MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Mar 15 2016, 9:48 am
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
Brooke N. Russell                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Prosecuting Attorney
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

B.N.,                                                    March 15, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A02-1507-JV-771
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marilyn A.
Appellee-Petitioner.                                     Moores, Judge

                                                         The Honorable Geoffrey Gaither,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1411-JD-2791



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1507-JV-771 | March 15, 2016         Page 1 of 6
                                       Statement of the Case
[1]   B.N. appeals his adjudication as a delinquent for child molestation, as a Level 4

      felony when committed by an adult. B.N. raises a single issue for our review,

      which we restate as whether the State presented sufficient evidence to support

      B.N.’s adjudication as a delinquent. We affirm.


                                 Facts and Procedural History
[2]   From approximately May 11, 2011, to September 23, 2014, S.P. babysat J.N.

      on the weekends. J.N. was six- and seven-years old during that period of time.

      S.P.’s teenaged son, B.N., lived with her. The house was small, consisting of

      two bedrooms, a living room, and a kitchen. While either S.P. or J.R.—

      another adult living in the home—were in the house the majority of the time,

      there were times when S.P. or J.R. were not in the household when J.N. and

      B.N. were there.


[3]   At various times, B.N. made J.N. “suck [B.N.’s] private parts,” and B.N. put

      “his private parts in [J.N.’s] butt,” which J.N. refers to as “humping.” Tr. at

      10. J.N. stated these events took place in both B.N.’s bedroom and a shed on

      the property, and these acts occurred almost every time J.N. was at S.P.’s

      house. At one point, Ju.R., another child living in the home and J.N.’s friend,

      saw B.N. and J.N. go into the shed together.


[4]   All those events made J.N. feel “[u]ncomfortable.” Id. B.N. told J.N. not to

      tell anyone of those events, and J.N. did not reveal the acts to an adult for some



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      time because he felt “scared” and “thought [B.N.] really might mean it” in

      terms of carrying out the threats against J.N. Tr. at 15.


[5]   On September 23, 2014, after Jessica Madeiros, an Abuse Program

      Specialist/Child Forensic Interviewer for the Indianapolis Metropolitan Police

      Department, presented a Body Safety Program at J.N.’s school, J.N. indicated

      that he wanted to talk to Madeiros. The following day, J.N. told Madeiros

      that, on the previous Friday, B.N. had “put his penis inside of J.N.’s butt” and

      that that had happened multiple times in B.N’s bedroom or the shed. Tr. at 5.

      J.N. then told his adoptive mother and his biological mother, whom he knew as

      his sister, that B.N. “would hit [J.N.] in the face if [J.N.] wouldn’t give [B.N.]

      oral sex,” and B.N. “would put his fingers and crayons up [J.N.’s] butt.” Tr. at

      35. J.N. told his biological aunt, whom he also knew as his sister, that B.N.

      had been “touching [J.N.] in [an] inappropriate way, taking him to the shed

      and touching him.” Tr. at 45-456. However, during the fact-finding hearing,

      J.N. denied that B.N. had hit him and stated that, if he had told anyone

      otherwise, it was incorrect.


[6]   On November 19, 2014, the State alleged that B.N. was a delinquent for

      committing the following: Count 1, child molesting, as a Class B felony when

      committed by an adult; Count 2, child molesting, as a Class C felony when

      committed by an adult; Count 3, child molesting, as a Level 3 felony when

      committed by an adult; and Count 4, child molesting, as a level 4 felony when

      committed by an adult. On April 24, 2015, after a fact-finding hearing, the

      juvenile court found B.N. to not be a delinquent on Counts 1-3, but the court

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      adjudicated him to be a delinquent on Count 4. On June 12, 2015, the juvenile

      court sentenced B.N. to formal probation. This appeal ensued.


                                     Discussion and Decision
[7]   B.N. appeals his adjudication as a delinquent. In particular, B.N. asserts that

      the State failed to present sufficient evidence to support his adjudication

      because J.N.’s testimony was incredibly dubious. When the incredible-

      dubiosity rule is applied, we may “impinge upon a fact finder’s function to

      assess the credibility of a witness.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind.

      2011). However, this rule only applies in “limited circumstances.” Moore v.

      State, 27 N.E.3d 749, 754 (Ind. 2015). Namely, the incredible-dubiosity rule

      requires that there be “1) a sole testifying witness; 2) testimony that is inherently

      contradictory, equivocal, or the result of coercion; and 3) a complete absence of

      circumstantial evidence.” Id. at 756. But B.N.’s argument fails to demonstrate

      that the incredible-dubiosity rule applies here.


[8]   First, the State called additional witnesses besides J.N. who testified in support

      of J.N.’s claim. The testimony of nonvictim witnesses as to what the victim

      said out of court is admissible to avoid application of the incredible-dubiosity

      rule. Turner, 953 N.E.2d at 1059-60. J.N.’s adoptive mother, J.N.’s biological

      mother, J.N.’s biological aunt, and Madeiros all testified in support of J.N.’s

      claim. Even if there are contradictions in the testifying witnesses’ claims, it is

      “indistinguishable from any other case where the jury has the duty to assess the

      credibility of witnesses.” Id. at 758. “It is for the trier of fact to resolve conflicts


      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-JV-771 | March 15, 2016   Page 4 of 6
       in the evidence and to decide which witnesses to believe or disbelieve.”

       Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001). Accordingly, B.N. cannot

       demonstrate that the State’s evidence against him violated the incredible-

       dubiosity rule.


[9]    Second, even if we were to consider only J.N.’s testimony, his allegedly

       contradictory statements were between statements made at the prehearing and

       during the fact-finding hearing. In the adult criminal context, the Indiana

       Supreme Court has repeatedly refused to apply the incredible-dubiosity rule to

       statements made pretrial and during trial when the statements made during trial

       are consistent. Turner, 953 N.E.2d at 1059; see also Murray v. State, 761 N.E.2d

       406, 409 (Ind. 2002) (“The fact that a witness gives trial testimony that

       contradicts earlier pre-trial statements does not necessarily render the trial

       testimony incredibly dubious.”). We will not deviate from those holdings in

       this case. J.N.’s statements during B.N.’s fact-finding hearing were consistent,

       and, thus, the incredible-dubiosity rule does not apply here.


[10]   Finally, we note that B.N. also suggests that the juvenile court rendered

       inconsistent judgments when it entered not-true findings on some of the State’s

       allegations but then adjudicated him a delinquent on the child-molesting

       allegation. We reject that argument. The fact that the court did not find B.N.

       to be a delinquent on three of the four allegations is insufficient to demonstrate

       that the court’s adjudication that B.N. was a delinquent on the child

       molestation allegation was erroneous. As the Indiana Supreme Court has

       recognized in the context of a jury verdict in a criminal case, such decisions

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       “are not subject to appellate review on grounds that they are inconsistent,

       contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind.

       2010). Furthermore, logically inconsistent verdicts may be due to a fact-finder’s

       choice to exercise lenity and “refus[e] to find the defendant guilty of one or

       more additionally charged offenses, even if such charges were adequately

       proven by the evidence.” Id. at 648. Indiana jurisprudence recognizes a fact-

       finder’s use of lenity as “an important component of our criminal justice

       system.” Id. at 649.


[11]   In sum, we affirm B.N.’s adjudication for child molestation, as a Level 4 felony

       when committed by an adult.


[12]   Affirmed.


       Riley, J., and May, J. concur.




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