MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Mar 15 2018, 8:07 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David C. Kolbe                                          Curtis T. Hill, Jr.
Warsaw, Indiana                                         Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven Hagan,                                           March 15, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        43A03-1706-CR-1324
        v.                                              Appeal from the Kosciusko
                                                        Superior Court
State of Indiana,                                       The Honorable David C. Cates,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        43D01-1606-F6-328



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018        Page 1 of 10
                                             Case Summary
[1]   Steven Hagan appeals his convictions for Level 6 felony child seduction and

      Class A misdemeanor contributing to the delinquency of a minor. We affirm.


                                                    Issues
[2]   Hagan raises two issues, which we consolidate and restate as whether the

      evidence is sufficient to sustain his convictions.


                                                    Facts
[3]   Forty-seven-year-old Hagan lived with his wife and daughters, including A.H.

      A.H.’s best friend was sixteen-year-old J.S. During late 2015, J.S. started

      spending the night with A.H. frequently, and it increased gradually until she

      was spending five nights a week with A.H. While J.S. was with the Hagans,

      they provided her with food, toiletries, occasionally clothing, allowed her to

      drive their car, asked if she could be placed on their health insurance, expected

      her to follow the rules of their house, and built a bedroom for her in the

      basement. Hagan got J.S. a job with his employer, added J.S. to their family

      YMCA membership, and opened a bank account for her that required his

      approval for withdrawals. At Christmas 2015, Hagan’s relationship with J.S.

      began to change into a sexual relationship.


[4]   In March 2016, Hagan took J.S. on a college visit to Indianapolis. J.S.’s

      mother learned that A.H. did not go on the trip and became suspicious about

      the relationship between Hagan and J.S. J.S.’s mother then texted Hagan and

      told him to stay away from J.S., and she refused to let J.S. go to Hagan’s house
      Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 2 of 10
      anymore. She met Hagan in a parking lot to get J.S.’s clothing and again told

      Hagan to stay away from J.S. Someone then left another bag of clothing at

      their door, and Hagan had hidden a cellphone for J.S. in the bag.


[5]   On April 15, 2016, J.S.’s mother asked J.S. to go out to dinner with her. J.S.

      said that she was tired and refused to go. J.S. used the cellphone provided by

      Hagan to call Michelle Fritz, Hagan’s sister. She told Fritz that she had run

      away, that she was in the woods, and that she needed a ride. However, Fritz

      was unable to locate J.S. J.S. also called Hagan. Hagan contacted his friend,

      Kevin Zickefoose, and asked him to pick up Hagan’s “niece” at Flexhaust.

      Appellant’s App. Vol. II p. 44. Zickefoose picked up J.S. and took her to his

      house, but his estranged wife was “pretty livid.” Id. at 46. Zickefoose then took

      J.S to a hotel.


[6]   When J.S.’s mother returned home, she realized that J.S. was gone and

      reported to the police that J.S. was a runaway. Officers called Hagan, who said

      that he was not with J.S. and that he did not know where she was. Hagan’s

      sister, Michelle Fritz, flagged down an officer and gave officers the phone

      number that J.S. was using. The officers performed an “emergency locate” on

      the cell phone and learned that it was located near an Applebee’s restaurant. Id.

      at 23. The officers could not locate J.S. at the Applebee’s and started checking

      the hotels near that location. They located J.S. in a hotel room with

      Zickefoose.




      Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 3 of 10
[7]   The State charged Hagan with Level 6 felony child seduction and Class A

      misdemeanor contributing to the delinquency of a minor. After a bench trial,

      Hagan was found guilty as charged. The trial court sentenced him to one year

      for the Level 6 felony conviction and six months for the misdemeanor

      conviction with the sentences to be served concurrently and suspended to

      probation. Hagan now appeals.


                                                  Analysis
[8]   Hagan argues that the evidence is insufficient to sustain his conviction. When

      reviewing the sufficiency of the evidence needed to support a criminal

      conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

      State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

      supporting the judgment and any reasonable inferences that can be drawn from

      such evidence.” Id. We will affirm if there is substantial evidence of probative

      value such that a reasonable trier of fact could have concluded the defendant

      was guilty beyond a reasonable doubt. Id.


