Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                  Dec 03 2014, 8:39 am
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:

JOEL M. SCHUMM                                     GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   JESSE R. DRUM
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

S.L.,                                              )
                                                   )
        Appellant-Defendant,                       )
                                                   )
               vs.                                 )         No. 49A02-1406-JV-377
                                                   )
STATE OF INDIANA,                                  )
                                                   )
        Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Geoffrey Gaither, Magistrate
                             Cause No. 49D09-1401-JD-137


                                        December 3, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       S.L. appeals from his adjudication as a delinquent child for what would be the

offenses of Class B felony child molesting and Class C felony child molesting if committed

by an adult, challenging only the Class C felony child molesting adjudication. We affirm.

                                         ISSUES

       S.L. presents the following issues for our review:

       I.     Whether there is sufficient evidence to support S.L.’s adjudication for
              child molesting as a Class C felony.

       II.    Whether the continuing crime doctrine applies to these two allegations
              of child molesting.

                            FACTS AND PROCEDURAL HISTORY

       K.B. was four years old and living with his mother at the time the acts of child

molesting occurred. From July to September 2013, S.L.’s mother provided daycare for

K.B. and his sister while K.B.’s mother worked. S.L. is K.B.’s cousin and was thirteen

years old at the time of the offenses.

       The facts most favorable to the adjudication established that on one occasion S.L.

and K.B. were alone in S.L.’s room playing a video game. During that time, they talked

about “sucking wieners.” Tr. p. 33. S.L. pulled down K.B.’s pants and touched K.B.’s

penis with his hand. S.L. also “sucked on” K.B.’s penis with his mouth. Id. at 12-13.

       Sometime later, K.B.’s mother was looking through pictures and video clips on her

cell phone when she discovered a small video clip and picture of K.B. “trying to film his

private area.” Id. at 23. When K.B.’s mother asked him if anyone had ever touched him,

he disclosed to her what had happened. K.B.’s mother called K.B.’s doctor, who told her

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to take K.B. to the Center of Hope at Riley Hospital. K.B.’s mother took him there for an

examination.

       S.L. and his mother signed a juvenile rights waiver form after they had an

opportunity for a meaningful consultation about S.L.’s rights. Indianapolis Metropolitan

Police Detective Robert Chappell interviewed S.L. at the Child Advocacy Center. At first,

S.L. denied having any contact with K.B. at his house and denied being at home when K.B.

was there. S.L.’s story changed over the course of the interview, and he admitted that he

and K.B. had played video games in his room, and that they may have discussed “sucking

wieners.” Id. at 33. S.L. denied that anything happened beyond the conversation. While

being transported to the Juvenile Detention Center, S.L. continued to speak with Detective

Chappell, ultimately admitting that more had gone on than just the discussion.

       The State alleged that S.L. was a delinquent child for committing Class C felony

and Class B felony child molesting. On March 21, 2014, the juvenile court held a fact-

finding hearing and entered a true finding on both counts. At the subsequent disposition

hearing, the juvenile court placed S.L. on probation. S.L. now appeals the true finding of

child molesting as a Class C felony.

                                 DISCUSSION AND DECISION

                          I. SUFFICIENCY OF THE EVIDENCE

       S.L. contends that there is insufficient evidence to support the juvenile court’s true

finding of Class C felony child molesting. In particular, S.L. claims that the State failed to

prove beyond a reasonable doubt that S.L. touched K.B.’s penis with the intent to arouse

or satisfy his sexual desires.

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       “When the State seeks to have a juvenile adjudicated to be a delinquent for

committing an act which would be a crime if committed by an adult, the State must prove

every element of the crime beyond a reasonable doubt.” J.R.T. v. State, 783 N.E.2d 300,

302 (Ind. Ct. App. 2003), trans. denied. “Upon review of a juvenile adjudication, this court

will consider only the evidence and reasonable inferences supporting the judgment.” Id.

“We will neither reweigh the evidence nor judge witness credibility.” Id. “If there is

substantial evidence of probative value from which a reasonable trier of fact could conclude

that the respondent was guilty beyond a reasonable doubt, we will affirm the adjudication.”

Id.

       In order to establish that S.L. committed what would be child molesting as a Class

C felony if committed by an adult, the State had to establish that S.L. performed or

submitted to fondling or touching with K.B., who was younger than fourteen years old,

with the intent to arouse or satisfy S.L.’s sexual desires. Ind. Code §35-42-4-3(b) (2007).

S.L. admits that he touched K.B.’s penis, but challenges the sufficiency of the evidence

that he did so while intending to satisfy his sexual desires.

       K.B. testified as follows about the facts supporting the Class C felony child

molesting adjudication:

       Q:     So, he touched your penis. What did he touch it with?
       A:     His hand.
       Q:     His hand? And that’s, is the same hand you pointed here? His hand?
       A:     Yeah.

Tr. p. 12. S.L. contends that the touching in this situation was too brief to establish the

intent required to commit the offense.


                                              4
       “The intent to arouse or satisfy the sexual desires of the child or the older person

may be established by circumstantial evidence and may be inferred ‘from the actor’s

conduct and the natural and usual sequence to which such conduct usually points.’”

Kanady v. State, 810 N.E.2d 1068, 1069-70 (Ind. Ct. App. 2004) (quoting Nuerge v. State,

677 N.E.2d 1043, 1048 (Ind. Ct. App. 1997)). “Mere touching alone is not sufficient to

constitute the crime of child molesting.” J.H. v. State, 655 N.E.2d 624, 625 (Ind. Ct. App.

1995) (citing Markiton v. State, 236 Ind. 232, 235-36, 139 N.E.2d 440, 441 (1957)), trans.

denied.

