Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                           Mar 08 2013, 8:33 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                               GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                ANDREW FALK
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CURTIS PORTER,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A05-1204-CR-191
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Carol Orbison, Judge
                           Cause No. 49G22-1011-FA-85389


                                      March 8, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                 STATEMENT OF THE CASE

       Appellant-Defendant, Curtis Porter (Porter), appeals his conviction and sentence

for Count II, child molesting, a Class A felony, Ind. Code § 35-42-4-3(a)(1) and his

adjudication as an habitual offender, I.C. § 35-50-2-8.

       We affirm.

                                         ISSUES

       Porter raises three issues on appeal, which we restate as follows:

       (1) Whether the State proved beyond a reasonable doubt that Porter committed

            child molesting;

       (2) Whether the trial court abused its discretion when it gave Preliminary

            Instruction No. 3; and

       (3) Whether Porter’s sentence is inappropriate in light of the nature of his offense

            and his character.

                         FACTS AND PROCEDURAL HISTORY

        On November 2, 2010, Porter met Shalonda Montgomery (Mother) at a friend’s

house. Mother and Porter are cousins and Porter is a couple of years older. That

evening, Porter, his girlfriend, and Mother left in Porter’s vehicle. On their way to

Mother’s home, police stopped them and both Mother and Porter’s girlfriend were

arrested.



                                             2
      Mother’s two children, daughter, T.M., age twelve, and son, D.S., age fifteen,

were at her home. Porter visited their home later in the evening and told T.M. that the

police “have your momma.” (Transcript p. 148). T.M. had not seen Porter for some time

but had known him for a couple of years. Porter told T.M. to come with him to find

Mother and he told D.S. to remain at home. T.M. and Porter traveled to a nearby

abandoned house and observed a police paddy wagon but did not see Mother. Porter and

T.M. returned to Mother’s home.

      Approximately twenty minutes later, Porter told T.M. to come with him to look for

Mother again. As before, Porter told D.S. to remain at the home, but this time asked for

and took his cell phone. T.M. took her cell phone with her, and both she and Porter got

into Mother’s car. They traveled to a parking lot next to the house and parked. Porter

took T.M.’s cell phone and laid on top of her. T.M. tried to push him off but was

unsuccessful. Porter pulled T.M.’s pants down to her ankles and inserted his finger in her

vagina. Porter then performed oral sex on her. T.M. cried and struggled during the

event, which lasted for approximately twenty minutes. Porter took her home afterward.

      On November 3, 2010, Mother returned home around 5:00 or 5:30 a.m. She found

T.M. asleep on the couch and Porter sitting on the stairs. Later that morning, Mother left

for work and T.M. went to school. At school, T.M. saw the school nurse and informed

her what Porter had done. The school nurse called Mother who called the police. Mother

returned home and saw Porter. Porter tried to ask what was wrong but Mother was

crying. He ran out of the house and down an alley. T.M. was taken to Riley Hospital for

                                            3
an examination and was interviewed by police. T.M. refused a vaginal swab because it

hurt and told police that Porter had put his finger in her vagina. Police examined

Mother’s automobile but found no bodily fluids. Porter was later apprehended.

       On November 10, 2010, the State filed an Information charging Porter with

Counts I and II, child molesting, Class A felonies, I.C. §35-42-4-3(a)(1); and Count III,

child molesting, a Class C felony, I.C. § 35-42-4-2(b). On March 15, 2011, the State

filed an additional Information alleging that Porter was an habitual offender, I.C. § 35-50-

2-8.

       On February 27 and 28, 2012, a bifurcated jury trial was held. Prior to trial,

Porter’s counsel objected to the trial court’s Preliminary Instruction No. 3, which he

alleged violated Article 1, Section 19 of the Indiana Constitution. Porter’s counsel noted

that the instruction reproduced Indiana Pattern Jury Instruction No. 15.11, which was to

be used in bifurcated trials. The trial court denied the objection tendered the instruction.

