O.L. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 02 2015, 9:04 am
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
Corey L. Scott Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
O.L., November 2, 2015
Appellant-Respondent, Court of Appeals Case No.
49A04-1501-JV-42
v. Appeal from the Marion Superior
Court, Juvenile Division
State of Indiana, The Honorable Geoffrey Gaither,
Appellee-Petitioner Magistrate
Trial Court Cause No.
49D09-1405-JD-1289
Robb, Judge.
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Case Summary and Issues
[1] The juvenile court adjudicated O.L. a delinquent for committing child
molesting and criminal deviate conduct, both Class B felonies if committed by
an adult. O.L. appeals his adjudication, raising two issues for review: 1)
whether the State presented sufficient evidence to support the juvenile court’s
true finding of child molesting; and 2) whether the juvenile court erred in
admitting double hearsay testimony that was used to establish an element of
criminal deviate conduct. We conclude there is sufficient evidence to support
the delinquency adjudication for child molesting. As to criminal deviate
conduct, we do not examine O.L.’s double hearsay argument because we
conclude O.L.’s adjudication for criminal deviate conduct violates the Double
Jeopardy Clause of the Indiana Constitution. Accordingly, we affirm O.L.’s
adjudication as a delinquent for child molesting but reverse O.L.’s criminal
deviate conduct adjudication and remand to the juvenile court with instructions
to vacate the true finding of criminal deviate conduct.
Facts and Procedural History
[2] In May 2014, Gregory Webster and his wife, Michelle Dillow, had several
family friends over to their home in Indianapolis, including Angela Lewis and
her fifteen-year-old son, O.L. Webster’s and Dillow’s five year-old daughter,
C.W., was in her bedroom with the door closed. Webster and Dillow preferred
to keep the doors to their children’s rooms open. After noticing that C.W.’s
door was closed, Webster entered C.W.’s room. When Webster opened the
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door, he observed O.L. with his pants down and his penis in C.W.’s mouth.
Webster immediately began hitting O.L. and chased him from the bedroom.
Webster followed O.L. from the bedroom, told Dillow what he observed, and
told her to call the police. While Webster was chasing O.L. outside the home,
Dillow attempted to comfort C.W. and asked her what happened in the
bedroom. C.W. told Dillow that O.L. “had put his thing in her mouth and
daddy seen it,” transcript at 23, and threatened her not to tell anyone.
[3] An officer for the Indianapolis Metropolitan Police Department (“IMPD”)
located O.L. and transported him to the office of Detective Christopher
Lawrence, IMPD’s on-call child abuse detective, to be interviewed. O.L.
denied the allegations, but stated he had “learned his lesson.” Id. at 125.
Detective Lawrence arrested O.L. and applied for a search warrant to obtain
evidence from O.L.’s person and seize his clothing. A forensic examination
revealed C.W.’s DNA on the head of O.L.’s penis and on the red boxer shorts
seized from O.L.
[4] The State filed a delinquency petition against O.L. alleging he was a delinquent
child for having committed the following acts: child molesting and criminal
deviate conduct by using force or the imminent threat of force. The juvenile
court held a fact-finding hearing at which Webster and Dillow both testified,
and the State introduced into evidence the red boxer shorts and penile gland
swabs on which C.W.’s DNA was found. O.L. testified and denied the
allegations. O.L. offered the testimony of his mother, who stated that Webster
fabricated the story because she was going to tell his wife he was cheating on
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her. Lewis and O.L.’s father both testified that they had never seen the red
boxer shorts before. O.L. also offered the testimony of his brother, J.L., who
was playing in the backyard at the time of the incident; J.L. stated he could see
into C.W.’s bedroom window from the backyard and O.L. never had his pants
down. Finally, O.L. offered testimony from his friend, R.H., who played
basketball with O.L. earlier in the day and testified that O.L. was wearing white
undergarments. The juvenile court found O.L. to be delinquent for having
committed the acts alleged and placed him on probation. O.L. now appeals.
