MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any
                                                                  Jun 24 2020, 8:28 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kelly M. Starling                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Matthew B. MacKenzie
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ja’Juan Hudson,                                          June 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2673
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara C. Crawford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1806-F3-18447



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020              Page 1 of 10
                                          Case Summary
[1]   Ja’Juan Hudson (“Hudson”) appeals his conviction of Child Molesting, as a

      Level 3 felony.1 We affirm.



                                                    Issues
[2]   Hudson presents two issues for review:


                 I.       Whether the trial court abused its discretion by admitting
                          into evidence Hudson’s statement to police; and


                 II.      Whether the State failed to present evidence that Hudson
                          was an adult when he committed the charged offense.


                                   Facts and Procedural History
[3]   Hudson was born on July 31, 1998. On June 8, 2018, the State charged

      Hudson with three counts of Child Molesting, alleging that he had fondled and

      engaged in other sexual conduct with his younger half-sibling, N.C. A jury

      acquitted Hudson of two counts but was unable to reach a verdict as to Count

      1. The State decided to retry Hudson on Count 1, which alleged:


                 On or about or between August 8, 2016 and August 7, 2017,
                 Ja’Juan Hudson did knowingly or intentionally perform or




      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020    Page 2 of 10
               submit to other sexual conduct as defined in [I.C.] 35-31.5-2-
               221.5 with [N.C.], a child under the age of fourteen years.2


      (App. Vol. II, pg. 23.)


[4]   In anticipation of a jury trial, the trial court held a hearing on April 5, 2019, to

      consider the admissibility of Hudson’s police statement, wherein he admitted

      that he had, at the age of fourteen, anally penetrated N.C. Hudson contended

      that the statement concerned a prior bad act that was inadmissible under

      Indiana Trial Rule 404(b). The State argued that the act to which Hudson had

      admitted was not extrinsic to the charged offense, in that he had essentially

      confessed but altered the date of occurrence. Persuaded that Hudson’s

      statement was “more of an admission than a separate incident,” the trial court

      ruled that the statement “should come in front of the jury” and was “not 404(b)

      [evidence] at all.” (Tr. Vol. II, Pgs. 10-11.)


[5]   On August 8, 2019, Hudson appeared at a hearing and waived his right to a

      jury trial. At the bench trial conducted on September 13, 2019, N.C. testified

      that she, her younger sibling, and Hudson were alone at their father’s house;

      N.C. awakened from sleep in pain; and she discovered Hudson engaging her in

      anal intercourse. Hudson testified and repudiated his police statement as a

      fabrication made to pacify the interviewing officer. Hudson was convicted as




      2
        Indiana Code Section 35-31.5-2-221.5 defines “other sexual conduct” as “an act involving: (1) a sex organ
      of one (1) 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.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020                     Page 3 of 10
      charged and, on October 18, 2019, was sentenced to six years imprisonment,

      with three years suspended. He was ordered to serve one year of probation

      with standard sex offender conditions. Hudson now appeals.



                                 Discussion and Decision
                                 Trial Rule 404(b) Evidence
[6]   The admission or exclusion of evidence is entrusted to the sound discretion of

      the trial court. Thayer v. State, 144 N.E.3d 843, 847 (Ind. Ct. App. 2020). We

      will reverse a trial court’s decision only for an abuse of discretion. Id.


[7]   Hudson argues that his police statement was inadmissible under Indiana

      Evidence Rule 404(b), which provides in relevant part:


              Crimes, Wrongs, or Other Acts.


              (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
              not admissible to prove a person’s character in order to show that
              on a particular occasion the person acted in accordance with the
              character.


              (2) Permitted Uses; Notice in a Criminal Case. This evidence
              may be admissible for another purpose, such as proving motive,
              opportunity, intent, preparation, plan, knowledge, identity,
              absence of mistake, or lack of accident.


[8]   Evidence Rule 404(b) is designed to prevent the jury from making the

      “forbidden inference” that prior wrongful conduct suggests present guilt.

      Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (citing Byers v. State, 709

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020   Page 4 of 10
      N.E.2d 1024, 1026-27 (Ind. 1999)). See also Bassett v. State, 795 N.E.2d 1050,

      1053 (Ind. 2003) (recognizing that the purpose behind Evidence Rule 404(b) is

      to “prevent[ ] the State from punishing people for their character, and evidence

      of extrinsic offenses poses the danger that the jury will convict the defendant

      because ... he has a tendency to commit other crimes.”) (internal quotation

      omitted). In assessing the admissibility of evidence under Evidence Rule

      404(b), the trial court must first determine that the evidence of other crimes,

      wrongs, or acts is relevant to a matter at issue other than the defendant’s

      propensity to commit the charged act, and then balance the probative value of

      the evidence against its prejudicial effect pursuant to Evidence Rule 403.

      Halliburton, 1 N.E.3d at 681-82 (citing Wilson v. State, 765 N.E.2d 1265, 1270

      (Ind. 2002)). The effect of Rule 404(b) is that evidence is excluded only when it

      is introduced to prove the forbidden inference of demonstrating the defendant’s

      propensity to commit the charged crime. Rogers v. State, 897 N.E.2d 955, 960

      (Ind. Ct. App. 2008), trans. denied.


[9]   Here, the victim participated in a good touch/bad touch program at her

      elementary school and disclosed that Hudson had anally penetrated her on a

      single occasion. She did not provide a specific date. During the State’s

      investigation, Hudson gave a police statement and admitted that he had anally

      penetrated N.C. on one occasion. He added that he had been fourteen years of

      age. Hudson’s admission did not confirm the investigative theory that Hudson

      had been several years older, but this did not render the act under discussion

      extrinsic to the charged offense. Moreover, the concern that a jury might draw


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020   Page 5 of 10
       a forbidden inference as to Hudson’s character is not present here, because this

       was a bench trial.3 Hudson has demonstrated no abuse of the trial court’s

       discretion in the admission of evidence.


