MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jun 03 2020, 11:09 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Denise L. Turner                                         Myriam Serrano
DTurner Legal LLC                                        Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Hayden Nix,                                              June 3, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2300
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable Cody B. Coombs,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         30C01-1712-F3-2637



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020                 Page 1 of 13
[1]   Hayden Nix appeals his convictions for sexual misconduct with a minor as

      level 5 felonies. He asserts the evidence is insufficient to sustain his convictions

      and his sentence is inappropriate.


                                      Facts and Procedural History

[2]   At some point, Nix, who was born on September 2, 1998, and E.L., who was

      born on February 24, 2003, were at a party. Nix asked her what grade she was

      in, E.L. said she was a freshman, and Nix said: “dang you guys are young.”

      Transcript Volume III at 44. Nix told E.L. that he was seventeen, but she later

      learned that was incorrect.


[3]   On October 19, 2017, Nix left a party with three other males and picked up

      E.L. around 4:00 a.m. E.L. thought Nix was taking her to a party. Nix

      dropped off two of the males and said there was no reason to go to the party.

      The other male suggested going to “this place where there were hay bales,” and

      Nix drove them to “an area that you could park the car for farmers or

      electricians” near New Palestine. Id. at 19, 21.


[4]   Nix kissed E.L. and began “feeling [her] up.” Id. at 21. At some point Nix

      moved from the driver’s seat to the passenger side with E.L. and positioned

      himself on top of her. He pulled down her pants and underwear, touched her

      vagina with his hand, “finger[ed]” her, and “then it felt like – like somebody

      had taken their elbow” and was “sticking it into [her] vagina because it was

      very painful.” Id. at 21-22. E.L. felt like it was an elbow because it “was so like

      large and it just had felt like” her vagina was being pushed open. Id. at 29. Nix


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 2 of 13
      held on to her hips, his legs were straight, and he “was thrusting in and out” of

      her “vagina.” Id. at 31, 45. E.L. realized what was happening, did not know

      what to do, and “was just frozen.” Id. at 30. During this time, the other male

      was intoxicated and unconscious in the backseat.


[5]   After Nix stopped, E.L. pulled up her pants, and Nix asked her if she enjoyed it

      and showed her a clip from Family Guy on his phone for probably five minutes.

      E.L. was “really shocked” and thought she was going to vomit. Id. at 33. Nix

      drove E.L. home, and she felt disgusting and dirty, took a shower, washed all of

      her clothes, and went to bed.


[6]   In the following days, E.L.’s vagina was painful sometimes when she would

      walk or sit down. That weekend, E.L. told her sister she was raped, said that

      she did not want her to tell anybody, and asked her to keep it secret. On

      November 15, 2017, E.L.’s sister told E.L. she needed to tell her parents, and

      E.L. did so. That same day, E.L.’s father called the police.


[7]   On December 21, 2017, the State charged Nix with Count I, rape as a level 3

      felony, Count II, sexual misconduct with a minor as a level 5 felony alleging

      “sexual intercourse,” and Count III, sexual misconduct with a minor as a level

      5 felony alleging “other sexual conduct.” Appellant’s Appendix Volume II at

      20.


[8]   At trial, E.L. testified to the foregoing. The jury found Nix not guilty of Count

      I, rape as a level 3 felony, and guilty of the two counts of sexual misconduct

      with a minor as level 5 felonies under Counts II and III. At the sentencing

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 3 of 13
      hearing, E.L. and her mother testified regarding the impact of the offenses. The

      court stated:


              Mr. Nix has a – a significant criminal history and it’s not just a
              significant criminal history you’re a 21 year old male this offense
              occurred when you were it looks like you were just over 18 years
              old and it is a significant criminal history in sexual behavior and I
              think the Presentence Investigation Report is correct is that you
              exhibit a lot of predatory behaviors. Specifically sexual predatory
              behaviors. Um the Court will also find a aggravating factor uh
              that Mr. Nix has violation the conditions of . . . his bond in
              another matter.