The jury found Porter not guilty on Count I but found him guilty as charged on Counts II

and III. Subsequently, the jury determined that Porter was an habitual offender. On

March 28, 2012, the trial court sentenced Porter, merging his conviction of Count III into

Count II.   It sentenced Porter to forty years’ at the Department of Correction and

suspended five years to probation. The trial court enhanced Porter’s sentence on Count II

by thirty years because of his adjudication as an habitual offender, resulting in an

aggregate sentence of seventy years.

       Porter now appeals. Additional facts will be provided as necessary.

                                             4
                              DISCUSSION AND DECISION

                                I. Sufficiency of the Evidence

       Porter first contends that the evidence presented at trial was insufficient to support

his conviction. Specifically, Porter argues that (1) the State failed to prove his age

beyond a reasonable doubt; and (2) the State failed to prove beyond a reasonable doubt

that he penetrated T.M.’s vagina with his finger.

                                   A. Standard of Review

       Our standard of review for a sufficiency of the evidence claim is well-settled. In

reviewing sufficiency of the evidence claims, we will not reweigh the evidence or assess

the credibility of the witnesses. Altes v. State, 822 N.E.2d 1116, 1121 (Ind. Ct. App.

2005), trans. denied. We will consider only the evidence most favorable to the judgment,

together with all reasonable and logical inferences to be drawn therefrom. Id. The

conviction will be affirmed if there is substantial evidence of probative value to support

the conviction of the trier-of-fact. Id.

B. Age of the Offender

       Porter contends that the State failed to prove beyond a reasonable doubt that he

was at least twenty-one years of age as alleged in the Information. Class A felony child

molesting consists of: (1) a person over age twenty-one who, (2) with a child under

fourteen years of age, and (3) performs sexual intercourse or deviate sexual conduct. See

I.C. § 35-42-4-3(a)(1). The age of the defendant is an element of the crime. See

Carpenter v. State, 786 N.E.2d 696, 705 (Ind. 2003).

                                              5
      The age of the defendant may be proved by circumstantial evidence. Staton v.

State, 853 N.E.2d 470, 471 (Ind. 2006). Opinion testimony may be used to establish a

defendant’s age. Thompson v. State, 386 N.E.2d 682, 684 (Ind. 1979). Finally, jurors

may apply their common sense to the record to infer a defendant’s age. See Staton, 853

N.E.2d at 471.

      Porter argues that the State provided insufficient circumstantial evidence to prove

his age beyond a reasonable doubt. We disagree. Although the State failed to elicit

direct proof of Porter’s age, other evidence sufficed to prove this element beyond a

reasonable doubt.   Mother testified that Porter was a few years older than her and had

known each other since they were children. She testified that her son D.S. was fifteen

years old at the time of the incident. If D.S. was fifteen at the time of the crime, even

assuming that Mother was six when she gave birth to D.S., this would make Mother

twenty-one at the time of the crime. Porter, a few years older, would at least be twenty-

one years old. In sum, we conclude that circumstantial evidence, Mother’s testimony,

and the juror’s application of common sense to the record sufficed to establish Porter’s

age beyond a reasonable doubt. See Carpenter, 786 N.E.2d at 705.

                                    C. Penetration

      Porter next contends that there was no evidence of penetration to support his

conviction for child molesting. Specifically, Porter argues that T.M. did not observe him

penetrating her vagina.   Further, he asserts that no physical evidence corroborated



                                           6
penetration since T.M. refused a vaginal swab and no bodily fluids were found in the

Mother’s automobile.

       Proof of the slight penetration is sufficient to sustain a conviction for child

molesting. Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996). Penetration may be

inferred from circumstantial evidence. See id. Further, the uncorroborated testimony of a

victim is sufficient to find a defendant guilty of child molesting. Baber v. State, 870

N.E.2d 486, 490 (Ind. Ct. App. 2007).

       Here, T.M. testified that Porter pulled her pants down and “stuck his finger in me.”

