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
                                                            Apr 30 2014, 6:51 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARK S. LENYO                                    GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 CHANDRA K. HEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ALAN RAMSEY,                                     )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A03-1308-CR-341
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                            The Honorable Jerome Frese, Judge
                              Cause No. 71D03-1212-FA-32


                                       April 30, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION

SHEPARD, Senior Judge
       Alan Ramsey coerced his young niece to put her hand on his penis and to put her

mouth on his penis. A jury convicted him of class C felony child molesting and class A

felony child molesting. He appeals only the C felony conviction. We affirm.

                          FACTS AND PROCEDURAL HISTORY

       Ramsey frequently babysat his six-year-old niece, A.W. One day, Ramsey turned

off the television show A.W. was watching and had her come with him to his room. He

said they were going to play a game. Ramsey closed the door and took off his pants. He

told her to hold his penis, and she did. Next, he told her to put her mouth on his penis.

When she declined, he repeated his demand, and she complied.

       The State charged Ramsey with A felony and C felony child molesting. Ind. Code

§ 35-42-4-3 (2007). A jury determined that he was guilty as charged, and the trial court

sentenced him accordingly. This appeal followed.

                                             ISSUES

       Ramsey raises two issues:

       I.      Whether there is sufficient evidence to sustain his C felony conviction.

       II.     Whether Ramsey’s conviction for C felony child molesting violates the
               Indiana Constitution’s Double Jeopardy Clause.1




1
 Ramsey cites the Fifth Amendment in passing, but his analysis focuses upon Indiana’s Double Jeopardy
Clause. We thus do not address the Fifth Amendment.
                                                 2
                             DISCUSSION AND DECISION

                         I. SUFFICIENCY OF THE EVIDENCE

       In reviewing the sufficiency of the evidence, we examine only the probative

evidence and reasonable inferences that support the verdict. Lock v. State, 971 N.E.2d

71, 74 (Ind. 2012). We do not assess witness credibility, nor do we reweigh the evidence

to determine if it was sufficient to support a conviction. Id. We affirm the conviction

unless no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt. Id.

       To obtain a conviction of child molesting as a class C felony, the State must prove

beyond a reasonable doubt that the defendant (1) with a child under fourteen years of age

(2) performed or submitted to any fondling or touching (3) of either the child or the older

person (4) with intent to arouse or to satisfy the sexual desires of either the child or the

older person. Ind. Code § 35-42-4-3(b).

       Ramsey says A.W. did not touch him other than to place her mouth on his penis,

which was the subject of the A felony charge.

       The evidence shows otherwise. Ramsey’s recorded interview with the police was

played for the jury. During the interview, Ramsey told an officer that he directed A.W. to

hold his penis and subsequently demanded that she put her mouth on it, and that she had

done both. State’s Ex. 3 at 10:51:03-10:55:58. Ramsey’s citation to A.W.’s testimony

that she did not touch his penis with her hand merely establishes an evidentiary dispute,

which was for the finder of fact to resolve.

                                               3
                                II. DOUBLE JEOPARDY

       Article 1, section 14 of the Indiana Constitution provides in part, “No person shall

be put in jeopardy twice for the same offense.” Two or more offenses are the “same

offense” for purposes of the Indiana Double Jeopardy Clause 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. Sloan v. State, 947 N.E.2d 917, 924 (Ind. 2011).

       Ramsey argues that his C felony conviction violates the actual evidence portion of

the test.   Dual convictions cannot stand if a defendant demonstrates a reasonable

possibility that the evidentiary facts used by the jury to establish elements of one offense

may also have been used to establish the essential elements of a second challenged

offense. Id. As Justice David wrote for the Court in Sloan, “Application of the actual-

evidence test requires a reviewing court to look at the evidence presented at trial and

decide whether each challenged offense was established by separate, distinct facts.” Id.

       As we noted above, the State presented evidence describing two closely-related

but separate actions: A.W.’s holding of Ramsey’s penis upon his request and her

subsequently placing her mouth on it at Ramsey’s insistence. As the Sloan Court noted,

where there is “independent and distinct” evidence of two criminal acts of molestation,

the fact that they occurred together does not demonstrate a double jeopardy violation. Id.



                                             4
       That it did not lead to a violation in this case is buttressed by the prosecutor’s

approach at trial. During opening and closing arguments the prosecutor described for the

jury the evidence that supported each charge. See Tr. p. 190 (“I think that the defendant’s

own statement, his own words are sufficient to allow you to be convinced beyond a

reasonable doubt that the fondling occurred.”). As the Supreme Court did in Sloan, we

conclude that Ramsey has failed to establish a reasonable possibility that the jury based

both of his convictions on the same facts. On the other hand, we also think the trial judge

was wise to impose concurrent sentences.

                                     CONCLUSION

       We affirm the judgment of the trial court.

       Affirmed.

MATHIAS, J., and BROWN, J., concur.




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