Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                      FILED
any court except for the purpose of                      Feb 25 2013, 9:40 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                          CLERK
                                                              of the supreme court,
case.                                                         court of appeals and
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER                               GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                MICHELLE BUMGARNER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JUAN BEAMON,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 49A02-1207-CR-571
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Stanley E. Kroh, Judge Pro Tempore
                            Cause No. 49G03-1110-FB-76850



                                     February 25, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Juan Beamon appeals his conviction for sexual misconduct with a minor as a class

B felony. Beamon raises one issue which we revise and restate as whether the evidence

is sufficient to sustain his conviction. We reverse and remand.

                         FACTS & PROCEDURAL HISTORY

       The facts most favorable to the conviction follow. On October 12, 2011, Beamon

and his cousin J.W., the mother of fifteen-year-old K.P., went to a bar to celebrate J.W.’s

fortieth birthday. K.P. and her sister C.W. remained in J.W.’s apartment. K.P. went to

sleep clothed, but took her clothes off at one point because she became hot. At some

point, J.W. and Beamon returned to the apartment, and J.W. fell asleep on the couch.

       K.P. awoke because she was being touched and saw Beamon crouched over the

top of her. K.P. said, “Dude, what the F are you doing? I’m not my mother.” Transcript

at 35. Beamon did not respond verbally, but left the room. K.P. put her “clothes back on

and wrapped up and turned and faced the wall.” Id. at 36. K.P. did not tell anyone at that

point because she was scared. K.P. fell back to sleep.

       K.P. awoke again and discovered that her shorts and underwear were at her knees

and Beamon was touching her vagina area. K.P. lay on her back and Beamon “had his

hand in [her] vagina area.” Id. at 37. K.P. said, “Dude, what are you doing?” Id. at 38.

Beamon then stood up, shook his head, and walked out of K.P.’s room. K.P. did not

leave her room because she was scared, but she called her mother and tried to listen to see

if she heard her mother’s phone, but she did not hear it. K.P. then called C.W. and stated:

“Can you come and get me?” Id. at 40. K.P. told her sister that Beamon “was touching

[her] ‘coota mama,’” which was a term K.P. used for vagina. Id. at 41.

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       C.W. called some other family members who came over to the apartment.

Rheagan Gilmore, a relative of K.P., came over and asked where Beamon was located,

and her son told her that Beamon was in the back room. Gilmore went into the back

room, found Beamon shirtless on the floor, struck Beamon with a “little bat,” and told

him to “get up and get the f--- out.” Id. at 185, 187. Beamon then exited the apartment.

K.P. then told Gilmore what happened, and Gilmore called the police.

       On October 31, 2011, the State charged Beamon with Count I, sexual misconduct

with a minor as a class B felony; and Count II, sexual misconduct with a minor as a class

C felony. The State also alleged that Beamon was an habitual offender. At the trial, K.P.

and others testified to the foregoing facts. Dr. Roberta Hibbard, a pediatrician and

professor of pediatrics and the physician that examined K.P., testified with respect to a

diagram of the female sexual organ. Specifically, Dr. Hibbard testified:

              So one of the things that’s important and I think helps people in
       understanding the female genital tract is that many physicians and most lay
       people refer to all of this area as the vagina, and it’s not all the vagina. The
       vagina is really just this tube. But all of these structures are part of the
       genitals.

                                          *****

               So this diagram helps you understand that there are many structures
       in the female genital tract and that there’s actually a lot of penetration of the
       genitals going up inside the labia and the clitoris to get to even touch the
       urethra or the vaginal opening.

             This helps people understand I think that women, every time they
       wipe after they go to the bathroom, are penetrating their genitals and it
       doesn’t necessarily leave any marks or cause any injury. But we’re not
       necessarily penetrating the vagina.

Id. at 127-128.

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      The jury found Beamon guilty as charged. The court found that Beamon was an

habitual offender. The court vacated the judgment of conviction on Count II due to

double jeopardy concerns. The court sentenced Beamon to sixteen years for sexual

misconduct with a minor as a class B felony and enhanced the sentence by ten years due

to his status as an habitual offender for an aggregate sentence of twenty-six years. The

court suspended three years of the sentence.

                          ISSUE / STANDARD OF REVIEW

      The issue is whether the evidence is sufficient to sustain Beamon’s conviction for

sexual misconduct with a minor as a class B felony.          When reviewing claims of

insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of

witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we

look to the evidence and the reasonable inferences therefrom that support the verdict. Id.

We will affirm the conviction if there exists evidence of probative value from which a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id.

The uncorroborated testimony of one witness, even if it is the victim, is sufficient to

sustain a conviction.    Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).

However, “[a] conviction cannot be based on speculation.” Gross v. State, 817 N.E.2d

306, 311 (Ind. Ct. App. 2004).