(Tr. p. 159). She testified that Porter stuck his finger in her “private” and later clarified

that her “private” referred to her vagina. (Tr. p. 159). Although she testified that she did

not look at him because she was crying, we also note that T.M. testified that Porter laid

on top of her during the act. A conviction for child molesting will be sustained when it is

apparent from the circumstances and the victim’s limited vocabulary that the victim

described an act which involved penetration of the sex organ. Short v. State, 564 N.E.2d

553, 558 (Ind. Ct. App. 1991). We conclude that this evidence is sufficient proof for the

jury to conclude beyond a reasonable doubt that Porter penetrated T.M. See Young v.

State, 973 N.E.2d 1225, 1226-227 (Ind. Ct. App. 2012), reh’g denied.

       Porter also argues that the lack of corroborating physical evidence undercuts

T.M.’s testimony. We note that although a nurse at Riley Hospital testified that T.M. did

not present any vaginal area injuries, the nurse also testified that eighty-five to ninety-five

percent of sexually assaulted children have normal, injury-free exams. Thus, Porter’s

                                              7
challenge is merely a request to reweigh the evidence and determine witness credibility,

which we will not do. See Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We

therefore conclude that the State provided evidence sufficient to prove Porter’s age and

his penetration of T.M. beyond a reasonable doubt.1

                                         II. Jury Instruction

        Porter next challenges the trial court’s Preliminary Jury Instruction No. 3, which

instructed the jury on its determination of the law and the facts. Specifically, he argues

that Preliminary Instruction No. 3 nullified the jury’s right to determine the law and the

facts during the habitual offender phase of his trial. We disagree.

        The purpose of an instruction is to inform the jury of the law applicable to the

facts without misleading the jury and to enable it to comprehend the case clearly and

arrive at a just, fair, and correct verdict. Disbro v. State, 791 N.E.2d 774, 776 (Ind. Ct.

App. 2003), trans. denied. Instructing the jury lies within the sole discretion of the trial

court. McBride v. State, 785 N.E.2d 312, 316 (Ind. Ct. App. 2003), trans. denied.                      An

abuse of discretion will only be found when the instruction is erroneous, or where the

instructions, taken as a whole, misstate the law or otherwise mislead the jury. Disbro,

791 N.E.2d at 777. Error in a particular instruction will not result in reversal unless the

entire jury charge misleads the jury as to the law in the case. McBride, 785 N.E.2d at


1
 Porter also contends that the evidence only sufficed to convict him of Count III, Class C felony child
molesting, and thus remand is required for resentencing. This argument assumes that we would conclude
that the State did not prove either Porter’s age or that he digitally penetrated T.M. We conclude otherwise
and therefore need not address this argument.

                                                    8
316. Before a defendant is entitled to a reversal, he must affirmatively show that the

instruction error prejudiced his substantial rights. Id.

       Article 1, Section 19 of the Indiana Constitution provides, “[i]n all criminal cases

whatever, the jury shall have the right to determine the law and the facts.” Ind. Code §

35-37-2-2(5) requires the trial court to instruct the jury “that they are the exclusive judges

of all questions of fact and that they have a right, also, to determine the law.” Article 1,

Section 19 is applicable during habitual offender proceedings, and thus the jury has the

power in such circumstances to determine both the law and the facts. Parker v. State,

698 N.E.2d 737, 742 (Ind. 1998).

       Preliminary Instruction No. 3 stated as follows:

       Under the Constitution of Indiana, the jury is given the right to decide both
       the law and the facts. In fulfilling this duty, you are to apply the law as you
       actually find it, and you are not to disregard it for any reason.

       The instructions of the court are your best source in determining what the
       law is.

(Appellant’s App. p. 70). This language reproduces the language of Indiana Pattern Jury

Instruction No. 15.11—Criminal (3d ed. Supp. 2012).

       On appeal, Porter argues that “[t]he additional language in [Preliminary

Instruction No. 3] was not a correct statement of the law for the habitual offender phase

and had the potential to mislead the jury during the habitual phase of the jury.”

