MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              Jul 27 2015, 6:14 am
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                                   ATTORNEY FOR APPELLEE
Stanley L. Campbell                                      Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ricky B. Akins,                                          July 27, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1412-CR-439
        v.                                               Appeal from the Allen Superior
                                                         Court

State of Indiana,                                        Cause No. 02D05-1307-FA-29
Appellee-Plaintiff
                                                         The Honorable Frances Gull, Judge




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015              Page 1 of 9
[1]   Ricky Akins was convicted of three counts of Child Molesting, two as class A

      felonies 1 and one as a class C felony.2 On appeal, Akins challenges his

      convictions and presents two restated issues for our review. We raise a third issue

      sua sponte.

                        1. Was there sufficient evidence to sustain Akins’s convictions?
                        2. Did the trial court abuse its discretion when it admitted the
                           testimony from the sexual assault nurse?
                        3. Did the trial court violate the double jeopardy clause of the
                           Indiana Constitution?


[2]   We affirm in part, reverse in part, and remand.

[3]   The facts favorable to the convictions are as follows. Jody Boisseau met Akins at

      work and the two began dating. Late in December of 2012, Akins moved in with

      Boisseau and her six-year-old daughter, J.H.3 When Boisseau worked third shift,

      she would leave J.H. with Madeline Hill and Madeline’s twelve-year-old daughter

      Y.H. On two occasions, Boisseau left J.H. with Akins so she could go to the bar

      with a friend. On one of those occasions, Akins sexually abused six-year-old J.H.




         1
          The version of the governing statute, i.e., Ind. Code Ann. § 35-42-4-3 (West, Westlaw 2013), in effect at the
         time this offense was committed classified it as a class A felony. This statute has since been revised and in its
         current form reclassifies this as a Level 1 felony. See I.C. § 35-42-4-3 (West, Westlaw current with all 2015
         First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new
         classification, however, applies only to offenses committed on or after July 1, 2014. See id. Accordingly, this
         offense retains the former classification.
         2
             Under the new statute, this would be a Level 4 felony.
         3
             J.H. was born on October 13, 2006.


         Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015                    Page 2 of 9
[4]   On the night in question, J.H. built a fort in her bedroom with blankets and

      pillows. She placed stuffed animals, pillows, blankets, and a night light inside of

      the fort. J.H. was awakened from her sleep when Akins opened the door and

      entered her bedroom. Akins knelt down to the ground, where J.H. was sleeping,

      pulled up her night gown, and removed her underwear. Akins touched, licked,

      and put his finger inside of her sexual organ. J.H. said the touch felt “weird”; “I

      moved my legs a little he [Akins] kept undoing it.” Transcript at 47-48. Akins

      quickly left J.H.’s room when he heard Boisseau open the front door. Boisseau

      then went to J.H.’s room and kissed her goodnight. J.H. immediately told her

      mother Akins had touched her “private”,4 but Boisseau did not believe her

      daughter. Id. at 44. Two or three weeks later, J.H. told Y.H. and Madeline about

      the incident. Madeline called the police to inform them of the incident.

[5]   On July 15, 2013, the State charged Akins with two counts of class A felony child

      molesting (Counts I and II) and a third count of class C felony child molesting

      (Count III). Count I was based on the allegation that Akins placed his mouth on

      or in J.H.’s female organ. Count II alleged Akins committed sexual deviate

      conduct by placing his finger inside J.H.’s female organ. Count III alleged that

      Akins fondled and/or touched J.H.’s female organ. On October 16, 2014, the jury

      found Akins guilty as charged. Akins was sentenced to an aggregate term of forty

      years.




         4
             J.H. indicated that her “private” is something she uses to “go pee.” Transcript at 46.


         Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015           Page 3 of 9
                                                            1.

[6]   Akins contends the evidence is insufficient to support his child molesting

      convictions for the two class A felonies.5 When reviewing the sufficiency of the

      evidence needed to support a criminal conviction, we neither reweigh evidence nor

      judge witness credibility. Henley v. State, 881 N.E.2d 639 (Ind. 2008). “We

      consider only the evidence supporting the judgment and any reasonable inferences

      that can be drawn from such evidence.” Id. at 652. “[This court] will affirm

      unless no reasonable fact-finder could have found the crime proven beyond a

      reasonable doubt.” Dumes v. State, 23 N.E.3d 798, 801 (Ind. Ct. App. 2014).


[7]   Akins argues J.H.’s testimony is not credible. He notes that Boisseau did not

      believe her daughter at the time of the incident. Boisseau testified that she believed

      her daughter was in a “lying phase” and J.H. was upset because Boisseau had

      punished her by taking away her electronics. Transcript at 213.


[8]   To support the convictions for Counts I and II as alleged, the State had to prove

      Akins was over twenty-one years of age and knowingly or intentionally performed

      deviate conduct on J.H. when the child was under fourteen years of age. See I.C. §

      35-42-4-3. Deviate sexual conduct involves a sex organ of one person and the

      mouth of another, or the penetration of a sex organ by an object. Ind. Code Ann. §




         5
           Akins asserts a double jeopardy argument with regards to Count III. We will address this as a separate
         issue.

         Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015                Page 4 of 9
      35-41-1-9 (West, Westlaw current with all 2015 First Regular Session of the 119th

      General Assembly legislation effective through June 28, 2015).

[9]   Evidence established that Akins was forty-five at the time, and J.H. was six years

      old. J.H. testified that Akins rubbed his finger inside and outside her “private” and

      he stuck his tongue inside her “private.” Transcript at 46. Her testimony was

      consistent with her prior statements to her mother, babysitter, and the police

      officer. “A conviction of child molesting may rest on the uncorroborated

      testimony of the victim.” Young v. State, 973 N.E.2d 1225, 1227 (Ind. Ct. App.

