William Hodapp, Jr. v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
Jul 29 2014, 8:05 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BROOKE N. RUSSELL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM HODAPP, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 07A01-1307-CR-342
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Judith A. Stewart, Judge
Cause No. 07C01-1103-FB-78
July 29, 2014
MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION
MATHIAS, Judge
William Hodapp, Jr. (“Hodapp”) has filed a Petition for Rehearing of our
memorandum decision affirming his convictions for three counts of Class B felony incest,
one count of Class C felony incest, one count of Class D felony possession of child
pornography, and one count of Class A misdemeanor battery. In his Petition, Hodapp
correctly observes that we did not specifically address his claim that the evidence was
insufficient to support his conviction for Count I, Class B felony incest. Accordingly, we
grant Hodapp’s Petition to address this issue, but affirm Hodapp’s convictions.
Hodapp claims that the evidence was insufficient to support his conviction for
Count I, Class B felony incest, which alleged that Hodapp engaged in deviate sexual
conduct with the victim in this case, C.H., by placing his fingers in C.H.’s vagina.
“Deviate sexual conduct” is defined by statute as “an act involving: (l) A sex organ of
one person and the mouth or anus of another person; or (2) The penetration of the sex
organ or anus of a person by an object.” Ind. Code § 35-31.5-2-94. A finger may be
considered an object under the statute. Simmons v. State, 746 N.E.2d 81, 86 (Ind. Ct.
App. 2001).
Thus, evidence that Hodapp penetrated C.H.’s vagina with his fingers is sufficient
to support a conviction for incest by means of deviate sexual conduct. See id. This
Hodapp does not dispute. Instead, he claims that the State failed to prove that he engaged
in sexual deviate conduct with C.H. when she was under the age of sixteen, which is an
element of incest as a Class B felony. See Ind. Code § 35-46-1-3(a). We disagree.
As noted by the State, there was evidence that Hodapp committed numerous acts
of deviate sexual conduct during the period when C.H. was still under the age of sixteen.
2
Specifically, she testified that, beginning in the winter of 2008, when she was still
fourteen years old,1 Hodapp began to make her manipulate his penis and “touch her.” Tr.
pp. 238-39. C.H. also testified that the sexual touching went on for “months” and
occurred as often as every two weeks. Id. at 239. And she explained that Hodapp placed
his fingers in her vagina “multiple times.” Id. at 258. From this, the jury could
reasonably conclude that Hodapp placed his fingers in C.H.’s vagina when she was still
under the age of sixteen.
Hodapp also claims that the evidence was insufficient to establish that the deviate
sexual conduct occurred in Brown County. Although the right to be tried in the county in
which an offense was committed is a constitutional and a statutory right, venue is not an
element of the offense. Smith v. State, 809 N.E.2d 938, 942 (Ind. Ct. App. 2004), trans.
denied. “Accordingly, although the State is required to prove venue, it may be
established by a preponderance of the evidence and need not be proven beyond a
reasonable doubt.” Id. But a defendant waives an alleged error relating to venue when
he fails to make an objection before the trial court. Id. Here, Hodapp does not refer us to
any portion of the record wherein he objected at trial on the basis of venue. Accordingly,
this issue was waived. 2 See id.
1
C.H. turned sixteen years old in March 2010.
2
Waiver notwithstanding, C.H. testified that the sexual intercourse occurred in Brown County and that
Hodapp used a sex toy on her in the living room of his home, which was in Brown County. Thus, the jury
could reasonably find by a preponderance of the evidence that the sexual deviate conduct also occurred in
Brown County.
3
Thus, the State presented evidence sufficient to support Hodapp’s conviction for
Count I, Class B felony incest based on his acts of deviate sexual conduct with C.H., and
we affirm his conviction on this count.
FRIEDLANDER, J., and PYLE, J., concur.
4