                                                                            FILED
MEMORANDUM DECISION                                                    Mar 22 2017, 9:22 am

                                                                            CLERK
                                                                        Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D), this                                Court of Appeals
                                                                             and Tax Court
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
Adam C. James                                            Curtis T. Hill, Jr.
Shelbyville, Indiana                                     Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

John F.M. Shaw,                                         March 22, 2017

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        73A01-1609-CR-2204
        v.                                              Appeal from the Shelby Circuit
                                                        Court.
                                                        The Honorable Charles D.
State of Indiana,                                       O’Connor, Judge.
Appellee-Plaintiff.                                     Cause No. 73C01-1408-FA-17




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017            Page 1 of 9
                                                                                                      1
[1]   John Shaw appeals his jury convictions of child molesting as a Class A felony,
                                                              2
      and child solicitation as a Class D felony. The sole issue he raises is whether

      the State presented sufficient evidence to support his convictions. We affirm.


[2]   Shaw and Christine Sargent met, dated, and eventually began living together.

      Their residence was in Shelby County, Indiana. They lived together for

      approximately four years before marrying in 2014.


[3]   Christine has two children, a son, W.D., and a daughter, E.S., who lived with

      her and Shaw. E.S. was born with physical disabilities. She has no tear ducts

      in her right eye, a bilateral cleft lip and cleft palate, and issues due to amniotic

      band constriction.


[4]   Shaw suffered from health problems that made it difficult for him to walk, and

      he was unable to work on a consistent basis. He spent large parts of the day in

      his recliner located on the first floor of the house. Christine worked two jobs

      that kept her away from the house most of the day and night.


[5]   One day, when E.S. was in the sixth grade and eleven years old, she returned

      home from school and asked Shaw what a “blowjob” was. Tr. p. 30. E.S. had

      not heard the term before, but had heard older girls discussing the term at

      school. Shaw explained the term such that E.S. understood it to mean




      1
          Ind. Code § 35-42-4-3(a)(1) (West, Westlaw 2007).
      2
          Ind. Code § 35-42-4-6 (West, Westlaw 2007).


      Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017   Page 2 of 9
      performing oral sex. Later that day, Shaw asked E.S. if she “wanted to try it.”

      Id. E.S. said no, and Shaw replied that she “need[ed] to practice so when you

      do give your first blowjob to your boyfriend or whoever, they don’t leave you

      because you can’t do it right.” Id. On a near daily basis, Shaw continued to ask

      E.S. if she wanted to practice oral sex.


[6]   Sometime in December 2012, “around Christmas break of [E.S.’s] sixth grade

      year,” when Shaw was thirty-five years old, and E.S. was eleven, E.S. agreed to

      Shaw’s request to “practice” oral sex. Id. at 32, 33. Shaw and E.S. were in the

      living room of their house. Shaw was in his recliner, and E.S. was sitting on

      the couch. Christine was at work, and W.D. was visiting his father. Shaw

      instructed E.S. to kneel on the floor beside him, put her hand around his penis,

      and slowly move her hand up and down. A few minutes later, Shaw told her to

      put her mouth on his penis and “do the same thing.” Id. at 33. E.S. stopped

      because she felt uncomfortable. She walked to the bathroom and cleaned her

      face “because [she] felt like [she] was about to cry.” Id. at 35. Later, Shaw said

      to E.S., “the only problem you have is that you need to keep your teeth out of

      the way.” Id. at 36.


[7]   The next incident occurred in the spring of 2013, toward the end of E.S.’s sixth

      grade year when she was twelve years old. Christine was at work, and W.D.

      was upstairs in bed. Shaw and E.S. were in the living room, watching a zombie

      movie.




      Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017   Page 3 of 9
[8]    E.S. asked why a woman would be worried about putting on makeup during a

       zombie apocalypse. Shaw replied that humans have “urges,” and that he “[bet]

       they had a[t] least one orgy.” Id. at 37. Later that evening, Shaw reminded

       E.S. that she needed to practice oral sex. E.S. relented. Shaw was laying on

       the couch. He instructed E.S. to climb on top of him in the “69 position” and

       perform oral sex on him. While the act occurred, Shaw rubbed E.S.’s vaginal

       area on the outside of her clothing. At some point, Shaw told E.S. to stop

       because she “didn’t need to taste that yet.” Id. at 40. E.S. testified, “I did have

       something in my mouth during the second incident . . . that I didn’t understand

       what it was and I thought it was just saliva and I swallowed it.” Id. at 42. E.S.

       went to the bathroom to clean her face.


[9]    The third incident occurred in 2014, at the end of E.S.’s seventh grade year.

       She was thirteen years old. Shaw and E.S. were watching television in the

       living room. Shaw was sitting in his recliner and E.S. was laying on the couch.

       Shaw asked if E.S. wanted to practice oral sex. E.S. finally acquiesced, and

       following Shaw’s instructions, knelt beside him and performed oral sex on

       Shaw. He told her to stop because, as he stated before, she “didn’t need to taste

       that yet.” Tr. p. 47. Christine was at work, and W.D. was at a friend’s house.


[10]   On August 22, 2014, when E.S. was thirteen years old and in the eighth grade,

       she told her mother about the incidents with Shaw. She did not tell her mother

       sooner because Shaw told her that it was a secret, and that if she did tell, he

       would accuse her of lying.



       Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017   Page 4 of 9
[11]   Christine took E.S. to the police station, and E.S. gave a statement to a

       detective. Shaw went to the police station on two separate occasions and

       provided two separate statements to the detective.


[12]   Shaw was charged with child molesting as a Class A felony, child molesting as

       a Level 1 felony, and child solicitation as a Class D felony. The Level 1 felony

       count was dismissed. Following a jury trial, Shaw was found guilty of the

       remaining charges. He was sentenced to thirty years, with twenty-five years

       executed and five years suspended to probation. Shaw appeals.


[13]   Shaw maintains there was insufficient evidence to support his convictions.

       When reviewing the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       trial court’s decision. Drane v. State, 867 N.E.2d 144 (Ind. 2007). It is the

       factfinder’s role, and not ours, to assess witness credibility and weigh the

       evidence to determine whether it is sufficient to support a conviction. Id. To

       preserve this structure, when we are confronted with conflicting evidence, we

       consider it most favorably to the trial court’s ruling. Id. We affirm a conviction

       unless no reasonable factfinder could find the elements of the crime proven

       beyond a reasonable doubt. Id. It is therefore not necessary that the evidence

       overcome every reasonable hypothesis of innocence; rather, the evidence is

       sufficient if an inference reasonably may be drawn from it to support the trial

       court’s decision. Id.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017   Page 5 of 9
[14]   Shaw maintains that the evidence is insufficient to support his convictions

       because E.S. presented inconsistent testimony at trial. According to Shaw, E.S.

       contradicted herself when she testified to when the incidents occurred and how

       many incidents occurred; E.S. was unable to provide distinguishing physical

       features of Shaw’s penis; and, on the day E.S. reported the incidents to her

       mother, she showed no emotion, but later that day, she was observed laughing.


[15]   To obtain a conviction for child molesting as a Class A felony, the State must

       have proved beyond a reasonable doubt that (1) Shaw, a person at least twenty-

       one years of age, (2) with E.S., a child under fourteen years of age, (3)

       performed or submitted to sexual intercourse or deviate sexual conduct. See

       Ind. Code § 35-42-4-3(a)(1) (2007); Appellant’s App. p. 19. Regarding Shaw’s

       conviction for child solicitation, at the time of the offense, the child solicitation

       statute provided in part:

               A person eighteen (18) years of age or older who knowingly or
               intentionally solicits a child under fourteen (14) years of age, or
               an individual the person believes to be a child under fourteen (14)
               years of age, to engage in:
               (1) sexual intercourse;
               (2) deviate sexual conduct; or
               (3) any fondling or touching intended to arouse or satisfy the
               sexual desires of either the child or the older person;
               commits child solicitation, a Class D felony.