      2012). Accordingly, we reject Akins’s invitation to reweigh the evidence and to

      determine the credibility of the witnesses. The State presented sufficient evidence

      to support the child molesting convictions.

                                                         2.

[10] Akins   contends the trial court abused its discretion when it admitted testimony

      from the sexual assault nurse who examined J.H. The nurse testified regarding the

      statements made by J.H. during the course of the examination which were

      consistent with her trial testimony. Akins argues the nurse’s testimony is

      inadmissible hearsay.

[11] A   trial court has broad discretion to admit or exclude evidence. Blount v. State, 22

      N.E.3d 559 (Ind. 2014). We will not reverse such a decision unless it is clearly

      contrary to the logic and effect of the facts and circumstances of the case or

      misinterprets the law. VanPatten v. State, 986 N.E.2d 255 (Ind. 2013).



         Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015   Page 5 of 9
[12] A   hearsay statement is one “other than one made by the declarant while testifying

       at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

       Ind. Evidence Rule 801(c). Hearsay statements are not admissible, except

       pursuant to certain exceptions within the Rules of Evidence. Evid. R. 802.

[13]   One such exception generally permits statements made for the purpose of medical

       diagnosis or treatment to be admitted into evidence, even when the declarant is

       available. Evid. Rule 803(4). To fit in with this exception, the statements must be

       “made by persons who are seeking medical diagnosis or treatment and describing

       medical history, or past or present symptoms, pain, or sensations, or the inception

       or general character of the cause or external source thereof insofar as reasonably

       pertinent to diagnosis or treatment.” VanPatten v. State 986 N.E.2d at 260. Rule

       803(4)’s exception is grounded in the belief that people are unlikely to lie to their

       doctors because doing so might jeopardize their opportunity to be made well.

       VanPatten v. State 986 N.E.2d 255.


[14] The   court has established a two-step analysis for admission of evidence under Rule

       803(4): first, “is the declarant motivated to provide truthful information in order to

       promote diagnosis and treatment,” and second, “is the content of the statement

       such that an expert in the field would reasonably rely on it in rendering diagnosis

       or treatment.” Id. at 255. “Statements made by victims of sexual assault or

       molestation about the nature of the assault or abuse—even those identifying the

       perpetrator—generally satisfy the second [step] of the analysis because they assist

       medical providers in recommending potential treatment for sexually transmitted



          Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015   Page 6 of 9
       disease, pregnancy testing, psychological counseling, and discharge instructions.”

       Id. at 260.


[15]   In VanPatten, the court recognized that the first factor is satisfied by the

       assumption individuals do not lie to their doctors because they want to receive the

       proper medical treatment. The presumption is not the same, however, in cases

       where the declarant is a child. In such cases, the court requires a “more robust

       evidentiary foundation.” Id. at 257.


[16] Where     the declarant is a child, there must be evidence that the child understood

       the professional’s role. “Such young children may not understand the nature of the

       examination, the function of the examiner, and may not necessarily make the

       necessary link between truthful responses and accurate medical treatment.” Id. at

       261. Accordingly, “there must be evidence that the declarant understood the

       professional’s role in order to trigger the motivation to provide truthful

       information.” Id. Here, J.H. expressly testified that she understood the nurse’s role

       was to make sure she was well and that she knew the importance of being truthful.

       Both factors were established in this case. Thus, the challenged testimony was

       properly admitted as an exception to the hearsay rule.

                                                            3.

[17] Although        not directly, Akins appears to contend that Count III, his class C felony

       conviction, should be set aside on double jeopardy grounds. Although his slender

       argument is not well developed and risks waiver, we choose to address it on the

       merits. See White v. State, 25 N.E.3d 107, 130 (Ind. Ct. App. 2014). (“[w]e raise the

          Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015   Page 7 of 9
   issue of double jeopardy sua sponte because a double jeopardy violation, if shown,

   implicates fundamental rights”).

[18] A   conviction violates the double jeopardy clause of the Indiana Constitution “if,

   with respect to either the statutory elements of the challenged crimes or the actual

   evidence used to convict, the essential elements of one challenged offense also

   establish the essential elements of another challenged offense.” Id. Akins contends

   the actual evidence used to convict him of Count II and Count III was the same.

   “Dual convictions cannot stand if a defendant demonstrate[s] a reasonable

   possibility that the evidentiary facts used by the fact-finder to establish elements of

   one offense may have also been used to establish the essential elements of a second

   challenged offense.” Davies v. State, 730 N.E.2d 726, 741 (Ind. Ct. App. 2000).


[19] Count   III, child molesting by fondling, was established by J.H.’s testimony that

   Akins rubbed her vaginal area both on the outside and the inside. Count II, child

   molesting by digital penetration, was established by this same testimony. Further,

   it is apparent that Counts II and III were committed within moments of each other

   during the same incident. In Davies v. State, the court found a double jeopardy

   violation reasoning, “[A] single incident of molestation without independent

   evidence of fondling could not support both molesting by criminal deviate conduct

   and molesting by fondling. Under these facts the fondling was part of the

   penetration.” Id. at 741. Cf. Sloan v. State, 947 N.E. 2d 917 (2011) (finding no

   double jeopardy violation because although the act occurred together, there was

   independent and distinct evidence of both penetration of vagina and fondling of

   breast). Under these circumstances there was a double jeopardy violation because

         Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015   Page 8 of 9
   Akins was convicted of child molesting on two counts based upon the same act

   without independent evidence of deviate conduct and fondling. Therefore, we

   remand this case to set aside the class C felony conviction.


[20] Judgment   affirmed in part, reversed in part, and remanded.

   Baker, J., and Najam, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015   Page 9 of 9
