MEMORANDUM DECISION
                                                                    Jul 09 2015, 5:29 am
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
Dawnya G. Taylor                                          Gregory F. Zoeller
Evansville, Indiana                                       Attorney General of Indiana

                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jerry W. Thomas,                                          July 9, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          82A04-1410-CR-477
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court
                                                          Cause No. 82C01-1210-FA-1299
State of Indiana,                                         The Honorable David D. Kiely,
Appellee-Plaintiff                                        Judge




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1410-CR-477 | July 9, 2015         Page 1 of 7
                                             Case Summary
[1]   Jerry W. Thomas (“Thomas”) appeals his conviction for Child Molesting, as a

      Class A felony. 1 We affirm.



                                                       Issues
[2]   Thomas presents two issues for review:

               I.       Whether the trial court abused its discretion by admitting into
                        evidence Thomas’s confession absent independent evidence of
                        the corpus delicti; and
               II.      Whether sufficient evidence supports the conviction.


                              Facts and Procedural History
[3]   In October of 2012, seven-year-old J.B. and eight-year-old S.B. lived with their

      father (“Father”). Father worked with Thomas and on occasion invited him to

      the family residence for a visit. During one of Thomas’s visits, S.B. walked into

      J.B.’s bedroom and saw that Thomas had his hand inside J.B.’s pajama pants.

      S.B. reported this event to Father.


[4]   Father contacted police, and Thomas was interviewed. He admitted that he

      had touched J.B. four times, once accidentally, by massaging her clitoris. (Tr.

      149.) Thomas was charged with three counts of Child Molesting and one count




      1
        Ind. Code § 35-42-4-3(a)(3). The offense of Child Molesting is now a Level 1, 2, 3, or 4 felony. We refer to
      the version of the statute in effect at the time of Thomas’s crime.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1410-CR-477 | July 9, 2015                 Page 2 of 7
      of Obstruction of Justice. The latter charge was dismissed and Thomas was

      brought to trial before a jury on the Child Molesting charges. The jury

      convicted him of one charge and acquitted him of two others. He was

      sentenced to twenty-eight years imprisonment. This appeal ensued.



                                 Discussion and Decision
                                              Corpus Delicti
[5]   Thomas contends that his confession should not have been admitted because

      the State failed to present independent evidence of the corpus delicti, or body of

      a crime. More specifically, Thomas argues the crime charged was vaginal

      penetration and the State presented only independent proof of penetration of

      external genitalia.


[6]   In order for an extra-judicial confession to be admissible, the State must

      establish the corpus delicti; that is, there must be some independent evidence

      tending to prove that the crime charged has been committed by someone. Green

      v. State, 304 N.E.2d 845, 849-51 (Ind. 1974). The purpose for requiring proof of

      the corpus delicti is to prevent the admission of a defendant’s confession to a

      crime that never occurred. Hurt v. State, 570 N.E.2d 16, 19 (Ind. 1991). The

      State is not required to prove the corpus delicti beyond a reasonable doubt, but

      must present independent evidence from which an inference may be drawn that

      a crime was committed. Douglas v. State, 481 N.E.2d 107, 110 (Ind. 1985). The

      corpus delicti need not be established prior to admission of the confession so


      Court of Appeals of Indiana | Memorandum Decision 82A04-1410-CR-477 | July 9, 2015   Page 3 of 7
      long as the totality of independent evidence presented at trial establishes it.

      Morgan v. State, 544 N.E.2d 143, 146 (Ind. 1989).


[7]   Apart from Thomas’s statement to police, the State presented S.B.’s testimony

      that she had seen Thomas “molesting” J.B. by “having his hands on her private

      part,” J.B.’s testimony that Thomas had touched her “where pee comes out,”

      and Nurse Jessica Hahn’s testimony that the female urethra is located inside the

      labia minora. This testimony establishes that a crime of penetration of a child’s

      sex organ occurred. See e.g., Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App.

      1991) (observing that proof of the slightest penetration is sufficient to establish

      penetration and holding that penetration of external genitalia, or vulva, is

      sufficient to support an unlawful sexual intercourse conviction).


[8]   However, Thomas claims the testimonial evidence is insufficient to establish the

      corpus delicti of the charged crime because the charging information alleges

      that he “plac[ed] his finger into the vagina of the victim[.]” (App. 6.) He

      observes that J.B. denied that Thomas had placed his fingers “inside” her body.

