Timothy Reno v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Mar 15 2016, 9:23 am
this 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
Christopher J. Hammerle Gregory F. Zoeller
Jacob, Hammerle & Johnson Attorney General of Indiana
Zionsville, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Reno, March 15, 2016
Appellant-Defendant, Court of Appeals Case No.
06A01-1507-CR-879
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Matthew C.
Appellee-Plaintiff. Kincaid, Judge
Trial Court Cause No.
06D01-1308-FA-306
Pyle, Judge.
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Statement of the Case
[1] Timothy Reno (“Reno”) appeals his conviction for Class C felony child
molesting.1 He argues that there is insufficient evidence to support his
conviction because the State failed to prove: (1) that the conduct occurred
during the time period alleged in the charging information; (2) Reno’s identity
as the perpetrator of the crime; and (3) Reno’s intent to arouse or satisfy his
sexual desires or those of the victim. Finding sufficient evidence of time,
identity, and intent, we affirm Reno’s conviction.
Issue
Whether there is sufficient evidence to support Reno’s conviction
for Class C felony child molesting.
Facts
[2] The facts most favorable to the conviction reveal that E.S. was born in May,
2001. In 2009 and 2010, E.S.’s grandparents lived in an apartment in
Zionsville, where E.S. frequently spent the night. During that same time period,
fifty-three-year-old Reno often worked with E.S.’s grandparents and spent the
night at their apartment as well. One night at this apartment during 2009 or
2010 when E.S. was eight or nine years old, Reno and E.S. slept in the same
bed. When they awoke the following morning, Reno touched E.S.’s penis both
1
IND. CODE § 35-42-4-3. We note that effective July 1, 2015, this statute was amended and Reno’s offense
would now be considered a level 3 felony. However, we will apply the version of the statute in effect at the
time of the offense.
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over and under E.S.’s clothing. At Reno’s request, E.S. also touched Reno’s
penis. The touching stopped when E.S.’s grandparents woke up.
[3] E.S. did not tell anyone what had happened until 2012, when he told his
mother and a counselor. Zionsville Police Department Officer Brad Kiefer
interviewed Reno, who admitted that he had been in bed with E.S. at the
grandparents’ apartment. According to Reno, E.S. was sick, and Reno got in
bed with E.S. to rub his stomach. When the officer asked Reno if he had
touched E.S. inappropriately, Reno responded that he “didn’t know, he might
have. Big hands, small stomach.” (Tr. 206).
[4] In an amended information filed in February 2015, the State charged Reno with
Class C felony child molesting. The information alleged that “[b]etween
October 1, 2009, and September 30, 2010, Timothy Reno did perform or submit
to fondling or touching with [E.S.], a child under the age of fourteen years, with
intent to arouse or satisfy the sexual desires of the child or defendant . . . .”
(App. 271).
[5] At trial, the State presented evidence of the above facts. Also at trial, the parties
stipulated that E.S.’s grandparents lived in a specific Zionsville apartment from
October 9, 2009, through September 30, 2010. In addition, E.S.’s father
identified Reno in court as “Tim Reno,” (Tr. 152), a friend of E.S.’s
grandparents who often stayed at their Zionsville apartment. According to
E.S.’s father, he had known Reno for several years, and E.S. called Reno
“Uncle Timmy.” (Tr. 152). E.S.’s mother also identified Reno in court as
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“Tim Reno,” and testified that she had known him for nineteen years. (Tr.
188). Reno testified that he often stayed at E.S.’s grandparents’ apartment in
Zionsville and that E.S. called him “Uncle Timmy.” (Tr. 237). E.S. testified
that “Tim” touched his penis on top of and under his pants while they were
sharing the same bed at his grandparents’ apartment in Zionsville. (Tr. 161).
He further testified that he had never had a stomachache while staying at that
apartment.
[6] The jury convicted Reno of Class C felony child molesting, and the trial court
sentenced him to four (4) years executed at the Department of Correction.
Reno appeals.
Decision
[7] Reno contends that there is insufficient evidence to support his conviction.
Specifically, he argues that the State failed to prove he committed the act as
charged, “both as to the timing during which the act was alleged to have
occurred, and by failing to have the victim identify Reno during trial.” (Reno’s
Br. 4). Reno also argues that the “State failed to establish beyond a reasonable
doubt that any touching of E.S. by Reno was done with the intent to arouse.”
(Reno’s Br. 7). We address each of his contentions in turn.
[8] Our standard of review for sufficiency of the evidence is well-settled. When
reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh the evidence nor judge witness credibility.
Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). We consider only the evidence
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supporting the judgment and any reasonable inferences that can be drawn from
such evidence. Id. We will affirm a conviction if there is substantial evidence
of probative value such that a reasonable trier of fact could have concluded the
defendant was guilty beyond a reasonable doubt. Id.
[9] Reno first argues that the State failed to prove that the prohibited conduct
occurred between October 1, 2009, and September 30, 2010, as alleged in the
amended charging information. However, our review of the evidence reveals
that the parties stipulated that E.S.’s grandparents lived in an apartment in
Zionsville from October 9, 2009 until September 30, 2010. The testimony also
reveals that Reno touched E.S.’s penis while sleeping in the same bed with E.S.
in this particular apartment. Thus, the State proved that the prohibited conduct
occurred during the time period alleged in the amended charging information.
[10] We further note that even if the State had not proved that the conduct occurred
during the time period alleged in the charging information, there would still be
sufficient evidence to support Reno’s conviction. The State need only allege the
time of the offense as definitely as can be done if time is of the essence of the
offense. See I.C. § 35–34–1–2(a)(6). It is well-established that where time is not
of the essence of the offense, the State is not confined to proving the
commission on the date alleged in the charging information but may prove the
commission at any time within the statutory period of limitations. Love v. State,
761 N.E.2d 806, 809 (Ind. 2002). Time is not of the essence in child molesting
cases. Id. In such cases, the exact date is only important in limited
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circumstances, such as where the victim’s age at the time of the offense falls at
or near the dividing line between classes of felonies. Id.
[11] Here, E.S. was eight or nine years old at the time of the offense. Because E.S.’s
age did not fall at or near the fourteen-year-old dividing line for child molesting
offenses, time was not of the essence in this case. See I.C. § 35-42-4-3. Because
time is not of the essence, the State needed only to prove that the offense
occurred during the statutory period of limitations. See Love, 761 N.E.2d at 809.
The statutory period of limitations for a Class C felony is five years. See I.C. §
35-41-4-2. The State is correct that E.S.’s testimony was sufficient to establish
that the crime occurred during the statute of limitations and that this is
sufficient evidence to support his conviction.
[12] Reno next argues that there is insufficient evidence to support his conviction
because the State failed “to connect the allegations made by E.S. to the actual
Defendant, Reno.” (Reno’s Br. 5). According to Reno, “[w]hen the victim is
not asked to identify the defendant at trial, or even linkup the identity during
the course of the victim’s testimony, such testimony cannot be sufficient to
support a conviction.” (Reno’s Br. 7).
[13] However, it is well-established that circumstantial evidence alone may be
sufficient to sustain a conviction. Harbert v. State, No. 06A01-1507-CR-879,
2016 WL 430518, at *5 (Ind. Ct. App. Feb. 4, 2016). When evidence of
identity is not entirely conclusive, the weight to be given to the identification
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evidence is left to the determination of the jury, as determining identity is a
question of fact. Id.
[14] Here, our review of the evidence reveals that E.S.’s father identified Reno in
court as “Tim Reno,” a friend of E.S.’s grandparents. (Tr. 152). According to
E.S.’s father, E.S. called Reno “Uncle Timmy.” (Tr. 152). E.S.’s mother also
identified Reno in court as “Tim Reno.” (Tr. 188). Reno testified that he often
stayed at E.S.’s grandparents’ apartment in Zionsville and that E.S. called him
“Uncle Timmy.” (Tr. 237). E.S. testified that “Tim” touched his penis on top
of and under his pants while they were sharing the same bed at his
grandparents’ apartment in Zionsville. (Tr. 161). This evidence is sufficient to
sustain Reno’s conviction.
[15] Lastly, Reno argues that there is insufficient evidence to support his conviction
because the State failed to prove his intent to arouse his sexual desires or the
sexual desires of E.S. INDIANA CODE § 35-43-4-3(b) provides as follows:
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 Class C felony.
The intent element of child molesting may be established by circumstantial
evidence and inferred from the actor’s conduct and the natural and usual
sequence to which such conduct usually points. Wise v. State, 763 N.E.2d 472,
475 (Ind. Ct. App. 2002), trans. denied. The intent to arouse or satisfy sexual
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desires may be inferred from evidence that the accused intentionally touched a
child’s genitals. Id.
[16] Here, Reno intentionally touched E.S.’s penis both over and under his pants
when E.S. was nine or ten years old. This evidence is sufficient to prove that
Reno intended to arouse or satisfy the sexual desires of either E.S. or Reno.
[17] Affirmed.
Baker, J., and Bradford, J., concur.
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