                                            A. Child Seduction

[9]   Indiana Code Section 35-42-4-7(m) governs the offense of child seduction and

      provides:


              If a person who:


              (1) is at least eighteen (18) years of age; and


              (2) is the:

      Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 4 of 10
                           (A) guardian, adoptive parent, adoptive grandparent,
                           custodian, or stepparent of; or


                           (B) child care worker for;


                           a child at least sixteen (16) years of age but less than
                           eighteen (18) years of age;


                  engages with the child in sexual intercourse, other sexual conduct
                  (as defined in IC 35-31.5-2-221.5), or any fondling or touching
                  with the intent to arouse or satisfy the sexual desires of either the
                  child or the adult, the person commits child seduction.


       The statute defines “custodian” as “any person who resides with a child and is

       responsible for the child’s welfare.” I.C. § 35-42-4-7(e). Hagan’s only argument

       is that the State failed to present evidence to demonstrate that he was J.S.’s

       “custodian.” He does not dispute that the State presented sufficient evidence

       regarding the other elements of the offense.


[10]   In support of his argument, Hagan relies on State v. D.M.Z., 674 N.E.2d 585

       (Ind. Ct. App. 1996), trans. denied. There, a child-care worker employed at a

       youth shelter was charged with child seduction for seducing a sixteen-year-old

       resident of the shelter. The defendant argued that she did not qualify as a

       “custodian” for purposes of the child seduction statute.1 We agreed and held:


                  Here, the State’s evidence shows that D.M.Z. was a staff
                  employee at the Shelter and held the position of a “child-care


       1
           The child seduction statute was later amended to include a “child care worker.”


       Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 5 of 10
               worker.” She was responsible for supervision of the day-to-day
               activities of the residents and would discuss with parents,
               probation officers, and caseworkers a child’s specific behavioral
               problems. D.M.Z. could decide whether a child was to
               participate in a school recreational function or an extracurricular
               activity based upon the child’s behavior, and she could suspend a
               child’s privileges if necessary. As a child-care worker, D.M.Z.
               was expected to handle medical emergencies and was permitted
               to administer over-the-counter medications. Her duties also
               required her to monitor a resident’s daily hygiene habits.


               However, to be a “custodian” within the meaning of the child
               seduction statute, an individual must exercise more than limited
               or occasional supervision over a child. D.M.Z. was an hourly
               employee at the very bottom of the organization chart and was
               herself subject to the direction and control of a counselor. On
               these facts, it cannot be said that she was responsible for the
               child’s welfare.


               We hold that to be a custodian under the statute, a person
               “responsible for a child’s welfare,” a person must occupy a
               position of trust and have the authority and responsibility to
               make decisions concerning the child’s welfare, to act without
               guidance or superior authority, as a parent would or in loco
               parentis. D.M.Z. did not occupy such a position. Accordingly,
               we hold that D.M.Z. was not C.P.’s custodian and that the trial
               court properly dismissed the charges against her.


       D.M.Z., 674 N.E.2d at 589-90 (internal citations and footnote omitted).


[11]   We reached a different conclusion in Gellenbeck v. State, 918 N.E.2d 706 (Ind.

       Ct. App. 2009). There, a sixteen-year-old child was living with her uncle and

       aunt during the week. She stayed with her father every other weekend. The

       uncle and aunt provided her with food, shelter, transportation, homework and
       Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 6 of 10
school assistance and required her to obey their rules. They were authorized to

punish or discipline the child. However, her father continued providing

financial support, medical care, insurance, clothing, and school supplies, and

took her to appointments. The uncle began a sexual relationship with the child,

and he was convicted of child seduction. On appeal, he argued that he was not

the child’s custodian. We held:


        We conclude that the record contains ample evidence to allow a
        jury to conclude that Gellenbeck was a “custodian” under section
        35-42-4-7. The record contains testimony that Gellenbeck and
        his wife had responsibility for parental tasks; they provided V.S.
        with food, shelter, and transportation; and they were authorized
        to discipline V.S. if she failed to follow their rules. Gellenbeck
        spent an “enormous amount of time” assisting V.S. with her
        studies and homework and was authorized to communicate with
        her school regarding educational issues. There is no evidence
        that Father had any influence over Gellenbeck’s exercise of these
        responsibilities. Moreover, V.S. regarded Gellenbeck as a father
        figure.


