David S. Willamowski 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 Nov 08 2018, 8:53 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Vincent M. Campiti Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David S. Willamowski, November 8, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-924
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff Judge
Trial Court Cause No.
71D03-1605-F4-19
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-924 | November 8, 2018 Page 1 of 6
[1] David S. Willamowski appeals his conviction for Level 4 felony child
molesting. He contends the evidence was insufficient to support the conviction.
[2] We affirm.
Facts & Procedural History
[3] On May 6, 2016, eleven-year-old E.L. spent the night at her friend T.W.’s
home. Willamowski is T.W.’s father. That night, T.W.’s mother, older brother
(D.W.), and D.W.’s friend (C.H.) were also at the home. At some point late
that night, D.W. went to bed in his room, and T.W. fell asleep in a recliner in
the living room. C.H. and E.L. remained in the living room on their individual
electronic devices. Willamowski came downstairs and joined them in the living
room. Eventually, C.H., E.L., and Willamowski were all seated on the couch.
C.H. was at one end intently focused on the game he was playing on his device.
E.L. was sitting between C.H. and Willamowski.
[4] While seated next to E.L., Willamowski began touching her leg. He rubbed his
hand on the middle of her thigh, including both her top and inner thigh area.
E.L. was wearing leggings. He then moved his hand upward until he reached
her vagina. He continued “rubbing in a circular motion” for several minutes
over her leggings. Transcript at 30. E.L. was scared and said nothing.
Willamowski then lifted E.L. onto his lap, grabbed her left hand, and placed it
on his thigh, squeezing her hand. He said, “Do you like that?” Id. at 31. He
then continued “rubbing [her] vagina”. Id. After a few more minutes, E.L.
stood up and went upstairs to put on her pajamas.
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[5] Although he had been focused on his game, C.H. saw E.L. on Willamowski’s
lap, saw him rubbing her leg near the top of her thigh, and heard him ask if she
liked that. This made C.H. feel uncomfortable. C.H. moved to the other
recliner after E.L. went upstairs to change.
[6] When E.L. returned downstairs, she asked C.H. if she could sleep on the
recliner. He agreed and moved to the couch to sleep. T.W. was still asleep on
the other recliner. Willamowski then stood up and said he was going up to bed.
After a few minutes, E.L. began to cry, which woke up T.W. and C.H. She
told T.W. about what had happened with Willamowski. T.W. was “scared and
sad and she didn’t believe it.” Id. at 32. C.H. supported E.L. during this
discussion. The three then went to sleep.
[7] On May 20, 2016, the State charged Willamowski with one count of child
molesting as a Level 4 felony. The first trial ended in a mistrial due to a
deadlocked jury. Following a second jury trial, which commenced on February
12, 2018, Willamowski was convicted as charged and sentenced to a six-year
suspended sentence.
Discussion & Decision
[8] On appeal, Willamowski challenges the sufficiency of the evidence. When we
consider a challenge to the sufficiency of the evidence, we neither reweigh the
evidence nor assess the credibility of the witnesses. Suggs v. State, 51 N.E.3d
1190, 1193 (Ind. 2016). Instead, we consider only the evidence and reasonable
inferences supporting the conviction. Id. We will affirm if there is probative
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evidence from which a reasonable trier of fact could have found the defendant
guilty beyond a reasonable doubt. Id. Further, “it is well settled that the
uncorroborated testimony of the victim, even if the victim is a minor, is
sufficient to sustain a conviction for child molesting.” Carter v. State, 31 N.E.3d
17, 30 (Ind. Ct. App. 2015), trans. denied.
[9] To convict Willamowski of child molesting as charged, the State was required
to prove beyond a reasonable doubt that Willamowski: 1) performed or
submitted to fondling or touching of E.L.; 2) when E.L. was under the age of
fourteen; 3) with the intent to arouse or satisfy the sexual desires of E.L. or
Willamowski. See Ind. Code § 35-42-4-3(b). Touching alone, therefore, is not
sufficient to constitute the crime of child molesting. Bass v. State, 947 N.E.2d
456, 460 (Ind. Ct. App. 2011), 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.” Id. This intent element may be
established by circumstantial evidence and inferred from the defendant’s
conduct and the natural and usual sequence to which such conduct usually
points. Id.
[10] Willamowski challenges only the intent element and argues that no credible
evidence exists that his touching of E.L. was in an area where one could infer
beyond a reasonable doubt that he was attempting to gratify anyone’s sexual
desires. He asserts that an “equally plausible inference” is that he was just
innocently rubbing her thigh. Appellant’s Brief at 15. Willamowski claims that
E.L.’s testimony that he rubbed her vagina over her leggings is not trustworthy.
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In this regard, he notes that C.H. only saw him rubbing her thigh when he
looked up from his device, that neither C.H. nor E.L. observed Willamowski
with an erection, that he made no demands of E.L during or after the touching,
and that E.L. had changed her testimony regarding the extent of the vaginal
rubbing.
[11] We reject Willamowski’s blatant request for us to reweigh the evidence and
judge witness credibility. Defense counsel presented each of these arguments to
the jury, and the jury chose to find him guilty of child molesting. The verdict
was supported by sufficient evidence. Indeed, E.L. testified that Willamowski
began rubbing her thigh, including her inner thigh, while she sat next to him on
the couch. Eventually, he moved his hand up her thigh and toward her vagina
as he rubbed in a circular motion over her leggings. E.L., who was eleven years
old at the time, said nothing to Willamowski because she was scared. After
several minutes, he lifted her onto his lap and placed her left hand on his thigh.
He asked her, “Do you like that?” Transcript at 31. He then resumed rubbing
her vagina until E.L. stood up and went upstairs. E.L.’s testimony alone is
sufficient to support the conviction. In addition to her testimony, C.H. testified
that, despite being preoccupied with his device, he noticed E.L. on
Willamowski’s lap, saw Willamowski rubbing E.L.’s upper thigh, and heard the
question posed. Additionally, T.W. was awakened by her crying friend after
Willamowski went to bed, and E.L. told her about the touching. Based on all
of this evidence, the jury could have reasonably inferred that Willamowski
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rubbed E.L.’s vagina with the intent to arouse or satisfy his or E.L.’s sexual
desires.
[12] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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