MEMORANDUM DECISION                                                      FILED
                                                                    Mar 30 2016, 8:46 am
Pursuant to Ind. Appellate Rule 65(D),                                   CLERK
this Memorandum Decision shall not be                                Indiana Supreme Court
                                                                        Court of Appeals
regarded as precedent or cited before any                                 and Tax Court


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
Timothy J. Lemon                                        Gregory F. Zoeller
Knox, Indiana                                           Attorney General of Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Shidler,                                        March 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        75A05-1508-CR-1063
        v.                                              Appeal from the Starke Circuit
                                                        Court
State of Indiana,                                       The Honorable Kim Hall, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        75C01-1412-FC-27



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 75A05-1508-CR-1063| March 30, 2016         Page 1 of 7
                                         Statement of the Case
[1]   Appellant/Defendant, Jeffery Shidler (“Shidler”), appeals his conviction for

      Class C felony child molesting.1 He argues that there was insufficient evidence

      to support his conviction because there was no evidence that he touched the

      victim with the intent to arouse or satisfy his or her sexual desires. Because we

      find that there was sufficient evidence of Shidler’s intent, we affirm his

      conviction.


[2]   We affirm.


                                                       Issue
              Whether there was sufficient evidence to support Shidler’s
              conviction.

                                                       Facts
[3]   On June 10, 2014, Shidler, his adult son, Clinton, and his granddaughter drove

      from Mooresville to San Pierre on their way to the Mint Festival in North

      Judson. In San Pierre, they stayed with Shidler’s longtime friend, Warren

      Paulsen (“Paulsen”). An hour after they arrived, two of Paulsen’s niece’s

      daughters, nine-year-old Al.R. and eleven-year-old As.R., came over to spend




      1
       IND. CODE § 35-42-4-3(b). We note that this statute was amended effective July 1, 2014 and July 1, 2015,
      and Shidler’s offense would now be considered a Level 4 felony. However, because Shidler committed his
      offense in June 2014, we will apply the version of the statute in effect at that time.

      Court of Appeals of Indiana | Memorandum Decision 75A05-1508-CR-1063| March 30, 2016            Page 2 of 7
      the night at Paulsen’s house. Al.R. only spent time with Shidler approximately

      “once a year” and did not know him very well. (Tr. 56).


[4]   That night, Paulsen went to bed in his bedroom while the guests slept in the

      front room of his house. The next morning, everyone watched television for a

      while after waking up. Then, at one point, Paulsen went back to his room to

      make his bed and get his glasses. When he came back, Clinton was sitting on a

      little couch in the room, As.R. was sitting on the floor by Clinton, and Al.R.

      was lying “across [Shidler’s] lap” on a long couch. (Tr. 23). As Paulsen came

      into the room, he saw Shidler “massagin[g] [Al.R.’s] butt” with both of his

      hands. (Tr. 24). He said, “[w]hat the hell is going on over here?” (Tr. 24). In

      response, Shidler pulled his hands away from Al.R.’s butt and said, “I’m just

      massaging her butt.” (Tr. 24). Paulsen told Shidler that Al.R. did not need her

      butt massaged and that Shidler had to leave. Shidler left but took the two girls

      with him to drop them off at their grandmother’s house. Before he left, he said

      “I didn’t mean nothing by it.” (Tr. 24). Paulsen notified the girls’ mother

      about what had happened, and she contacted the police.


[5]   Subsequently, on December 29, 2014, the State charged Shidler with two

      counts of Class C felony child molesting.2 The trial court held a bench trial on

      the charges on May 7, 2015. At trial, Paulsen testified that he had seen Shidler

      massage Al.R.’s butt on the morning of June 11, 2014. However, he



      2
       The second count charged Shidler with allegedly molesting As.R. on occasions prior to June 2014. We
      have omitted facts supporting that count as it is not at issue on appeal.

      Court of Appeals of Indiana | Memorandum Decision 75A05-1508-CR-1063| March 30, 2016          Page 3 of 7
      acknowledged that he had not seen Shidler place his hands under Al.R.’s

      clothes or become sexually aroused.


[6]   Al.R., who was ten years old at the time of the trial, also testified. She said that

      on the morning of June 11, 2015, she had been sitting next to Shidler watching

      television when he scooted her over, touched her “booty,” and “grabbed [her]

      on the thigh” with both hands. (Tr. 66). Then he had “pulled [her] over on his

      lap and [] started touching [her] booty.” (Tr. 65). Al.R. said she had felt

      “[s]trange” and had tried to scoot over. (Tr. 69). When she did so, however, he

      had “grabbed” her thighs “harder,” and she had not been able to move away

      from him. (Tr. 69). She had asked Shidler to “stop,” but Paulsen had arrived

      in the room at the same time and had intervened. (Tr. 86).


