T.N.S. 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 establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SEAN P. HILGENDORF GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
FILED
Indianapolis, Indiana
Mar 19 2012, 9:28 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
T.N.S., )
)
Appellant- Respondent, )
)
vs. ) No. 46A03-1105-JV-263
)
STATE OF INDIANA, )
)
Appellee- Petitioner, )
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Nancy L. Gettinger, Magistrate
Cause No. 46C01-1011-JD-673
March 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
T.N.S. was adjudicated a delinquent for committing what would be sexual battery
if committed by an adult. On appeal, T.N.S. raises two issues: (1) whether the State
failed to provide sufficient evidence that T.N.S. committed the elements of sexual battery
and (2) whether the trial court erred in considering evidence of prior bad acts in violation
of Indiana Rule of Evidence 404(b). Concluding that the evidence is sufficient and the
trial court did not improperly consider prior bad acts as character evidence, we affirm.
Facts and Procedural History
In October 2010, assistant principal Andrew Merritt received information from the
Director of Transportation about a complaint of harassment which allegedly occurred on
the school bus. The source of the complaint is unknown but the complaint alleged that
male student T.N.S. inappropriately touched a female student on three separate occasions.
In response to these allegations, Merritt conducted an investigation and interviewed seven
different students; among those students were T.N.S. and alleged victim B.L. B.L.
provided a written statement alleging that T.N.S. had, on three separate occasions,
touched both her and another female on the chest, butt, and thigh, while riding home on
the school bus and that he had held their hands down while committing these acts.
During the investigation, Merritt informed T.N.S. of the allegations that had been made
against him, and T.N.S. admitted to touching a girl “inappropriately,” but did not give
any specifics as to when, how, why, or what the touching was. Transcript at 82.
On December 8, 2010, T.N.S. was alleged to be a delinquent child for committing
three acts that would have been sexual battery, Class D felonies, if he were an adult.
Following a fact-finding hearing in March 2011, the trial court found Counts II and III to
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be true and dismissed Count I. In May 2011, the trial court placed T.N.S. on official
probation, and ordered him to write a letter of apology to B.L. and complete a Family
Focus counseling class.
T.N.S. now appeals his adjudications of delinquency.
Discussion and Decision
I. Sufficiency of Evidence
A. Standard of Review
On reviewing a challenge to the sufficiency of evidence supporting a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State,
907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the
judgment and any reasonable inferences that can be drawn from such evidence.” Id.Thus, we will affirm the 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. “It is therefore not necessary that the evidence overcome every
reasonable hypothesis of innocence.” Ball v. State, 945 N.E.2d 252, 255 (Ind. Ct. App.
2011) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)), trans. denied.
B. Evidence of Intent to Satisfy Own Sexual Desire
Indiana Code section 35-42-4-8, defining the charge of sexual battery, provides:
(a) A person who, with intent to arouse or satisfy the person’s own sexual
desires or the sexual desires of another person, touches another person
when that person is:
(1) compelled to submit to the touching by force or the imminent threat of
force…
commits sexual battery, a Class D felony.
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T.N.S. first argues the State failed to prove beyond a reasonable doubt the
requirement that he had the “intent to arouse or satisfy [his] own sexual desires” when he
touched B.L. Although we cannot ascertain T.N.S.’s exact intent in touching B.L. absent
an admission, see Germaine v. State, 718 N.E.2d 1125, 1132 (Ind. Ct. App. 1999), trans.
denied, there is no other rational explanation for touching her in the locations, manner,
and frequency with which he did unless to sexually gratify himself.
In ascertaining T.N.S.’s intent, we defer to our previous reasoning in a similar case
in which a male high school student was making sexual comments to and touching
female students in class. We reasoned that “[a] person’s intent may be determined from
[his] conduct and the natural consequences thereof and intent may be inferred from
circumstantial evidence. Furthermore, the intent to gratify required by the statute must
coincide with the conduct; it is the purpose or motivation for the conduct.” J.J.M. v.
State, 779 N.E.2d 602, 606 (Ind. Ct. App. 2002) (citation omitted), abrogated on other
grounds by R.J.G. v. State, 902 N.E.2d 804 (Ind. 2009). As such, the sexual manner in
which T.N.S. touched B.L. on three separate occasions clearly establishes his
“motivation” of “satisfying his own sexual desires.”
T.N.S. further argues the State failed to prove that B.L. was “compelled to submit
to the touching by force or the imminent threat of force” and thus the touching by T.N.S.
rises merely to the level of battery. In regards to the force required for a charge of sexual
battery, our supreme court has previously stated that the “force need not be physical or
violent, but may be implied from the circumstances.” Scott-Gordon v. State, 579 N.E.2d
602, 604 (Ind. 1991). A mere unwanted touching “does not, in itself, support the
conclusion that the defendant compelled the victim to submit to the touching by force or
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threat of force.” Bailey v. State, 764 N.E.2d 728, 730 (Ind. Ct. App. 2002), trans. denied.
However, in perceiving the touching, “it is the victim’s perspective, not the assailant’s,
from which the presence or absence of forceful compulsion is to be determined.” Tobias
v. State, 666 N.E.2d 68, 72 (Ind. 1996). T.N.S. argues that because B.L. did not report
the incidents and no other students came to B.L.’s aid, she could not have reasonably
perceived T.N.S.’s conduct as a threat upon her.