       In J.H., a case cited by S.L. in support of his argument, we reversed a true finding

for Class C felony child molesting because the evidence of the intent to arouse or satisfy

sexual desires was insufficient. We stated the following in explanation of our decision:

       However, there is no natural consequence associated with a twelve-year-old
       girl flicking little boys on the penis hard enough to hurt them. It is certainly
       mean, and it might constitute battery, but it alone is insufficient to amount to
       child molesting.

655 N.E.2d at 626.

       In the present case, S.L. argues that the touching was so brief, the evidence is

insufficient to support an inference that he touched K.B. with the intent to arouse or satisfy

his sexual desires. However, as the State notes in its brief, although K.B.’s testimony about

the touching was brief, that does not necessarily lead to the conclusion that the touching

itself was brief. Further, any argument about the brevity of K.B.’s testimony amounts to

an invitation for this court to reweigh the evidence, a task we are not permitted to undertake.

J.R.T., 783 N.E.2d at 302. “The uncorroborated testimony of one witness may be sufficient


                                              5
by itself to sustain an adjudication of delinquency on appeal.” D.W. v. State, 903 N.E.2d

966, 968 (Ind. Ct. App. 2009), trans. denied.

       S.L. also cites to T.G. v. State, 3 N.E.3d 19 (Ind. Ct. App. 2014), trans. denied, and

J.L. v. State, 5 N.E.3d 431 (Ind. Ct. App. 2014), in support of reversal of his adjudication.

However, those cases tend to support S.L.’s adjudication instead. In T.G., we noted the

age difference between the juvenile, who was eleven years old, and the victim, who was

six years old. “‘[A]ge differential is an important factor that may and should be considered’

when determining a minor’s criminal liability under a statute proscribing lewd or lascivious

conduct with a child under the age of sixteen.” C.D.H. v. State, 860 N.E.2d 608, 612 (Ind.

Ct. App. 2007) (quoting In re P.M., 156 Vt. 303, 592 A.2d 862, 864 (1991)), trans. denied.

       In J.L., a twelve-year-old juvenile asked the six-year-old victim if he wanted “to

have a gay party,” to which the six-year-old victim declined. 5 N.E.3d at 443. The twelve-

year-old persisted in his requests, ultimately squeezing the victim’s penis over his clothing,

and asking him if he enjoyed the contact. We held that the circumstances were such that it

was reasonable to infer an intent to arouse or satisfy the juvenile’s sexual desires. Id. at

444.

       In the present case, thirteen-year-old S.L. touched the penis of his cousin, four-year-

old K.B., after the two had discussed “sucking wieners.” Tr. p. 33. S.L. pulled down

K.B.’s pants before touching K.B.’s penis. After speaking with Detective Chappell, S.L.

first denied being home with K.B., then admitted he was home. S.L. first denied that

anything more than talk occurred, but later admitted that maybe more went on between

S.L. and K.B. This evidence is sufficient to support the inference that S.L. touched K.B.

                                              6
with the intent to arouse or satisfy his sexual desires.

                          II. CONTINUING CRIME DOCTRINE

       S.L. contends that the acts of touching K.B.’s penis and sucking on K.B.’s penis

were so compressed in time, place, and purpose that his adjudication for the Class C felony

offense must be vacated. Under the continuing crime doctrine, “‘actions that are sufficient

in themselves to constitute separate criminal offenses may be so compressed in terms of

time, place, singleness of purpose, and continuity of action as to constitute a single

transaction.’” Anderson v. State, 15 N.E.3d 147, 149 (Ind. Ct. App. 2014) (quoting Riehle

v. State, 823 N.E.2d 237, 296 (Ind. Ct. App. 2005), trans. denied)). “[T]he continuing

crime doctrine reflects a category of Indiana’s prohibition against double jeopardy.”

Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010). “[W]hile Indiana’s double

jeopardy clause prohibits convicting a defendant of two or more distinct chargeable crimes

when they constitute the ‘same offense’ under Richardson, it also prohibits convicting a

defendant multiple times for the same continuous offense.” Id. at 736-37.

       In Chavez v. State, 988 N.E.2d 1226 (Ind. Ct. App. 2013), trans. denied, a case cited

by S.L., we reversed three of Chavez’s convictions for Class C felony child molesting

applying the continuing crime doctrine. On one occasion, Chavez kissed the victim on the

mouth, then inserted his tongue into her mouth, and while doing so, put his hand under her

shirt and touched her breast. On another occasion later that day, Chavez kissed the victim

on the mouth, inserted his tongue in her mouth, and while doing so, put his hand over the

victim’s clothes on her vagina. We found that the conduct occurring in each of the two

situations was so compressed in time, place, and purpose under the continuing crime

                                               7
doctrine there were two single transactions and three of the convictions had to be vacated.

988 N.E.2d at 1229-30.

      In Chavez, we distinguished Firestone v. State, 838 N.E.2d 468 (Ind. Ct. App.

2005), a case in which we found that Firestone’s convictions for rape and criminal deviate

conduct did not run afoul of the continuing crime doctrine. In that case, the defendant

forced his penis inside the victim’s vagina and then forced the victim to perform fellatio

on him. We held that “[t]he continuity of the actions does not negate the fact that they

were completely different sexual acts committed at different times.” Id. at 472.

      The present adjudication shares similarities with Firestone. Although there was

arguably a continuity of the actions, the act of touching K.B.’s penis was separate and

completely different from the Class B felony offense. We conclude that the continuing

crime doctrine does not apply here.

                                      CONCLUSION

      In light of the above, we affirm the trial court’s decision.

      Affirmed.

      BAKER, J., and ROBB, J., concur.




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