       Ind. Code § 35-42-4-6(b) (2007). “Deviate sexual conduct” (at the time of the

       offense) was defined in relevant part as “an act involving . . . a sex organ of one


       Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017   Page 6 of 9
       (1) person and the mouth or anus of another person.” Ind. Code § 35-31.5-2-94

       (2012), repealed by P.L. 158-2013.


[16]   E.S. testified unequivocally that Shaw instructed her to perform oral sex on him

       three times: in December of 2012; in the spring of 2013; and in 2014, at the end

       of her seventh grade school year. She testified that Shaw asked her on an

       ongoing and continuing basis if she wanted to perform oral sex on him. She

       accurately recalled where the incidents took place (in the living room) and what

       she and Shaw were doing prior to the acts. She remembered the instructions

       Shaw gave her as to how to perform the oral sex, and that Shaw’s penis was

       erect at the time of the incidents. Christine testified that she asked E.S. how

       Shaw’s semen tasted. E.S. recalled it tasting “bittery.” Tr. p. 160.


[17]   Shaw’s videotaped statements to the detective regarding the incidents, were

       entered into evidence, along with a transcription. His statements corroborated

       E.S.’s testimony. Although Shaw claimed to be in a dream-state when the oral

       sex took place, because of medication he took, and maintained that E.S.

       initiated the sexual acts, he admitted that oral sex took place between him and

       E.S. Shaw told the detective the “[o]nly thing I remember is that [. . .] it was

       like I was having a dream. (Pause) I opened my eyes [. . .] saw [E.S. down

       there] or saw somebody down there.” Ex. Vol. p. 75. He told the detective that

       the dream occurred in October or November, around 5:00 or 6:00 p.m.; that at

       the time of the “dream” he was downstairs in his recliner, Christine was at

       work, and W.D. was visiting his father; that his penis was semi-erect and was

       sticking to his underwear; and that the only female who could have been in the

       Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017   Page 7 of 9
       dream was E.S. Shaw indicated that the dream of E.S. performing oral sex on

       him occurred twice. Shaw told the detective he had a conversation with E.S.

       about “blowjobs.” He also told the detective that he remembered an instance

       when E.S.’s mouth was on his penis for “about [. . .] 30 seconds.” Id. at 105.

       He later told the detective, “Okay [. . .] I [. . .] guess I was awake [during the

       oral sex]. But [. . .] as soon as [. . .] anything happened and everything I kicked

       her off and told her to stop.” Id. at 153. And then, “I allowed it to happen, but

       I stopped it.” Id. at 155.


[18]   In assessing E.S.’s credibility, it was well within the province of the jury to

       reconcile any inconsistencies between her prior statements and her trial

       testimony. See Bixler v. State, 537 N.E.2d 21 (Ind. 1989). A jury may believe

       whomever they choose and disregard the testimony of witnesses they do not

       believe. Borden v. State, 272 Ind. 668, 400 N.E.2d 1368 (1980). When E.S. gave

       her statement to the detective, and was deposed by Shaw’s attorney, she

       confused the dates of the incidents, and she neglected to tell the detective about

       the third incident. At trial, however, her testimony was unequivocal. Shaw, in

       his statements to the detective, admitted that the oral sex incidents occurred.

       Shaw’s claims are merely a request for us to reweigh the evidence and judge the

       credibility of the witnesses, which we will not do. See Sandleben, 29 N.E.3d 126

       (Ind. Ct. App. 2015), trans. denied. We find that the evidence presented was

       sufficient to support Shaw’s convictions of child molesting and child

       solicitation. The judgment of the trial court is affirmed.


[19]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017   Page 8 of 9
May, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2204| March 22, 2017   Page 9 of 9