Although those around B.L. at the time of the incident, as well as T.N.S., may not
have perceived the touching as compelling B.L. by force or the threat of imminent force,
the threat of force or lack thereof is ultimately determined through the eyes of the victim.
While B.L. may have initially “thought it was a joke and [T.N.S.] was not gonna do it
again,” tr. at 57, B.L. subsequently objected to T.N.S.’s fondling the second and third
time and asked him to stop, establishing her objections to T.N.S.’s behavior. Likewise,
B.L. testified that on the third occasion of T.N.S.’s inappropriate touching he “[held] her
hands down,” id. at 32, demonstrating the use of force upon her and her reasonable
perception of being compelled to submit to the touching by force or the threat of
imminent force. Thus, the State has sufficiently proven that B.L. perceived T.N.S.’s
touching as forceful and in furtherance of his intent to arouse or satisfy his own sexual
desires.
II. Admission of 404(b) Evidence
A. Standard of Review
A “trial court has inherent discretionary power on the admission of evidence, and
its decisions are reviewed only for abuse of that discretion.” Vasquez v. State, 868
N.E.2d 473, 476 (Ind. 2007) (quoting Jones v. State, 780 N.E.2d 373, 376 (Ind. 2002)).
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An abuse of discretion occurs “where the decision is clearly against the logic and effects
of the facts and circumstances.” Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App.
2012) (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)).
B. Evidence of Prior Bad Acts
It is well-settled in Indiana that admission of evidence of former crimes or
wrongful acts will be highly scrutinized to prevent the fact-finder from making the
forbidden inference that other wrongful conduct suggests present guilt. Barker v. State,
695 N.E.2d 925, 930 (Ind. 1998). Evidence presented merely to demonstrate the
character of a defendant violates the policy of not biasing the fact-finder by presenting
evidence of all of the defendant’s prior wrongdoings. In line with this policy, Indiana
Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial, or during
trial if the court excuses pre-trial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.
The State questioned assistant principal Merritt regarding the existence of any
prior incidents of sexual conduct at school by T.N.S. and argued that this evidence would
be used to “show a pattern” of behavior. The court permitted the questions over the
defense’s objection. Tr. at 84. T.N.S.’s concern with the admission of evidence of his
prior sexually-related behavior is that its probative value was substantially outweighed by
its prejudicial value and thus this evidence was improperly considered by the trial court
as evidence of T.N.S.’s character. Our supreme court has previously stated that in
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assessing admissibility of Rule 404(b) evidence a trial court must “(1) determine that the
evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the
defendant’s propensity to commit the charged act and (2) balance the probative value of
the evidence against its prejudicial effect pursuant to Rule 403.” Ortiz v. State, 716
N.E.2d 345, 350 (Ind. 1999).
T.N.S. first argues the trial court abused its discretion when it admitted, over
objection, testimony regarding T.N.S.’s prior bad acts when the State failed to provide
T.N.S. with notice of its intent to use the testimony. However, as Rule 404(b) provides,
the trial court can waive the requirement of pre-trial notice during the actual trial on good
cause shown. This is precisely what the trial court did when it permitted testimony by
assistant principal Merritt regarding prior incidents of sexual misconduct by T.N.S.
T.N.S. concedes in his appellate brief that while the trial court allowed the State’s
question of whether Merritt knew of prior incidents of sexual misconduct by T.N.S. to
demonstrate a pattern of behavior, once he answered “yes,” the “trial court prohibited any
further questioning.” Appellant’s Br. at 12.
T.N.S. argues that the trial court was already “aware of inadmissible and
prejudicial information” when it prohibited the State from asking any further questions.
Id. The trial court appropriately terminated the line of questioning before it rose to the
level of prejudice. We agree with T.N.S.’s argument that had further questioning
regarding his past conduct been permitted, it could have been unduly prejudicial.
However, the trial court proceeding was not a jury trial, and a trial court is presumed to
know and correctly apply the law. Donaldson v. State, 904 N.E.2d 294, 300 (Ind. Ct.
App. 2009). Moreover, the trial court’s findings of fact did not include any reference to
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the prior incidents and thus the testimony did not play any appreciable role, if at all, in
the trial court’s delinquency determination. See Evid. R. 103(a) (“Error may not be
predicated upon a ruling which admits or excludes evidence unless a substantial right of
the party is affected…”); Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995) (“an error
will be found harmless if its probable impact . . ., in light of all of the evidence in the
case, is sufficiently minor”).
The evidence of T.N.S.’s prior unrelated conduct was presented to establish his
pattern of inappropriate touching and also to establish the element of the intent to arouse
his own sexual desires as required under Indiana Code section 35-42-4-8. The trial court
did not abuse its discretion in allowing evidence of T.N.S.’s prior unrelated conduct.
Conclusion
The State presented sufficient evidence of T.N.S.’s intent to satisfy his own sexual
desires and use of force as required under Indiana Code section 35-42-4-8, and the trial
court did not abuse its discretion in admitting evidence of T.N.S.’s prior unrelated
conduct. T.N.S.’s delinquency adjudications are affirmed.
Affirmed.
NAJAM, J., and VAIDIK, J., concur.
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