Joseph Richardson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 28 2017, 6:55 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
Karen Celestino-Horseman Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Richardson, June 28, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1609-CR-2196
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff. Rothenberg, Judge
Trial Court Cause No.
49G02-1211-FB-76505
Robb, Judge.
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Case Summary and Issues
[1] Following a bench trial, Joseph Richardson was convicted of two counts of
child molesting, one count as a Class B felony and the other as a Class C felony.
Richardson appeals his convictions, raising two issues for our review, which we
restate as: 1) whether the evidence is sufficient to sustain his convictions, and 2)
whether his convictions violate the continuing crime doctrine. Concluding the
evidence is sufficient and Richardson’s convictions do not violate the
continuing crime doctrine, we affirm.
Facts and Procedural History
[2] In early 2012, twelve-year-old J.W. and her cousin, M.M., visited J.W.’s close
friend, M.H., at M.H.’s home. At some point, the trio went to eighteen-year-
old Richardson’s home, who lived with his parents next door. Richardson
provided alcohol to J.W. J.W. then began to feel ill and went outside.
Richardson followed J.W. and suggested the pair go into the garage. As soon
as they got into the garage, Richardson pulled J.W.’s pants down, but J.W. told
him “no,” pulled her pants back up, and sat down on a couch in the garage
where Richardson joined her. Transcript, Volume II at 14. Once seated,
Richardson pulled down J.W.’s pants and underwear and digitally penetrated
J.W.’s vagina. Richardson then stopped, took his pants and underwear off, and
penetrated J.W.’s vagina with his penis. J.W. began crying, but did not tell
Richardson to stop. Thereafter, Richardson returned to his house and J.W.
returned to M.H.’s home. At some point, J.W. explained Richardson’s acts to
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M.M. and M.M. immediately told J.W.’s mother, Heidi Coburn, who called
law enforcement. Law enforcement later interviewed Richardson. Before
informing Richardson of J.W.’s allegations, the detective asked Richardson
how old he believed J.W. was in early 2012. Richardson initially stated he
believed J.W. was fourteen years old in early 2012, but later expressed
uncertainty and claimed she may have been twelve or thirteen.
[3] On November 8, 2012, the State charged Robinson with two counts of child
molesting, one count as a Class B felony and the other as a Class C felony. At
trial, J.W. testified to Richardson’s acts. J.W.’s mother also testified. Coburn
explained she had previously interacted with Richardson at least ten times in
early 2012. The following exchange then occurred:
[State:] Did you have any concerns about the Defendant being
around J.W.?
[Coburn:] I know J.W. was in her preteens and she kind of
flirted, and I made comments to, Stay away from my daughter.
She’s only 12.
[State:] Okay. So you made comments to Joseph Richardson to
stay away from your daughter?
[Coburn:] Yes, ma’am. Yes, ma’am.
[State:] And you—
[Coburn:] On numerous times.
[State:] Okay. And did you specifically tell him her age?
[Coburn:] Yes.
[State:] Okay. Do you know how many times you had had
those kind of conversations with him telling him to stay away
because of how old she was?
[Coburn:] Yes, ma’am.
[State:] How many times?
[Coburn:] Almost every time I seen him.
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Id. at 34-55. Richardson also testified in his own defense, denying J.W.’s
allegations and explaining he “always thought she was 14.” Id. at 53.
Richardson was found guilty as charged and the trial court entered judgment of
conviction on both counts. This appeal ensued.
Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
[4] When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh the evidence nor judge witness
credibility. Smart v. State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015). Rather, we
consider only the evidence supporting the judgment and any reasonable
inferences arising from such evidence. Id. We will affirm a conviction unless
“no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citation
omitted).
B. Reasonable Belief Defense
[5] Richardson contends the evidence is insufficient to support his convictions.
Specifically, he claims his testimony establishes he reasonably believed J.W.
was at least fourteen years old. Child molesting is a Class B felony when a
person performs or submits to sexual intercourse or deviate sexual conduct with
a child under the age of fourteen. Ind. Code § 35-42-4-3(a) (2007). Child
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molesting is a Class C felony when a person performs or submits to any
fondling or touching of a child under the age of fourteen with the intent to
arouse or to satisfy the sexual desires of either the child or the person. Ind.
Code § 35-42-4-3(b) (2007). It is a defense to both offenses that the accused
reasonably believed the child was at least fourteen years old at the time of the
conduct. Garcia v. State, 936 N.E.2d 361, 364 (Ind. Ct. App. 2010) (citing T.M.
v. State, 804 N.E.2d 773, 774-75 (Ind. Ct. App. 2004)), trans. denied. “Such a
defense admits all the elements of the crime but proves circumstances that
excuse the defendant from culpability.” Weaver v. State, 845 N.E.2d 1066, 1069
(Ind. Ct. App. 2006), trans. denied. In order to invoke the defense, Richardson
must prove by a preponderance of the evidence that he reasonably believed
J.W. was at least fourteen years old when he molested her. See id. (noting that
when a defense addresses only culpability, the defendant’s burden is to prove
the defense by a preponderance of evidence).