      (Tr. 14.) Thomas asserts that the term “vagina” as used in the information

      means the vaginal vault, and claims that the “State’s own exhibit makes clear

      the vagina is itself internal to the female body.” (Appellant’s Br. At 7.) 2




      2
       State’s Exhibit 3, a diagram to which Thomas refers, labels the internal genitalia as “vaginal orifice.”
      Thomas does not acknowledge the definition of “vagina” provided by Nurse Jessica Hahn, including both
      external and internal genitalia.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1410-CR-477 | July 9, 2015               Page 4 of 7
[9]    In drafting the charging information, the prosecutor alleged that Thomas had

       violated Indiana Code Section 35-42-4-3(a)(1), by committing deviate sexual

       conduct against J.B. At that time, Indiana Code Section 35-31.5-2-94 defined

       deviate sexual conduct to include: “an act involving … [t]he penetration of the

       sex organ or anus of a person by an object.” The charging information used the

       term “vagina” as opposed to the statutory phrase “sex organ.” However, the

       jury was instructed consistent with the statutory definition, and Thomas lodged

       no objection in this regard.


[10]   To the extent that Thomas now complains that the State’s evidence did not

       mirror the charging information, he has made no claim of a fatal variance

       between the charging information and the proof adduced at trial. To the extent

       that Thomas suggests the State must establish each element of the charged

       crime in precise conformity with the charging information as a predicate to

       admission of a confession, he is incorrect. See Hurt, 570 N.E.2d at 20, observing

       that “each element of a crime need not be proved beyond a reasonable doubt

       before a confession is admissible.”


[11]   In Hurt, the Court clarified that, where a victim had testified to an attack and

       there was evidence that she had been stabbed and stripped of her clothing, there

       was sufficient evidence to satisfy a corpus delicti requirement that a crime had

       been committed, “even though there was no direct evidence that the specific

       crime of rape had, in fact, occurred.” Id. Accordingly, the Court concluded

       that the admission of the defendant’s statements was not in error. Id. Here, we

       are likewise confident that the State presented sufficient evidence to satisfy the

       Court of Appeals of Indiana | Memorandum Decision 82A04-1410-CR-477 | July 9, 2015   Page 5 of 7
       corpus delicti requirement that a crime against J.B. had been committed,

       notwithstanding the charging information’s reference to “vagina” as opposed to

       “sex organ.”


                                     Sufficiency of the Evidence
[12]   Thomas contends that there is insufficient evidence to support his conviction for

       Child Molesting. More specifically, he denies that there is evidence that he

       penetrated J.B.’s vagina.


[13]   When reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Henley v.

       State, 881 N.E.2d 639, 652 (Ind. 2008). We consider only the evidence

       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence. Id. We will affirm 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.


[14]   The State alleged that Thomas performed deviate sexual conduct “by placing

       his finger into the vagina of the victim[.]” (App. 6.) Deviate sexual conduct

       was then defined by Indiana Code Section 35-31.5-2-94 to include “an act

       involving … [t]he penetration of the sex organ or anus of a person by an

       object.” The statute defining deviate sexual conduct included no requirement

       that the vagina be penetrated, only that a sex organ of a person be penetrated.

       Notwithstanding the undefined reference to vagina in the charging information,

       the jury was instructed using the statutory definition of deviate sexual conduct.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1410-CR-477 | July 9, 2015   Page 6 of 7
[15]   J.B. testified that Thomas had placed his hand underneath her clothes, on her

       “cat” or “private part,” more specifically, where “the pee comes out.” (Tr. 12,

       16.) Thomas admitted that he had “massaged [J.B.]’s clit.” (Tr. 149.) Nurse

       Jessica Hahn testified that “the major parts of the vagina” include “the mons

       pubis at the top,” labia majora, labia minora, vaginal opening, urethra, and

       clitoris. (Tr. 126.) She further explained that the urethra and clitoris are inside

       the labia minora. From this evidence, the jury could conclude beyond a

       reasonable doubt that Thomas committed deviate sexual conduct against J.B.



                                               Conclusion
[16]   Thomas’s confession was not admitted in the absence of independent evidence

       of a corpus delicti. There is sufficient evidence to support Thomas’s conviction

       of Child Molesting.


[17]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1410-CR-477 | July 9, 2015   Page 7 of 7
