Htar Kyoo v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 17 2015, 9:50 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John C. Bohdan Gregory F. Zoeller
Allen County Public Defender’s Office Attorney General of Indiana
Fort Wayne, Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Htar Kyoo, February 17, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1405-CR-149
v. Appeal from the
Allen Superior Court
State of Indiana,
The Honorable John F. Surbeck, Jr.,
Appellee-Plaintiff. Judge
Cause No. 02D05-1309-FB-158
Kirsch, Judge.
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[1] Htar Kyoo (“Kyoo”) appeals his conviction of rape as a Class B felony.1 He
presents one issue on appeal: whether the evidence presented at trial was
sufficient to sustain his conviction.
[2] We affirm.
Facts and Procedural History
[3] Kyoo, his wife, and his children lived in a two-bedroom home in Fort Wayne,
Indiana with two other families. Most of the home’s occupants slept
communally on the floor of the living room. Kyoo, on the other hand, slept on
a mattress in the basement. Except for those occasions when he asked his wife
to join him in the basement, he slept there alone. On September 6, 2013, N.M.,
Kyoo’s fifteen-year-old daughter decided to sleep in the basement. When Kyoo
returned home from work late that night, his wife informed him his daughter
was asleep downstairs, so Kyoo joined his wife and slept in the living room.
[4] The following night, N.M. again decided to sleep in the basement. Kyoo
returned home late that night, drank either two or three beers, and went down
to the basement to go to sleep. Kyoo got into bed with his sleeping daughter
and began to fondle and caress her and ultimately began to have vaginal
intercourse with her. N.M. woke up with Kyoo on top of her and his penis
inside her vagina. She pushed him off of her and fled upstairs. Kyoo followed
1
See Ind. Code § 35-42-4-1.
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and returned with his wife (and N.M.’s mother) to the basement to have
intercourse. The following morning, N.M. told her mother what happened and
used her mother’s phone to call the police. Kyoo was taken into custody later
that day.
[5] The State charged Kyoo with rape as a Class B felony, sexual misconduct with
a minor as a Class B felony, and sexual misconduct with a minor as a Class C
felony. At trial, Kyoo raised the defense of mistake of fact, alleging that he
believed the woman he was having sex with was his wife, not his daughter.
After having been instructed on mistake of fact, the jury found Kyoo guilty on
all counts. At sentencing, the court merged the other two charges with the rape
charge. Kyoo now appeals his conviction.
Discussion and Decision
[6] When a defendant claims that the evidence presented at trial was insufficient to
support a conviction, we neither reweigh the evidence nor judge the credibility
of the witnesses; rather, we examine only the evidence most favorable to the
judgment, together with all of the reasonable and logical inferences to be drawn
therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct. App. 2010), trans.
denied. A conviction may be sustained based on circumstantial evidence alone
if that circumstantial evidence supports a reasonable inference of guilt. Maul v.
State, 731 N.E.2d 438, 439 (Ind. 2000). We do not reweigh the evidence, and
we consider conflicting evidence most favorable to the trial court's ruling.
Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005).
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[7] Kyoo argues that the State did not present sufficient evidence to establish that
he knew he was having sexual intercourse with his daughter. At trial, the State
presented evidence that: (1) N.M. had slept in the basement the night before,
Tr. at 139; (2) there was sufficient ambient light in the basement to see clearly,
Tr. at 147; and (3) Kyoo had made prior inconsistent statements regarding the
events on the night in question, Tr. at 252. From this evidence and the
reasonable inferences therefrom, a jury could reasonably believe N.M.’s
testimony over Kyoo’s testimony and, therefore, conclude beyond a reasonable
doubt that Kyoo knew he was sleeping with his daughter. Any argument that
Kyoo’s testimony ought to be believed over N.M.’s would amount to asking us
to reweigh the evidence, which we may not do. We conclude that the evidence
presented at trial was sufficient to support Kyoo’s conviction.
Affirmed.
Friedlander, J., and Crone, J., concur.
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