MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                        Sep 18 2018, 5:42 am

regarded as precedent or cited before any                                           CLERK
                                                                              Indiana Supreme Court
court except for the purpose of establishing                                     Court of Appeals
                                                                                   and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         Curtis T. Hill, Jr.
Voyles Vaiana Lukemeyer                                  Attorney General of Indiana
Baldwin & Webb
Indianapolis, Indiana                                    Andrew Kobe
                                                         Section Chief, Criminal Appeals
Victoria L. Bailey
Marion County Public Defender Agency                     Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

K.M.,                                                    September 18, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-JV-643
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Gary Chavers,
Appellee-Petitioner.                                     Judge Pro Tem
                                                         The Honorable Geoffrey Gaither,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1707-JD-1011



Barteau, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018                     Page 1 of 6
                                             Statement of the Case
[1]   K.M. appeals his adjudication as a juvenile delinquent based upon a true

      finding for the offense of child molesting, a Level 4 felony if committed by an
                1
      adult. We affirm.


                                                     Issue
[2]   K.M. presents one issue for our review, which we restate as: whether there was

      sufficient evidence to support the juvenile court’s true finding for child

      molesting.


                                   Facts and Procedural History
[3]   In July 2017, Tytiaira Word returned home from work to find Z.W., her five-

      year-old son, in a chair with his legs in the air and with K.M., her husband’s

      thirteen-year-old son, on top of him and in between Z.W.’s legs. K.M. was

      holding Z.W. by the hips and performing a thrusting motion like “dry-

      humping.” Tr. Vol. II, p. 11. Both boys had on basketball shorts but no shirts.

      When Word asked the boys what they were doing, they jumped up. At that

      point, Word could see that K.M.’s penis was erect. When questioned, Z.W.

      cried and told his mother that he and K.M. were “doing nasty stuff.” Id. at 15.


[4]   Based upon this incident, the State filed a delinquency petition alleging that

      K.M. had committed two acts of child molesting as Level 3 felonies and two



      1
          Ind. Code § 35-42-4-3(b) (2015).


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018   Page 2 of 6
      acts of child molesting as Level 4 felonies. Following a fact-finding hearing, the

      court entered not true findings on all counts except one Level 4 offense and

      placed K.M. on probation.


                                   Discussion and Decision
[5]   K.M. contends the State failed to prove all the necessary elements of the offense

      of child molesting to support the court’s true finding. When the State seeks to

      have a juvenile adjudicated a delinquent for committing an act that would be a

      crime if committed by an adult, the State must prove every element of the

      offense beyond a reasonable doubt. C.L. v. State, 2 N.E.3d 798, 800 (Ind. Ct.

      App. 2014); see also Ind. Code § 31-37-14-1 (1997) (“A finding by a juvenile

      court that a child committed a delinquent act . . . must be based upon proof

      beyond a reasonable doubt.”).


[6]   When reviewing on appeal the sufficiency of the evidence supporting a juvenile

      adjudication, we neither reweigh the evidence nor judge the credibility of the

      witnesses. Z.A. v. State, 13 N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider

      only the evidence most favorable to the judgment and the reasonable inferences

      therefrom, and we will affirm if the evidence and those inferences constitute

      substantial evidence of probative value to support the judgment. C.L., 2 N.E.3d

      at 800.


[7]   In order to make a true finding of delinquency against K.M. for child molesting,

      the State must have proved beyond a reasonable doubt that K.M. (1) with

      Z.W., a child under fourteen years of age, (2) performed or submitted to

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018   Page 3 of 6
      fondling or touching of either the child or the older person, (3) with the intent to

      arouse or to satisfy the sexual desires of either the child or the older person. See

      Ind. Code § 35-42-4-3(b). It seems that K.M. challenges the State’s evidence as

      to both the second and third elements.


[8]   First, K.M. argues that the evidence is insufficient to establish that he

      performed or submitted to fondling or touching with Z.W. Initially we note

      that with regard to this particular element of the offense of child molesting, the

      plain language of Indiana Code section 35-42-4-3(b) requires simply a

      “touching” or “fondling.”


