MEMORANDUM DECISION                                                       FILED
                                                                     Dec 01 2016, 8:18 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                              CLERK
precedent or cited before any court except for the                    Indiana Supreme Court
                                                                         Court of Appeals
purpose of establishing the defense of res judicata,                       and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman                                 Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Albert Towne,                                            December 1, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1511-CR-1854
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Kurt M. Eisgruber,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 49G01-1405-FB-23673




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1854 | December 1, 2016       Page 1 of 7
                                          Statement of the Case
[1]   Albert Towne appeals his convictions of sexual misconduct with a minor, a
                             1                                                                  2
      Class B felony, and sexual misconduct with a minor, a Class C felony. We

      affirm.


                                                    Issue
[2]   The sole issue on appeal is whether the State presented sufficient evidence to

      support Towne’s convictions.


                                   Facts and Procedural History
[3]   The facts most favorable to the judgment follow. T.S. has been diagnosed with

      an intellectual disability as well as several behavioral disorders. Towne, who

      has also been diagnosed with an intellectual disability, engaged in sexual

      intercourse with T.S. and the touching of T.S. When T.S. later told her mother

      of the incident, an investigation commenced. Based upon the incident, Towne

      was charged with one count of sexual misconduct with a minor, as a Class B

      felony, and two counts of sexual misconduct with a minor as Class C felonies.

      Following a bench trial, the court found Towne guilty of the Class B felony and

      one Class C felony. The court sentenced him to six years with four years




      1
          Ind. Code § 35-42-4-9(a)(1) (2007).
      2
          Ind. Code § 35-42-4-9(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1854 | December 1, 2016       Page 2 of 7
      suspended and two years on home detention followed by two years of

      probation. Towne now appeals his convictions.


                                   Discussion and Decision
[4]   Towne contends the State failed to present sufficient evidence to support his

      convictions of sexual misconduct with a minor. When we review a challenge to

      the sufficiency of the evidence, we neither reweigh the evidence nor judge the

      credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126, 131 (Ind. Ct.

      App. 2015), trans. denied. Instead, we consider only the evidence most favorable

      to the judgment and any reasonable inferences drawn therefrom. Id. If there is

      substantial evidence of probative value from which a reasonable fact-finder

      could have found the defendant guilty beyond a reasonable doubt, the judgment

      will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).


[5]   Herein, in order to obtain a conviction for sexual misconduct with a minor as a

      Class B felony, the State must prove beyond a reasonable doubt that: (1)

      between June 1, 2013, and July 31, 2013, (2) Towne, a person at least twenty-

      one years of age, (3) performed or submitted to sexual intercourse (4) with T.S.,

      a child at least fourteen years of age but less than sixteen years of age. See Ind.

      Code § 35-42-4-9(a)(1); Appellant’s App. p. 25. In addition, to establish the

      offense of sexual misconduct with a minor as a Class C felony, the State must

      prove beyond a reasonable doubt that: (1) between June 1, 2013, and July 31,

      2013, (2) Towne, a person at least twenty-one years of age, (3) performed or

      submitted to any fondling or touching (4) with T.S., a child at least fourteen


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1854 | December 1, 2016   Page 3 of 7
      years of age but less than sixteen years of age, (5) with the intent to arouse or

      satisfy the sexual desires of Towne or T.S. See Ind. Code § 35-42-4-9(b)(1);

      Appellant’s App. pp. 25-26.


[6]   With regard to both of his convictions, Towne challenges the State’s evidence

      only as to T.S.’s age at the time the incident occurred. The gist of his argument

      is that one of the elements of both of these offenses is that the act occurred with

      a child at least fourteen years of age, and the State did not prove T.S. was at

      least fourteen years of age at the time of these incidents. Thus, he claims the

      State did not prove beyond a reasonable doubt all of the elements of the charged

      offenses of sexual misconduct with a minor as both a Class B and a C felony.


[7]   The evidence most favorable to the judgment established that the sexual

      misconduct occurred during June or July of 2013. T.S. was born on April 30,

      1999. When T.S. was having visitation with her father during the summer of

      2013, she played video games with Towne, who lived in an apartment across

      the hall. Towne, who was 26 at the time, has been diagnosed with an

      intellectual disability. On one occasion during the summer when T.S. was in

      Towne’s apartment, Towne engaged in sexual intercourse with T.S. and the

      touching of T.S.


[8]   T.S.’s mother testified that T.S. has been diagnosed with attention deficit

      disorder – impulsive type, mood disorder, attachment disorder, and an

      intellectual disability. She further testified that when T.S. was fourteen, she

      functioned at the level of an eight to ten-year-old, and, at the time of trial when


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1854 | December 1, 2016   Page 4 of 7
       T.S. was sixteen, she was functioning at a ten to twelve-year-old level. T.S.’s

       mother testified that T.S. told her about the incident in February 2014.