                                                 Hudson’s Age
[10]   Hudson contends that insufficient evidence supports his conviction. When

       reviewing a claim that the evidence is insufficient to support a conviction, we

       neither reweigh the evidence nor judge the credibility of the witnesses; instead,

       we respect the exclusive province of the trier of fact to weigh any conflicting

       evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only

       the probative evidence supporting the judgment and any reasonable inferences

       which may be drawn from this evidence, we will affirm if the probative

       evidence and reasonable inferences drawn from the evidence could have

       allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt. Id.


[11]   Hudson was convicted pursuant to Indiana Code Section 35-42-4-3(a), which

       provides in relevant part:




       3
         Hudson claims that the trial court, in deciding admissibility, relied upon a fact not in evidence. Specifically,
       Hudson had described the setting when he anally penetrated N.C. and stated that his youngest sibling was
       asleep in the same bed with N.C. At the pretrial hearing, the trial court stated that the youngest sibling had
       not been born when Hudson was fourteen, and she found this supportive of the State’s argument that Hudson
       had given false information about his age. However, when arguments as to admissibility were offered at trial,
       it was clarified that the youngest sibling had been born when Hudson was fourteen. The trial court
       acknowledged the clarification. Thus, the decision to admit the statement was not based upon a
       misapprehension of fact.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020                        Page 6 of 10
               A person who, with a child under fourteen (14) years of age,
               knowingly or intentionally performs or submits to sexual
               intercourse or other sexual conduct (as defined in IC 35-31.5-2-
               221.5) commits child molesting, a Level 3 felony.


       Although he articulates an issue of insufficient evidence, Hudson does not

       challenge the sufficiency of the evidence supporting any of the foregoing

       elements. Rather, he contends that the State-having alleged that Hudson

       committed sexual conduct against N.C. between August 8, 2016 and August 7,

       2017, when Hudson was eighteen or nineteen-failed to prove the conduct

       occurred within that timeframe.


[12]   Indiana Code Section 35-34-1-2 governs the specificity of an indictment or

       information. Of relevance here is the following language:


               The indictment or information shall be in writing and allege the
               commission of an offense by: . . .


               (5) stating the date of the offense with sufficient particularity to
               show that the offense was committed within the period of
               limitations applicable to that offense;


               (6) stating the time of the offense as definitely as can be done if
               time is of the essence of the offense[.]


[13]   Hudson acknowledges that, generally, it is well settled that “time is not of the

       essence in the crime of child molesting.” Barger v. State, 587 N.E.2d 1304, 1307

       (Ind. 1992). As explained in Barger:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020   Page 7 of 10
               It is difficult for children to remember specific dates, particularly
               when the incident is not immediately reported as is often the
               situation in child molesting cases. The exact date becomes
               important only in limited circumstances, including the case
               where the victim’s age at the time of the offense falls at or near
               the dividing line between classes of felonies.


       Id. According to Hudson, time was “of the essence” here because he had

       turned eighteen only eight days before the earliest date contained within the

       Information. Appellant’s Brief at 17. He suggests that N.C.’s testimony could

       have referred to an event at least nine days earlier, although he denied that any

       such event took place. Hudson did not present an alibi defense; rather, his

       defense was that he never at any time committed the charged act.


[14]   Hudson implies that the criminal court lacked jurisdiction over him.

       Nonetheless, he has pursued no jurisdictional challenge and he did not move to

       dismiss the Information. He simply argues that the State should have offered

       definitive proof that sexual conduct took place when he was over the age of

       eighteen.


[15]   The State responds that both N.C. and her mother testified that N.C. had been

       seven, which, based upon the respective birth dates, would mean that Hudson

       had turned eighteen. Our review of the record does not indicate that the

       testimony of N.C. and her mother was so clear-cut. N.C. testified that she and

       her younger sibling were visiting their father, but he and his girlfriend left,

       leaving Hudson in the house. N.C., who had been in bed with her younger

       sibling, awakened to find Hudson molesting her. N.C. stated that she

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020   Page 8 of 10
       “believed” she was seven and she acknowledged that “more than a year after it

       happened,” her school conducted the program that ultimately prompted the

       April 2018 investigation. (Tr. Vol. II, pgs. 47, 51.) N.C.’s mother testified that

       “her understanding” of N.C.’s age was that she had been “about seven.” Id. at

       64.


[16]   That said, Hudson’s own testimony supports an inference that he was eighteen

       at the time he gained unsupervised access to N.C. In his police statement,

       Hudson described an incident of sexual conduct that took place at his father’s

       house when N.C. and their youngest sibling were asleep in bed together. At

       trial, Hudson testified that he and his father were estranged, and he seldom

       visited his father. He stated that, “once in 2017,” he “spent the night” at his

       father’s house. Id. at 104. Hudson was eighteen during all of 2017. Assuming

       that “time was of the essence” in these circumstances, and the State was

       required to allege a time with particularity, it did so. And, having made a

       particular allegation, the State did not fail to satisfy its burden of proof to

       establish the allegation.



                                               Conclusion
[17]   Hudson has not demonstrated an abuse of the trial court’s discretion in the

       admission of evidence. The State did not fail to present sufficient evidence to

       support the conviction.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020   Page 9 of 10
[18]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020   Page 10 of 10