[9]   At the hearing, Word testified that she saw Z.W. in a chair with his legs in the

      air and that K.M. was on top of Z.W. and in between Z.W.’s legs. Word

      further testified that K.M. was holding Z.W. by the hips and performing a

      thrusting motion like “dry-humping” and that K.M. had an erection. Tr. Vol.

      II, p. 11. Although extremely reluctant to testify, Z.W., who was just six years

      old at the time of the hearing, nevertheless eventually testified that he was

      sitting in a chair and that K.M. got on top of him with K.M.’s body touching

      his body. In addition, Z.W. responded affirmatively when asked if any part of

      K.M.’s body was touching his “butt” when K.M. was on top of him. Id. at 50.

      Z.W. also later testified that K.M.’s body part was touching his “booty.” Id. at

      52. This evidence is sufficient to show that K.M. touched Z.W. See, e.g., Bass v.

      State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011) (stating that Indiana Code

      section 35-42-4-3(b) does not require touching of a child’s breasts or genitals but

      rather requires merely touching with intent to arouse or satisfy sexual desires

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018   Page 4 of 6
       and finding sufficient evidence to sustain child molesting conviction where

       defendant rubbed victim’s back and sides), trans. denied.


[10]   Second, K.M. asserts the evidence is insufficient to establish that the touching

       or fondling was committed with the intent to arouse or satisfy his or Z.W.’s

       sexual desires. Although Indiana Code section 35-42-4-3(b) requires a

       touching, mere touching alone is not sufficient to constitute the crime of child

       molesting. Davis v. State, 956 N.E.2d 726, 730 (Ind. Ct. App. 2011), trans.

       denied. The State must also prove beyond a reasonable doubt that the

       defendant’s act of touching was accompanied by the specific intent to arouse or

       satisfy sexual desires. Id. The intent element may be established by

       circumstantial evidence and may be inferred from the actor’s conduct and the

       natural and usual sequence to which such conduct usually points. Id.


[11]   Z.W. testified that he was in a chair, that K.M. got on top of him, and that

       K.M.’s body part was touching his butt or booty. Word provided more details,

       testifying that K.M. was in between Z.W.’s legs and was thrusting or humping

       while holding onto Z.W.’s hips. Word also testified that K.M. had an erection.

       One may reasonably infer from this evidence that K.M. acted with the intent to

       arouse or satisfy his sexual desires and that he did in fact become aroused. This

       evidence is sufficient to support the intent element of child molesting.


[12]   K.M.’s argument that the evidence fails to support the adjudication because

       Z.W. did not define the term “booty” or specify K.M.’s body part and did not

       testify to K.M.’s erection is merely an invitation to reweigh the evidence and


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018   Page 5 of 6
       judge witness credibility, which we will not do. See Z.A., 13 N.E.3d at 439.

       Word clearly and unequivocally explained what she saw when she arrived

       home from work. Although corroborated by Z.W.’s testimony, Word’s

       testimony alone is sufficient to support the adjudication of delinquency in this

       case. See T.G. v. State, 3 N.E.3d 19, 23 (Ind. Ct. App. 2014) (uncorroborated

       testimony of a single witness may suffice to sustain delinquency adjudication),

       trans. denied.


[13]   Moreover, K.M. attempts to dismiss Word’s testimony as motivated by

       jealousy about the relationship between K.M.’s mother and Word’s husband,

       who is K.M.’s father. The trial court was informed about the animosity that

       exists between Word and K.M.’s mother, and the court heard and saw Word

       and K.M.’s mother testify. This is yet another invitation to judge the credibility

       of the witnesses, and we cannot accept. See Z.A., 13 N.E.3d at 439.


                                                Conclusion
[14]   For the foregoing reasons, we conclude the State presented sufficient evidence

       beyond a reasonable doubt to establish that K.M. committed an act that, if he

       were an adult, would constitute child molesting, a Level 4 felony.


[15]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-643 | September 18, 2018   Page 6 of 6