Discussion and Decision
I. Standard of Review
[5] A finding that a juvenile has committed a delinquent act must be based upon
proof beyond a reasonable doubt. Ind. Code § 31-37-14-1. When a juvenile
challenges the sufficiency of that proof, we neither reweigh the evidence nor
assess the credibility of the witnesses. D.H. v. State, 932 N.E.2d 236, 237-38
(Ind. Ct. App. 2010). We look to the evidence and reasonable inferences
supporting the judgment, and if there is evidence of probative value from which
a reasonable fact-finder could find the juvenile delinquent beyond a reasonable
doubt, we will affirm. Id. at 238.
II. Child Molesting
[6] O.L. was adjudicated a delinquent child for committing child molesting, a Class
B felony if committed by an adult. In order for O.L. to be adjudicated a
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delinquent child for committing child molesting, the State had to prove that
O.L. performed or submitted to deviate sexual conduct with a child under
fourteen years of age. Ind. Code § 35-42-4-3(a) (2007). At the fact-finding
hearing, in addition to the eyewitness testimony of Webster, the State
introduced into evidence the red boxer shorts and penile gland swabs taken
from O.L., both of which contained C.W.’s DNA.
[7] O.L. argues the evidence is insufficient to support his adjudication because the
testimony of “multiple witnesses, including Webster’s wife, . . . cast serious
doubt on Mr. Webster’s version of events.” Brief of Appellant/Defendant at 7.
Specifically, he points to his mother’s testimony that Webster fabricated his
version of events in response to her intention to tell Dillow that Webster was
cheating on her, his brother’s testimony that O.L. never had his pants down in
C.W.’s room, and his friend’s testimony that O.L. was wearing white
undergarments earlier in the day. The conflict between Webster’s and Dillow’s
testimony and that of O.L.’s mother, father, brother, and friend is a matter of
the credibility of those witnesses for the fact-finder to sort out. “[I]t is precisely
within the domain of the trier of fact to sift through conflicting accounts of
events. Not only must the fact-finder determine whom to believe, but also what
portions of conflicting testimony to believe.” Atwood v. State, 905 N.E.2d 479,
484 (Ind. Ct. App. 2009) (alteration in original) (quoting In re J.L.T., 712
N.E.2d 7, 11 (Ind. Ct. App. 1999)), trans. denied. Furthermore, this testimony
does not, as O.L. argues, refute or “cast serious doubt” on the fact that C.W.’s
DNA was discovered on the head of O.L.’s penis and on his red boxer shorts.
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[8] Based on our review of the evidence most favorable to the adjudication, we
conclude that sufficient evidence exists to support the juvenile court’s finding
that O.L. committed child molesting. C.W. was five years-old at the time of the
incident, Webster testified he witnessed O.L.’s penis in C.W.’s mouth, and a
forensic examination uncovered C.W.’s DNA on O.L.’s penis and red boxer
shorts. The State presented sufficient evidence to prove the act of child
molesting.
III. Criminal Deviate Conduct
[9] The second issue presented by O.L. is whether the juvenile court erred in
admitting “double hearsay” testimony. O.L. was adjudicated a delinquent
child for knowingly or intentionally causing another person to perform or
submit to deviate sexual conduct when the other person is compelled by force
or the imminent threat of force. Ind. Code § 35-42-4-2(a)(1) (1998). At the fact-
finding hearing, Detective Lawrence testified over O.L.’s objection that
“Michelle [Dillow] said [C.W.] told her that [O.L.] had pulled his pants down
and told her to put his private in her mouth. She also said that [O.L.] told her
that if she told, he would beat here [sic].” Tr. at 132. O.L. contends his
criminal deviate conduct adjudication requires a showing of force or threat of
force, and the only evidence produced by the State proving that element is the
double hearsay statement made by Detective Lawrence.
[10] Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted and is inadmissible unless it falls under a specific hearsay exception.
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Ind. Evidence Rule 801; see also Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct.
App. 2012). If the statement involves hearsay within hearsay, also known as
double hearsay, the statement may be admitted only if “each part of the
combined statements conforms with an exception to the rule.” Evid. R. 805; see
also Mayberry v. State, 670 N.E.2d 1262, 1267 (Ind. 1996) (“[E]ach level of
hearsay must qualify under an exception to the hearsay rule.”). However, we
need not examine each level of Detective Lawrence’s statement to determine if
its admission was error because the State concedes, and we agree, that O.L.’s
adjudication for criminal deviate conduct must be reversed because it violates
the Double Jeopardy Clause of the Indiana Constitution.
