
I heard a knock on the door and I didn’t respond because I was
still on the phone with my grandma, and I heard the door being
unlocked and the chair moving and he was banging on the
bathroom door, I was on the phone with my grandma and I was
trying to tell her to be quiet because she was yelling into the
phone, and I didn't want him to know I was there.
Tr. p. 20.
[12] At some point, T.W.’s mother returned home. T.W. listened as her mother
entered the apartment and “made small talk” with Vergara. Tr. p. 21. T.W.
“peeked [her] head out of the bathroom door.” Tr. p. 21. T.W. was shaking
and crying while she hysterically mouthed to her mother “to get [Vergara] out
of the house.” Tr. p. 21. When Vergara “peeked over and saw” T.W., she
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“hurried and closed the bathroom door and locked it again and waited until he
left.” Tr. p. 21.
[13] T.W. exited the restroom after Vergara left the apartment and started to report
Vergara’s actions to her mother. Vergara re-entered the apartment while T.W.
was talking to her mother. Vergara did not knock and had not been invited
back in. When Vergara re-entered, T.W. “got very nervous, extremely
nervous.” Tr. p. 33. T.W.’s mother asked Vergara “what are you doing? I --
Sorry, but I have to get ready for work, you’re going to have to leave.” Tr. p.
33. After Vergara exited the apartment, T.W. told her mother what Vergara
had done. T.W.’s mother became “extremely irate.” Tr. p. 33. She ran out of
the apartment “looking for” Vergara and found him standing in the back
parking lot. T.W.’s mother then “ran straight upstairs and called the police.”
Tr. p. 34. Officers responded to the apartment and spoke to both T.W. and her
mother. Vergara was arrested later that morning.
[14] On February 18, 2016, Appellee-Plaintiff the State of Indiana (“the State”)
charged Vergara with two counts of Level 4 felony child molesting and one
count of Level 5 felony criminal confinement. The trial court conducted a
bench trial on October 14, 2016, after which it found Vergara guilty as charged.
The trial court subsequently vacated one of Vergara’s convictions for Level 4
felony child molesting due to double jeopardy concerns. The trial court then
sentenced Vergara to an aggregate term of six years for the remaining Level 4
felony child molesting and Level 5 felony criminal confinement convictions. In
imposing this sentence, the trial court ordered that three years were to be
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executed and three years suspended to sex offender probation. This belated
appeal follows.
Discussion and Decision
[15] Vergara contends that the evidence is insufficient to sustain his conviction for
Level 4 felony child molesting.1 Specifically, Vergara argues that the evidence
is insufficient to prove that he acted with the intent to arouse or sexually satisfy
either himself or T.W.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
1
Vergara does not challenge the sufficiency of the evidence to sustain his conviction for Level 5 felony
criminal confinement on appeal.
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reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
[16] Indiana Code section 35-42-4-3(b) provides that
A person who, with a child under fourteen (14) years of age,
performs or submits to any fondling or touching, of either the
child or the older person, with intent to arouse or to satisfy the
sexual desires of either the child or the older person, commits
child molesting, a Level 4 felony.
“Mere touching alone is insufficient to constitute the crime of child molesting.”
Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011) (citing 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. [Nuerge, 677 N.E.2d at 1048]. 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.
Bass, 947 N.E.2d at 460. Thus, in order to convict Vergara of Level 4 felony
child molesting, the State was required to prove not only that Vergara
performed or submitted to fondling or touching with T.W., a child under the
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age of fourteen, but also that he did so with the intent to arouse or satisfy the
sexual desires of either himself or T.W.
[17] In challenging the sufficiency of the evidence to sustain his conviction for Level
4 felony child molesting, Vergara does not dispute that on the date in question,
he performed or submitted to fondling or touching with T.W., a child under the
age of fourteen. Vergara argues only that the evidence is insufficient to prove
that he did so with the intent to arouse or to satisfy the sexual desires of either
himself or T.W.
[18] One may reasonably infer from the record that Vergara acted with the intent to
arouse or satisfy the sexual desires of either himself or T.W. During trial, T.W.
testified that Vergara told her that she was beautiful and repeatedly asked her
for hugs and kisses before kissing her with an open mouth as she tried to pull
away. T.W. further testified that Vergara attempted to use his tongue when
kissing her and that it “felt like he was trying to shove his tongue down [her]
throat.” Tr. Vol. II, p. 18. We have previously concluded that the “natural and
usual sequence associated with ‘tongue kissing’” is sexual arousal. See Davis v.
State, 956 N.E.2d 726, 730 n.3 (Ind. Ct. App. 2011) (citing People v. Calusinski,
733 N.E.2d 420, 426 (Ill. Ct. App. 2000) (providing that an open mouth tongue
or “French” kiss is an inherently sexual act which generally results in sexual
excitement and arousal, and, as such, one could reasonably infer that the
defendant intentionally placed his tongue in the victim’s mouth for purposes of
his own sexual arousal); Cornelius v. State, 445 S.E.2d 800, 804 (Ga. Ct. App.
1994) (providing that the evidence that defendant “French” kissed the eleven-
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year-old victim was sufficient to authorize the jury’s finding that the defendant
was guilty of child molestation with the intent to arouse his sexual desires)).
[19] The trial court found T.W.’s testimony regarding Vergara’s actions to be
credible. We will not second-guess this credibility determination on appeal. See
Stewart, 768 N.E.2d at 435. As such, in light of T.W.’s testimony coupled with
our previous decision in Davis, we conclude that the evidence is sufficient to
prove that Vergara acted with the requisite intent, i.e., the intent to arouse or
satisfy the sexual desires of either himself or T.W. Vergara’s claim to the
contrary amounts to an invitation to reweigh the evidence, which we will not
do. Id.
[20] The judgment of the trial court is affirmed.
Mathias, J., and Altice, J., concur.
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