[6] The evidence admitted at trial demonstrates J.W.’s mother told Richardson on
numerous occasions prior to the acts of molestation that he needed to stay from
J.W. because she was only twelve years old. In addition, prior to being told of
J.W.’s allegations, Richardson expressed a lack of confidence in his knowledge
of J.W.’s age, claiming to the detective he did not know her age and that J.W.
may be twelve or thirteen years old. Therefore, Richardson’s argument that his
testimony at trial established his reasonable belief J.W. was at least fourteen
years old when he molested her is merely a request for this court to reweigh the
evidence and reassess witness credibility, which we will not do. Smart, 40
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N.E.3d at 966. We conclude Richardson did not prove his reasonable belief
defense by a preponderance of evidence and the evidence is sufficient to support
his convictions.
II. Continuing Crime Doctrine
[7] Richardson contends his convictions violate the continuing crime doctrine.
Specifically, he argues his acts of digitally penetrating J.W. and then performing
intercourse were continuous acts constituting a single transaction. We disagree.
[8] The continuing crime doctrine “reflects a category of Indiana’s prohibition
against double jeopardy[,]” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App.
2010), and “defines those instances where a defendant’s conduct amounts only
to a single chargeable crime and prevents the State from charging a defendant
twice for the same continuous offense[,]” Koch v. State, 952 N.E.2d 359, 373
(Ind. Ct. App. 2011), trans. denied. Specifically, the doctrine “provides that
actions that are sufficient in themselves to constitute separate criminal offenses
may be so compressed in terms of time, place, singleness of purpose, and
continuity of action as to constitute a single transaction.” Id.[9] In Firestone v. State, 838 N.E.2d 468 (Ind. Ct. App. 2005), S.W. invited Bradley
Griffin and Clay Firestone to her home. After having a few drinks, Griffin
playfully tossed S.W. on the bed and S.W. explained she did not want to have
sex. As S.W. attempted to rise from the bed, Griffin pinned her down by
placing his knees on her shoulders. Griffin then removed S.W.’s pants and
underwear and forced S.W. to perform oral sex on him. As Griffin continued
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to force S.W. to perform oral sex, Firestone entered the bedroom and forced his
penis inside S.W.’s vagina. Griffin and Firestone then switched places and
Firestone pinned S.W. down and forced S.W. to perform oral sex on him.
Firestone was later convicted of rape as a Class B felony and criminal deviate
conduct as a Class B felony.
[10] On appeal, Firestone contended his convictions violated the continuing crime
doctrine, arguing his actions constituted a single transaction because both
offenses occurred in a short period of time and in the same bedroom. We
disagreed, noting,
Firestone clearly committed two different offenses at different
times. After he finished raping S.W., he took the time to switch
places with Griffin by climbing on top of S.W. and shoving his
penis in her mouth. The continuity of the actions does not
negate the fact that they were completely different sexual acts
committed at different times. It would be impossible for
Firestone to have his penis inside S.W.’s vagina and in her
mouth at the same time. Thus, because the rape was separate in
time from the criminal deviate conduct, we cannot conclude that
Firestone’s actions fall within the continuing crime doctrine.
Id. at 472.
[11] In Chavez v. State, 988 N.E.2d 1226 (Ind. Ct. App. 2013), trans. denied, Chavez
was alone in a room with eight-year-old K.W. when he kissed K.W. on the
mouth and inserted his tongue into her mouth. While kissing her, Chavez
placed his hand on K.W.’s buttocks and breasts. Chavez then left the room, but
later re-entered and a second encounter ensued. Chavez again kissed K.W. on
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the mouth and inserted his tongue into her mouth. While kissing her, Chavez
placed his hand on K.W.’s vagina, but outside her clothes. As to the first
encounter, the State charged Chavez with three counts of child molesting as
Class C felonies, citing the act of kissing J.W., touching her buttocks, and
touching her breasts. As to the second encounter, the State charged Chavez
with two counts of child molesting as Class C felonies, citing the act of kissing
J.W. and touching her vagina outside her clothes. Chavez was convicted on all
five counts.
[12] On appeal, Chavez argued his convictions violated the continuing crime
doctrine, contending his acts were continuous and amounted to one single
chargeable crime. We concluded Chavez only committed two chargeable acts
of child molesting, not five. As to the first encounter, we acknowledged Chavez
committed three different acts, but concluded the acts of touching J.W.’s
buttocks and breasts were done “[w]hile kissing” J.W., and therefore “[t]hose
three acts were so compressed in terms of time, place, singleness of purpose,
and continuity of action as to constitute a single transaction.” Id. at 1229
(citations and internal quotation marks omitted). We applied the same logic
and reasoning to the second encounter. See id. at 1229-30. Ultimately, the trial
court was instructed on remand to vacate three of the five convictions.
[13] Similar to Firestone, Richardson committed two different offenses at two
different times. Richardson first pulled down J.W.’s pants and underwear and
digitally penetrated J.W.’s vagina. Richardson then stopped and “took the
time” to remove his pants and underwear. See Firestone, 838 N.E.2d at 472. He
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then proceeded to insert his penis into J.W.’s vagina. And unlike the first and
second encounters addressed in Chavez, Richardson did not commit one act
“while” committing the other. See 988 N.E.2d at 1229. For these reasons, we
conclude Richardson’s convictions do not violate the continuing crime
doctrine.
Conclusion
[14] Richardson failed to satisfy his burden of proving he reasonably believed J.W.
was at least fourteen years old when he molested her and we conclude the
evidence is sufficient to sustain his convictions. We further conclude
Richardson’s convictions do not violate the continuing crime doctrine.
Accordingly, we affirm.
[15] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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