        Indeed, the reason V.S. moved in with Gellenbeck and Theresa
        at all was so that they could help her to progress and thrive, as a
        parent would be expected to. Before moving in, V.S.’s
        relationships with her mother and Father had deteriorated, as
        had her grades, problems Father felt helpless to correct. The
        record indicates that Gellenbeck and Theresa enthusiastically
        welcomed their new charge, being “more than willing to do
        whatever it took to help out to try to straighten out V.S.’s life.”
        Gellenbeck was clearly charged with far more than mere
        supervision—it seems that he was charged with nothing less than
        helping V.S. to turn her academic and personal lives around, a
        responsibility he willingly accepted. So, while Father retained
        some responsibility for V.S.’s welfare, this did not negate

Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 7 of 10
               Gellenbeck’s responsibility, which was great indeed. Thus, we
               conclude that the State presented sufficient evidence for a
               reasonable jury to conclude that Gellenbeck was V.S.’s custodian
               under the statute.


       Gellenbeck, 918 N.E.2d at 711.


[12]   Hagan argues that he “stood in a significantly lesser role than the Gellenbecks”

       and that he was more like the defendant in D.M.Z. Appellant’s Br. p. 17. We

       disagree and conclude that this case is more like Gellenbeck. The State was

       required to demonstrate that Hagan resided with J.S. and that he was

       responsible for her welfare. During late 2015 and early 2016, J.S. spent five

       nights a week with the Hagans. During this time, they provided her with food,

       toiletries, occasionally clothing, allowed her to drive their car, asked if she

       could be placed on their health insurance, expected her to follow the rules of

       their house, and built a bedroom for her in the basement. Hagan got J.S. a job

       with his employer, added J.S. to their family YMCA membership, and opened

       a bank account for her that required his approval for withdrawals. In March

       2016, Hagan took J.S. on a college visit to Indianapolis. Although J.S.’s

       mother still retained some control over J.S., the State presented sufficient

       evidence that J.S. was residing with Hagan and that he was at least partially

       responsible for her welfare. Hagan’s argument to the contrary is merely a

       request that we reweigh the evidence, which we cannot do. The evidence is

       sufficient to sustain Hagan’s conviction for child seduction.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 8 of 10
                           B. Contributing to the Delinquency of a Minor

[13]   Indiana Code Section 35-46-1-8(a) governs the offense of contributing to the

       delinquency of a minor and provides: “A person at least eighteen (18) years of

       age who knowingly or intentionally encourages, aids, induces, or causes a child

       to commit an act of delinquency (as defined by IC 31-37-1 or IC 31-37-2)

       commits contributing to delinquency, a Class A misdemeanor . . . .” The State

       alleged that the delinquent act J.S. committed was being a runaway. Indiana

       Code Section 31-37-2-2 provides: “A child commits a delinquent act if, before

       becoming eighteen (18) years of age, the child leaves home or a specific location

       previously designated by the child’s parent, guardian, or custodian: (1) without

       reasonable cause; and (2) without permission of the parent, guardian, or

       custodian, who requests the child’s return.”


[14]   Hagan argues that, after J.S. ran away, he urged her to return to her mother and

       that he did nothing to encourage, induce, or cause her to leave home.

       However, the State presented evidence that, after beginning a romantic

       relationship with J.S., Hagan encouraged her to “stand up to” her mother, told

       her that she had “rights and that [she] should use them,” and said that she

       should become emancipated from her mother. Tr. Vol. II pp. 122-23. He also

       secretly gave J.S. a cell phone. After J.S. left her home, she called Hagan, who

       gave her the code to get into his employer’s business and called his friend to

       pick her up. When officers contacted Hagan, he denied knowing where J.S.

       was located. This evidence is sufficient to demonstrate that Hagan knowingly



       Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 9 of 10
       or intentionally aided J.S. in her attempt to run away. Hagan’s argument is

       merely a request that we reweigh the evidence, which we cannot do.


                                                Conclusion
[15]   The evidence is sufficient to sustain Hagan’s convictions for Level 6 felony

       child seduction and Class A misdemeanor contributing to the delinquency of a

       minor. We affirm.


[16]   Affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1706-CR-1324| March 15, 2018   Page 10 of 10