(Appellant’s Br. p. 19). However, as Porter’s counsel noted prior to trial, Preliminary

Instruction No. 3 in fact reproduced the pattern jury instruction to be used during the

second stage of a bifurcated trial, which in this case would have been the habitual
                                          9
offender phase of Porter’s trial.    The preferred practice is to use the pattern jury

instructions. Gravens v. State, 836 N.E.2d 490, 494 (Ind. Ct. App. 2005), trans. denied.

Because Preliminary Instruction No. 3 reproduced Pattern Jury Instruction No. 15.11

verbatim, we cannot agree with Porter that the trial court’s use of this instruction during

the guilt phase misstated the law and compelled the jury to find him to be an habitual

offender. We therefore conclude that the trial court did not abuse its discretion and

properly instructed the jury.

                                      II. Sentencing

       Porter argues that his aggregate seventy-year sentence is inappropriate in light of

the nature of the offense and his character. Specifically, he contends that his sentence is

“unduly harsh” and asks us to revise his sentence on the underlying felony to the advisory

sentence. (Appellant’s Br. p. 21). He asserts that the following factors justify a revised

sentence:    his actions constituted a single isolated incident; his act was neither

premeditated nor involved a weapon; and he did not employ excessive force on T.M.

       The Indiana Appellate Rules authorize revision of a sentence “if, after due

consideration of the trial court's decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender.” Ind.

Appellate Rule 7(B). “[A] defendant must persuade the appellate court that his or her

sentence has met this inappropriateness standard of review.” Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).



                                            10
       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).             Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and a myriad of other factors that come to light in a

given case. Id. at 1224.

       A person who commits a Class A felony child molesting shall be imprisoned for a

fixed term of between twenty and fifty years, with the advisory sentence being thirty

years. I.C. § 35-50-2-4. The court “shall” sentence a person found to be a habitual

offender to an additional fixed term that is “not less than” the advisory sentence for the

underlying offense, which in this case is thirty years, nor more than three times the

advisory sentence for the underlying offense.       I.C. § 35-50-2-8(h).    The sentence,

however, may not exceed thirty years. See I.C. § 35-50-2-8(h). Here, the trial court

sentenced Porter to forty years for child molesting and enhanced that by the mandatory

thirty-years for being a habitual offender.

       As for the nature of the offense, the State argued at trial that Porter violated

Mother’s trust. Mother had been arrested in the evening and her two minor children were

concerned about her. Porter was a cousin who had offered his assistance to find Mother.

Under these circumstances, we have little difficulty concluding that Porter should have

been someone for the family to depend on but instead violated their trust by his conduct.

                                              11
Although Porter argues that his crime was not premeditated, the evidence shows

otherwise: Porter took T.M. away from her home and took D.S.’s cell phone prior to

molesting T.M. While Porter asserts that his crime did not involve a weapon or excessive

force, we find these factors inapposite given that Porter is over six feet tall, weighs over

200 pounds, and his victim was twelve years of age.

       Regarding Porter’s character, we note, as did the trial court, his substantial

criminal history. Porter has six juvenile adjudications for conversion, burglary, theft,

disorderly conduct, resisting arrest, and battery resulting in serious bodily injury. In

addition to the three felony convictions used to find Porter to be an habitual offender,

Porter had amassed another felony conviction, six misdemeanor convictions, and been

arrested several other times. Porter had been given probation on four occasions but it was

revoked each time and he was on probation at the time of this offense. In sum, Porter’s

criminal history does not convince us that his character renders his sentence

inappropriate. Porter has thus failed to persuade us that his seventy-year sentence is

inappropriate.

                                     CONCLUSION

       Based on the foregoing, we conclude that there was sufficient evidence beyond a

reasonable doubt to convict Porter of child molesting. We also conclude that the trial

court did not abuse its discretion when it gave Preliminary Instruction No. 3. Finally,

Porter’s sentence is not inappropriate in light of the nature of the offense and his

character.

                                            12
     Affirmed.

BAKER, J. and BARNES, J. concur




                                  13