[7]   At the conclusion of the trial, the trial court found Shidler guilty of one count of

      Class C felony child molesting based on his molestation of Al.R. It held a

      sentencing hearing on July 13, 2015, and sentenced Shidler to four (4) years in

      the Indiana Department of Correction. Shidler now appeals.


                                                  Decision
[8]   On appeal, Shidler argues that there was not sufficient evidence to convict him

      of child molesting because there was not any evidence that he touched Al.R.

      with the intent to arouse or satisfy his or her sexual desires. In support of this

      argument, he notes that his touching of Al.R. only lasted for four seconds and

      that she was clothed during that entire time.



      Court of Appeals of Indiana | Memorandum Decision 75A05-1508-CR-1063| March 30, 2016   Page 4 of 7
[9]    The standard of review for a sufficiency of the evidence claim is that this Court

       should only reverse a conviction when a reasonable person would not be able to

       form inferences as to each material element of the offense. Perez v. State, 872

       N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh

       evidence or judge the credibility of witnesses. Id. at 213. In addition, we only

       consider the evidence most favorable to the verdict and the reasonable

       inferences stemming from that evidence. Id.


[10]   In order to convict Shidler of Class C child molesting, the State had to prove

       beyond a reasonable doubt that he, with a child under fourteen (14) years of

       age, “perform[ed] or submit[ted] to any fondling or touching” of either himself

       or the child, “with intent to arouse or to satisfy the sexual desires of either the

       child or [himself].” I.C. § 35-42-4-3(b). Mere touching alone is not sufficient to

       constitute the crime of child molesting. Rodriguez v. State, 868 N.E.2d 551, 554

       (Ind. Ct. App. 2007). “‘The intent to arouse or satisfy the sexual desires of the

       child or the older person may be established by circumstantial evidence and

       may be inferred from the actor’s conduct and the natural and usual sequence to

       which the conduct usually points.’” Id. at 553-54 (quoting Kanady v. State, 810

       N.E.2d 1068, 1069-70 (Ind. Ct. App. 2004)) (internal quotation omitted).


[11]   Shidler argues that there was no evidence of his intent because he only touched

       Al.R. for four seconds and because she was clothed the entire time. We

       disagree. Our standard is not to evaluate the duration of an improper touching

       but to assess “the actor’s conduct and the natural and usual sequence to which

       the conduct usually points.” See id. Based on this standard, we have also found

       Court of Appeals of Indiana | Memorandum Decision 75A05-1508-CR-1063| March 30, 2016   Page 5 of 7
       an intent to arouse or satisfy sexual desire where a victim is clothed. See Chavez

       v. State, 988 N.E.2d 1226, 1230 (Ind. Ct. App. 2013) (affirming child molesting

       conviction where the defendant, while kissing the victim, placed his hand on

       the victim’s vagina, over her clothes), trans. denied.


[12]   When we assess the natural and usual sequence to which conduct such as

       Shidler’s usually points, we conclude that there was sufficient evidence of his

       intent. In an analogous case, Altes v. State, 822 N.E.2d 1116, 1121-22 (Ind. Ct.

       App. 2005), trans. denied, we found sufficient evidence of intent where the

       defendant touched the victim’s feet, legs, and bottom. We reasoned that

       touching a victim’s bottom was “close enough to the female genitals as to

       constitute the source of sexual gratification.” Id.


[13]   Here, Shidler grabbed Al.R.’s thigh, pulled her onto his lap, and began

       “rubbing” her “booty.” (Tr. 65, 69). Al.R. felt “strange” and tried to get away,

       but Shidler would not let her move. (Tr. 69). When Paulsen saw Shidler’s

       conduct, he immediately thought the touching was inappropriate, and Shidler

       admitted that he was massaging Al.R.’s butt. In light of these facts, we

       conclude that there was sufficient evidence for the trial court to conclude that

       Shidler had the intent to arouse or satisfy his sexual desires or Al.R.’s and,

       therefore, committed child molesting.3




       3
        The remainder of Shidler’s arguments concern the credibility of witnesses and weight of the evidence,
       which we will not consider on appeal. See Perez, 872 N.E.2d at 213.

       Court of Appeals of Indiana | Memorandum Decision 75A05-1508-CR-1063| March 30, 2016             Page 6 of 7
Affirmed.


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




Court of Appeals of Indiana | Memorandum Decision 75A05-1508-CR-1063| March 30, 2016   Page 7 of 7