[9]    During her direct examination, T.S. was asked questions about what occurred

       with Towne in the summer of 2013. T.S. explained that, at some point during

       that summer, Towne’s “private area” touched her “private area,” and his hands

       were on her chest. Tr. pp. 27, 26. On cross-examination, T.S. testified, “I

       didn’t know what he did was very bad to me. I was only 13.” Id. at 36. And,

       in response to a question concerning a police officer she spoke to, T.S. testified,

       “Yes — I was only 13, yes — some blonde woman.” Id. at 37. In response to

       another question, T.S. testified, “I kept it a secret for a year until I was 14 years

       old.” Id. at 41. There were also several instances during T.S.’s testimony

       where she responded to a question with “I don’t know” or “I don’t remember.”

       Id. at 34, 37, 40, 41. She also stated things like, “I don’t know what you mean

       about that” and “I don’t know her name. I don’t even remember her and I

       don’t care.” Id. at 35, 37. At one point when asked if she remembered when

       something occurred, T.S. responded, “2014 — no, 2000 — I don’t know.” Id.

       at 37. At another juncture in her testimony, T.S. stated to defense counsel,

       “Where you going — I don’t know what you’re talking about. I don’t know. I

       don’t know what your name is and whoever you are I do not know what I’m —

       what you are talking about right now.” Id. at 40-41.


[10]   Circumstantial testimonial evidence can be sufficient to prove age. Hmurovic v.

       State, 43 N.E.3d 685, 687 (Ind. Ct. App. 2015). Although T.S. made statements

       on cross-examination about being thirteen at the time of this incident, the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1854 | December 1, 2016   Page 5 of 7
       witnesses all indicated that the incident occurred during the summer of 2013

       when T.S. had visitation with her father. Further, the uncontroverted evidence

       showed that T.S. was born on April 30, 1999, making her fourteen during the

       summer of 2013. In addition, T.S. was correct that she was fourteen when she

       reported the incident to her mother in February 2014, some nine months after it

       occurred.


[11]   The trial judge, as the factfinder, observed firsthand all of the witnesses as they

       testified, including T.S. As T.S. testified, the judge was able to take note of her

       demeanor and general aptitude. In addition, the trial court heard the testimony

       of T.S.’s mother regarding T.S.’s intellectual capacity. “It is difficult for

       children to remember specific dates, particularly when the incident is not

       immediately reported as is often the situation in child molesting cases.” Barger

       v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). We think this is especially true

       when the victim, although a teenager, has cognitive disabilities. It is the

       function of the trier of fact to resolve conflicts in testimony and to determine the

       weight of the evidence and the credibility of the witnesses. K.D. v. State, 754

       N.E.2d 36, 39 (Ind. Ct. App. 2001). We will not disturb the factfinder’s

       determination.


[12]   Assuming, arguendo, that the State’s evidence did not definitively prove that

       T.S. was fourteen at the time of these offenses, Towne’s convictions still stand.

       Where a victim’s age at the time of an offense was at or near the dividing line

       between classes of felonies such that the State could not prove definitively the

       victim’s age at the time of the molestation, it is appropriate to charge and

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1854 | December 1, 2016   Page 6 of 7
       convict the defendant with the lesser felony. Barger, 587 N.E.2d at 1307-08.

       Towne was charged with Class B and Class C felony sexual misconduct based

       upon T.S. being fourteen years of age but less than sixteen years of age. T.S.

       was clearly under the age of sixteen at the time of this misconduct; however, if

       T.S. was only thirteen as Towne argues, one of the two appropriate charges

       would have been a higher class felony — child molesting as a Class A felony

       and child molesting as a Class C felony, exposing him to a greater sentence if

       convicted. See Ind. Code § 35-42-4-3 (a)(1) and (b) (2007). Thus, given these

       circumstances, the State appropriately charged and convicted Towne of the

       lesser felony rather than no felony at all as Towne suggests. See, e.g., Barger, 587

       N.E.2d at 1306 (stating that, where State could not prove definitively whether

       victim was eleven years old or twelve years old at time of molestation, “[i]t is

       thus difficult to know whether Barger is guilty of a class D or a class C felony.

       We do not think it follows that Barger is guilty of no felony at all.”).


                                                Conclusion
[13]   For the reasons stated, we conclude the State presented sufficient evidence to

       support Towne’s convictions of sexual misconduct with a minor as a Class B

       felony and sexual misconduct with a minor as a Class C felony.


[14]   Affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1854 | December 1, 2016   Page 7 of 7
