MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      May 22 2020, 9:26 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                                   ATTORNEY FOR APPELLEE
Nancy A. McCaslin                                        Myriam Serrano
McCaslin & McCaslin                                      Deputy Attorney General
Elkhart, Indiana                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

M.A.,                                                    May 22, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-JV-2836
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Petitioner.                                     Christofeno, Judge
                                                         The Honorable Deborah Domine,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         20C01-1908-JD-252



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-2836 | May 22, 2020                            Page 1 of 6
                                          Statement of the Case
[1]   M.A. appeals the juvenile court’s determination adjudicating her a juvenile

      delinquent. We affirm.


                                                     Issue
[2]   The sole issue in this appeal is whether the State’s evidence was sufficient to

      support the determination that M.A. committed the offense of child molesting,
                              1
      a Level 3 felony if committed by an adult.


                                   Facts and Procedural History
[3]   In March 2019, twelve-year-old M.A. lived with her mother and brothers next

      door to eight-year-old J.H.; her eleven-year-old sister, A.H.; and their mother.

      The three girls had been playing together one evening and asked if M.A. could

      stay overnight with J.H. and A.H. J.H. and A.H. put their mattresses together

      on the floor, and the girls all slept there together with J.H. on one side, M.A. in

      the middle, and A.H. on the side by the wall.


[4]   Before going to sleep, M.A. kissed A.H. and then turned and kissed J.H. on the

      lips. M.A. then put her finger inside J.H.’s vagina. J.H. moved M.A.’s hand

      and told her to stop. J.H. then went to sleep in her mother’s room.




      1
          Ind. Code § 35-42-4-3 (2015).


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2836 | May 22, 2020   Page 2 of 6
[5]   In the morning, J.H. told her mother what had happened the night before.

      J.H.’s mother gathered together the three girls and M.A.’s mother and they all

      discussed what had happened. M.A. denied the incident. J.H.’s mother

      decided not to report the incident right away, but soon thereafter J.H. told her

      therapist about the incident, and the therapist reported the incident to the

      authorities.


[6]   In August, the State filed a delinquency petition alleging these acts by M.A.,

      and the court held an evidentiary hearing on November 1. The court

      determined that M.A. is a delinquent child and ordered M.A. to have no

      intentional conduct with J.H., to be placed on probation supervision, and to

      complete a psychosexual assessment. M.A. now appeals.


                                   Discussion and Decision
[7]   When reviewing on appeal the sufficiency of the evidence supporting a juvenile

      adjudication, we neither reweigh the evidence nor judge the credibility of the

      witnesses. Z.A. v. State, 13 N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider

      only the evidence most favorable to the judgment and the reasonable inferences

      therefrom, and we will affirm if the evidence and those inferences constitute

      substantial evidence of probative value to support the judgment. C.L. v. State, 2

      N.E.3d 798, 800 (Ind. Ct. App. 2014).


[8]   To sustain a true finding that M.A. committed an act that would constitute

      Level 3 felony child molesting if committed by an adult, the State was required

      to prove beyond a reasonable doubt that M.A., with a child under fourteen

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2836 | May 22, 2020   Page 3 of 6
       years of age (J.H.), knowingly or intentionally performed or submitted to sexual

       intercourse or other sexual conduct. Ind. Code § 35-42-4-3(a); Appellant’s App.

       Vol. II, p. 9. Section 35-31.5-2-221.5 (2) (2014) defines the phrase “other sexual

       conduct” as the penetration of the sex organ of a person by an object. Under

       this statute, a finger qualifies as an “object.” See Hurley v. State, 560 N.E.2d 67,

       69 (Ind. Ct. App. 1990) (holding that, under prior version of Section 35-31.5-2-

       221.5, defendant’s finger qualified as “object”).


[9]    M.A. contends the State was also required to prove that her act was

       accompanied by the specific intent to arouse or satisfy sexual desires.

       Appellant’s Br. p. 11. M.A. is mistaken. Indiana Code section 35-42-4-3(b)

       requires the State to prove that a person, with a child under fourteen years of

       age, performs or submits to any fondling or touching, of either the child or the

       older person, with the intent to arouse or to satisfy the sexual desires of either

       the child or the older person. However, as we set out in the previous

       paragraph, M.A. was charged pursuant to Section 35-42-4-3(a). Subsection (a)

       does not require any showing of an intent to arouse or satisfy sexual desires.


[10]   Turning to the evidence presented at the fact-finding hearing, we note that J.H.

       testified that M.A. “kissed me on my mouth.” Tr. Vol. II, p. 40. J.H. also

       testified that M.A. “kept touching me inappropriately.” Id. The prosecuting

       attorney asked J.H. to explain what she meant by that, and she testified that

       M.A. “took her finger and she went inside me.” Id. at 41. J.H. further clarified

       that M.A. put her finger in J.H.’s “birdie,” which J.H. had previously testified



       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2836 | May 22, 2020   Page 4 of 6
       is what she calls “the front part” of her body where she pees, and that “[i]t

       hurt.” Id. at 41, 33, 42.


[11]   In her brief, M.A. suggests this Court should reweigh the evidence and assess

       the credibility of the witnesses because J.H.’s testimony is (1) uncorroborated,

       (2) incredibly dubious, and (3) contradicted by the testimony of other witnesses.


[12]   First, we reiterate the well-settled rule that when we review the sufficiency of

       the evidence, we are prohibited from reweighing the evidence and judging the

       credibility of the witnesses. Z.A., 13 N.E.3d at 439. Here, J.H.’s testimony was

       unambiguous, and a determination of juvenile delinquency may be supported

       by only the uncorroborated testimony of a victim. D.P. v. State, 80 N.E.3d 913,

       915 (Ind. Ct. App. 2017).


[13]   Next, the incredible dubiosity rule applies only when the witness’ testimony is

       inherently contradictory, meaning that she contradicts herself in a single

       statement or while testifying. Glenn v. State, 884 N.E.2d 347, 356 (Ind. Ct. App.

       2008), trans. denied. J.H.’s testimony was not incredibly dubious; rather, the

       eight-year-old testified unequivocally that M.A. kissed her on the lips and put

       her finger in J.H.’s vagina.


[14]   Finally, M.A. points to contradictions in the testimony of the State’s witnesses.

       She points to the fact that although J.H. testified M.A. kissed her on the lips,

       M.A. testified she kissed A.H. on the forehead and kissed J.H. on the cheek,

       and A.H. testified no kissing occurred. M.A. also asserts the girls testified

       inconsistently about their wrestling and their game of truth or dare. The court

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2836 | May 22, 2020   Page 5 of 6
       specifically stated in its order that “[J.H.] is a third grader. She was clear and

       unwavering in her testimony” and that “[a] decision in this case comes down to

       credibility and [J.H.] was a credible witness.” Appealed Order, pp. 2, 3. “By

       contrast, even acknowledging that [M.A.] is only twelve and a child too, her

       testimony was not credible.” Id. at 3. Any conflicts in the testimony were for

       the juvenile court to resolve, and it did so in favor of believing J.H. See K.D. v.

       State, 754 N.E.2d 36, 39 (Ind. Ct. App. 2001) (stating it is function of trier of

       fact to resolve conflicts in testimony, determine weight of evidence, and assess

       credibility of witnesses).


                                                Conclusion
[15]   For the foregoing reasons, we conclude the State presented sufficient evidence

       to establish that M.A. committed an act that, if she were an adult, would

       constitute child molesting, a Level 3 felony.


[16]   Affirmed.


       Vaidik, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2836 | May 22, 2020   Page 6 of 6
