MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Nov 13 2019, 10:03 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Amy D. Griner                                            Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

H.H.,                                                    November 13, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-JV-1102
        v.                                               Appeal from the St. Joseph
                                                         Probate Court
State of Indiana,                                        The Honorable Jason Cichowicz,
Appellee-Petitioner                                      Judge
                                                         The Honorable Graham Polando,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71J01-1804-JD-99



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019                 Page 1 of 5
[1]   H.H. appeals the juvenile court’s adjudication that he was delinquent for

      committing an act that would be Level 6 Felony Sexual Battery1 had it been

      committed by an adult, arguing that the evidence is insufficient to support the

      adjudication. Finding the evidence sufficient, we affirm.


                                                   Facts
[2]   On October 7, 2017, K.K. was attending a high school football game with

      friends. K.K. lost track of her friend with whom she was supposed to spend the

      night, so she and a different friend, L.M., called a fellow student, J.B., to come

      and get them. Soon thereafter, J.B. arrived with H.H. and two other male

      friends to pick them up. While inside the vehicle, everyone started passing

      around a bottle of “mango tast[ing]” alcohol and drinking from it. Tr. Vol. II p.

      24. According to K.K., she took “a couple drinks.” Id.


[3]   Then, the car pulled over at a local beach. K.K. and L.M. exited the vehicle,

      but K.K. testified that she “[was] having trouble standing,” “was dizzy,” and

      “could barely see.” Id. at 26. K.K. and L.M. smoked from a marijuana cigarette

      being passed around, got back in the vehicle, and left the beach.


[4]   J.B. and H.H. invited K.K. and L.M. to H.H.’s house to spend the night. K.K.

      and L.M. agreed, and upon arriving at the house, the party snuck through the

      back door to avoid detection. All four of them went into H.H.’s parents’




      1
          Ind. Code § 35-42-4-8(a)(1)(B).


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019   Page 2 of 5
      bedroom and got into the bed. After that point, K.K. testified that “[i]t started

      to get a little fuzzy there, like I blacked out” and that “I don’t remember that

      much.” Id. at 28. J.B. and L.M. went into a separate bedroom, leaving H.H.

      and K.K. in H.H.’s parents’ bedroom. For the rest of the night, K.K. testified

      that she “felt like [she] was getting sick and not feeling good.” Id. K.K. began

      slipping in and out of consciousness and waking up sporadically. The first time

      she woke up, K.K. felt H.H. on top of her, kissing her mouth. K.K. slipped

      back into unconsciousness, and the next thing she remembered was J.B. and

      L.M. reentering the bedroom and sleeping in the same bed. K.K. did not

      remember anything else until she awakened the next morning and called her

      sister to pick her up.


[5]   On April 6, 2018, the State filed a delinquency petition, alleging that H.H. was

      delinquent for committing acts that would be two counts of Level 6 felony

      sexual battery had they been committed by an adult. Following a February 5,

      2019, fact-finding hearing, the juvenile court adjudicated H.H. to be delinquent

      on one count and dismissed the other. After H.H.’s April 17, 2019,

      dispositional hearing, the juvenile court placed H.H. on strict, indefinite

      probation and ordered that he participate in sex-offense treatment. H.H. now

      appeals.


                              Discussion and Decision
[6]   H.H.’s sole argument on appeal is that the evidence is insufficient to support the

      juvenile court’s delinquency adjudication.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019   Page 3 of 5
[7]   Our standard of review for these types of juvenile cases is well established:


              “In reviewing a sufficiency of the evidence claim, we do not
              reweigh the evidence or assess the credibility of the witnesses.”
              Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). “Rather, we
              look to the evidence and reasonable inferences drawn therefrom
              that support the [judgment], and we will affirm the [adjudication]
              if there is probative evidence from which a reasonable [factfinder]
              could have found the defendant guilty beyond a reasonable
              doubt.” Id. We must therefore reverse if there is no evidence or
              reasonable inference to support any one of the necessary elements
              of the offense. E.g., Grace v. State, 731 N.E.2d 442, 445 (Ind. 2000).
              (“[T]here must be sufficient evidence on each material element” to
              affirm a conviction).


      K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013) (alterations in original); see also

      A.J.R. v. State, 3 N.E.3d 1000, 1004-05 (Ind. Ct. App. 2014).


[8]   To adjudicate H.H. as delinquent for committing an act that would be Level 6

      felony sexual battery had it been committed by an adult, the State was required

      to prove beyond a reasonable doubt that H.H., with the intent to arouse or

      satisfy his own sexual desires or K.K.’s sexual desires, touched K.K. when she

      was so mentally disabled or deficient that consent to the touching could not

      have been given. I.C. § 35-42-4-8(a)(1)(B). Specifically, H.H. argues that the

      evidence is insufficient to prove that K.K. was so mentally disabled or deficient

      that she could not consent to the touching.


[9]   While it is true that “[t]he plain meaning of ‘mentally disabled or deficient[]’ . .

      . would exclude a temporary, natural state such as sleep from inclusion in that

      phrase,” Ball v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), the evidence in

      the record shows that K.K. was under the influence of substances that
      Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019   Page 4 of 5
       contributed to her deficient mental state. K.K. testified that after drinking the

       alcohol, she had trouble walking and felt “very dizzy[.]” Tr. Vol. II p. 27. Then,

       after smoking an unknown amount of marijuana, K.K. returned with H.H. to

       his home and stated that she felt ill all night. At multiple instances, K.K. slipped

       in and out of consciousness, explaining that she had trouble remembering

       certain moments, particularly the one where she claimed H.H. had gotten on

       top of her and kissed her. In fact, she only fully came to her senses the next

       morning when she called her sister to come get her.


[10]   Based on this evidence, we find that a reasonable factfinder could have

       concluded that K.K.’s mental state was so deficient due to these substances that

       she was unable to give consent. Any argument by H.H. that we should

       reconsider testimony or reexamine K.K.’s credibility amounts to a request that

       we reweigh the evidence, which we may not do. We will consider any and all

       logical and reasonable inferences drawn from the evidence in favor of the

       juvenile court’s ruling. Consequently, the evidence was sufficient to adjudicate

       H.H. as delinquent for committing an act that would be Level 6 felony sexual

       battery had it been committed by an adult.


[11]   The judgment of the juvenile court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-1102 | November 13, 2019   Page 5 of 5