                                      ANALYSIS

      The offense of sexual misconduct with a minor is governed by Ind. Code § 35-42-

4-9, which provides that “[a] person at least eighteen (18) years of age who, with a child

at least fourteen (14) years of age but less than sixteen (16) years of age, performs or

                                               4
submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with

a minor” and that “the offense is . . . a Class B felony if it is committed by a person at

least twenty-one (21) years of age . . . .” At the time of the offense, deviate sexual

conduct was defined as “an act involving: (1) 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 § 35-41-1-9 (2004) (Repealed by Pub. L. No. 114-2012, §§ 87-102

(eff. July 1, 2012)). Whether penetration occurred is a question of fact to be determined

by the jury. Borkholder v. State, 544 N.E.2d 571, 577 (Ind. Ct. App. 1989). Proof of the

slightest penetration is sufficient to sustain a conviction. Scott v. State, 771 N.E.2d 718,

723 (citing Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996)), disapproved of on other

grounds by Louallen v. State, 778 N.E.2d 794 (Ind. 2002).

       The State alleged that Beamon “being at least twenty-one (21) years of age, did

perform or submit to deviate sexual conduct by inserting an object, that is: finger(s), into

the sex organ of K.P., a child who was at least fourteen (14) years of age, but under the

age of sixteen (16).” Appellant’s Appendix at 27. Thus, to convict Beamon of sexual

misconduct with a minor as a class B felony, the State needed to prove that Beamon, a

person at least twenty-one years old, with K.P., a child at least fourteen years old but less

than sixteen years old, inserted his finger into K.P.’s sex organ.

       We also observe that Count II, sexual misconduct with a minor as a class C felony,

of which the jury found Beamon guilty, is governed by Ind. Code § 35-42-4-9(b), which

provides that “[a] person at least eighteen (18) years of age who, with a child at least

fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to

                                              5
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 sexual

misconduct with a minor, a Class D felony.” “However, the offense is . . . a Class C

felony if it is committed by a person at least twenty-one (21) years of age . . . .” Ind.

Code § 35-42-4-9.

       Beamon appears to argue only that the State failed to prove that he penetrated

K.P.’s sex organ. He asserts that “the evidence is merely that a hand went in the vagina

area” and that “[t]here is no testimony that there was penetration by a finger as alleged, or

by a hand, or by any other object.” Appellant’s Brief at 9. Beamon argues that “[i]f the

hand went into the vagina or into any part of the sex organ, the State could easily have

elicited testimony to make this distinction in examining” K.P., and that “the testimony, as

given, only states that the hand was in the area of the vagina.” Id. Beamon also contends

that the “doctor’s very graphic description and visual documentation of the female sex

organ provided no assistance in determining whether or not there was the requisite

penetration.”   Id. at 8.   Beamon requests that we vacate the conviction for sexual

misconduct with a minor as a class B felony and enter judgment as a class C felony. The

State argues the jury reasonably inferred that Beamon had penetrated K.P.’s sex organ

based upon the testimony of K.P. and the attending physician.

       The record reveals that K.P., who was fifteen years old at the time of the offense

and sixteen years old at the time of trial, testified that Beamon “had his hand in [her]

vagina area.” Transcript at 37 (emphasis added). The prosecutor also used the phrase



                                             6
“vagina area” during the direct examination of K.P. where the following exchange

occurred:

       Q      . . . And you said his hand was in your vagina area?

       A      Yes.

       Q      Okay. Did his hand touch your vagina area?

       A      Yes.

       Q      Okay. Did it ever go in your vagina area?

       A      Yes.

       Q      How did that feel?

       A      Not right.

Id. at 38.

       While the record reveals evidence of probative value from which a reasonable trier

of fact could find that Beamon committed sexual misconduct as a class C felony, the

State failed to present evidence of probative value from which the jury could have found

beyond a reasonable doubt that Beamon penetrated K.P.’s sex organ. Accordingly, we

reverse Beamon’s conviction for sexual misconduct with a minor as a class B felony and

remand to the trial court to enter judgment on Count II, sexual misconduct with a minor

as a class C felony. See Johnson v. State, 960 N.E.2d 844, 848 (Ind. Ct. App. 2012) (“If

[the defendant] used only his hand to touch the child’s vagina, it would not qualify as

deviate sexual conduct. See Ind. Code § 35-41-1-9. Rather, according to Indiana Code

section 35-42-4-3(b), child molesting is a Class C felony, and not a Class A felony, if the

defendant with a child under fourteen years of age ‘performs or submits to any fondling

                                            7
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.’”) (emphasis added); see also

Garland v. State, 719 N.E.2d 1236, 1242 (Ind. 1999) (reversing a conviction for murder

based upon insufficient evidence, observing that the jury had also found the defendant

guilty of assisting a criminal, and remanding to the trial court to enter judgment and

sentence on assisting a criminal, which the trial court had not previously entered

judgment based upon double jeopardy grounds), reh’g denied.

       For the foregoing reasons, we reverse Beamon’s conviction for sexual misconduct

with a minor as a class B felony and remand for proceedings consistent with this opinion.

       Reversed and remanded.

BAILEY, J., and VAIDIK, J., concur.




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