[11] Article 1, Section 14 of the Indiana Constitution provides in part, “No person
shall be put in jeopardy twice for the same offense.” In analyzing this principle,
our supreme court has explained:
[T]wo or more offenses are the “same offense” in violation of
Article [1], Section 14 of the Indiana Constitution, if, with respect
to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense.
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). Thus,
a double jeopardy violation exists if there is a reasonable probability that the
evidentiary facts used to establish the essential elements of one offense may also
have been used to establish the essential elements of a second challenged
offense. D.B. v. State, 842 N.E.2d 399, 404 (Ind. Ct. App. 2006).
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[12] In the petition filed in the juvenile court, the State alleged O.L. was a
delinquent child for committing child molesting, a Class B felony if committed
by an adult:
On or about the 22nd day of May, 2014, said child did perform or
submit to deviate sexual conduct, by placing his penis in the
mouth of [C.W.], a child who was then under the age of fourteen
(14) years, that is: 5 (five) years.
Appellant’s Appendix at 17. The petition also alleged O.L. was a delinquent
child for committing criminal deviate conduct, a Class B felony if committed by
an adult:
On or about the 22nd day of May, 2014, said child did knowingly
or intentionally cause [C.W.] to perform or submit to deviate
sexual conduct by placing his penis in the mouth of [C.W.] and
said [C.W.] was compelled to perform or submit to said conduct
by force or threat of force.
Id.[13] Here, O.L.’s act of placing his penis in C.W.’s mouth was an essential element
of both criminal deviate conduct and child molesting. Furthermore, Webster
only testified to witnessing a single instance of this act, and the State’s closing
argument addressed only one incident in support of the two allegations. Thus,
there is a “reasonable probability” the juvenile court used the same facts to
establish the essential elements of both child molesting and criminal deviate
conduct. See D.B., 842 N.E.2d at 404 (holding there was a reasonable
possibility the juvenile court used testimony of only one instance of
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nonconsensual sexual intercourse to establish the essential elements of both
rape and child molesting).
[14] A reviewing court may remedy a double jeopardy violation “by reducing either
conviction to a less serious form of the same offense if doing so will eliminate
the violation. If it will not, one of the convictions must be vacated.”
Richardson, 717 N.E.2d at 54 (citation omitted). The reviewing court will make
this determination itself, “being mindful of the penal consequences that the trial
court found appropriate.” Id. Neither child molesting nor criminal deviate
conduct can be reduced to a less serious offense than a Class B felony. As to
which finding should be vacated to remedy the violation, we note the juvenile
court ordered O.L. be placed on probation, rather than committing him to the
Department of Correction, which it could have done upon a proper finding that
O.L. had committed criminal deviate conduct. See Ind. Code § 31-37-19-9; see
also D.B., 842 N.E.2d at 404 (determining that because the juvenile court
committed the juvenile to DOC upon true findings of rape and child molesting,
vacating the true finding of child molesting would allow the juvenile court’s
disposition to stand).1 Further, the State agrees the criminal deviate conduct
1
In determining how to remedy the violation, we are also mindful of the evidentiary issue O.L. raised with
respect to the criminal deviate conduct adjudication.
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finding should be vacated. Therefore, to remedy the double jeopardy violation,
we reverse O.L’s adjudication for criminal deviate conduct.
Conclusion
[15] The State presented sufficient evidence to support the juvenile court’s
adjudication of O.L. as a delinquent child for committing child molesting.
However, O.L.’s adjudication as a delinquent child for criminal deviate conduct
violates the state constitutional prohibition against double jeopardy.
Accordingly, we affirm O.L.’s adjudication for child molesting, reverse his
adjudication for criminal deviate conduct, and remand to the juvenile court
with instructions to vacate the true finding of criminal deviate conduct.
[16] Affirmed in part, reversed and remanded in part.
Vaidik, C.J., and Pyle, J., concur.
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