      Transcript Volume IV at 5. The court found no mitigating factors. It also

      stated: “[A]s a sexual predator you are a danger to the Community and your

      attorney asks what – what does a significant sentence do? What it does is it

      protects the Community . . . .” Id. at 6. The court sentenced Nix to four years

      for Count II and three years for Count III and ordered the sentences to be

      served consecutively for an aggregate sentence of seven years. The court

      ordered the sentences to run consecutive to cause numbers 30D01-1712-F3-

      2636 (“Cause No. 2636”) and 30C01-1709-F5-1943 (“Cause No. 1943”).


                                                   Discussion

                                                         I.


[9]   The first issue is whether the evidence is sufficient to sustain Nix’s convictions.

      Nix contends the evidence is insufficient to sustain his conviction under Count

      II because the State failed to present evidence that he penetrated E.L.’s vagina

      with his penis, and as to his conviction under Count III, the evidence is
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 4 of 13
       insufficient because E.L. testified that he did not insert his fingers into her

       vagina and the State presented no medical evidence to demonstrate penetration.


[10]   When reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

       817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

       inferences therefrom that support the verdict. Id. The conviction will be

       affirmed if there exists evidence of probative value from which a reasonable jury

       could find the defendant guilty beyond a reasonable doubt. Id.


[11]   The offense of sexual misconduct with a minor is governed by Ind. Code § 35-

       42-4-9, which at the time of the offenses provided that “[a] person at least

       eighteen (18) years of age who, with a child at least fourteen (14) years of age

       but less than sixteen (16) years of age, performs or submits to sexual intercourse

       or other sexual conduct (as defined in IC 35-31.5-2-221.5) commits sexual

       misconduct with a minor, a Level 5 felony.” (Subsequently amended by Pub.

       L. No. 144-2018, § 28 (eff. July 1, 2018); Pub. L. No. 40-2019, § 13 (eff. July 1,

       2019)). Ind. Code § 35-31.5-2-302 defines “[s]exual intercourse” as “an act that

       includes any penetration of the female sex organ by the male sex organ.” Ind.

       Code § 35-31.5-2-221.5 defines “[o]ther sexual conduct” as “an act involving:

       (1) a sex organ of one (1) person and the mouth or anus of another person; or

       (2) the penetration of the sex organ or anus of a person by an object.” A finger

       can be considered an object for purposes of the statute. See Seal v. State, 105

       N.E.3d 201, 209 (Ind. Ct. App. 2018) (citing Ind. Code § 35-31.5-2-221.5 and



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 5 of 13
       observing that case law has established that a finger is an object for purposes of

       the child molesting statute), trans. denied.


[12]   The charging information for Count II alleged that Nix, “being at least 18 years

       of age, did perform sexual intercourse with E.L., a child at least fourteen (14)

       years of age but less than sixteen (16) years of age . . . .” Appellant’s Appendix

       Volume II at 20. The charging information for Count III alleged that Nix,

       “being at least 18 years of age, did perform other sexual conduct as defined by

       I.C. 35-31.5-221.5, with E.L. a child at least fourteen (14) years of age but less

       than sixteen (16) years of age . . . .” Id.


[13]   In Boggs v. State, 104 N.E.3d 1287, 1288 (Ind. 2018), the Indiana Supreme

       Court provided guidance on the meaning of “penetration” for purposes of

       “other sexual misconduct.” The Court held that “[p]recedent makes clear that

       proof of the ‘slightest penetration’ of the female sex organ, including

       penetration of the external genitalia, is sufficient to sustain a conviction for

       child molestation based on sexual intercourse.” 104 N.E.3d at 1288 (citing

       Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), on reh’g (1997); Dinger v. State,

       540 N.E.2d 39, 40 (Ind. 1989)). The Court further held that “proof of the

       slightest penetration of the sex organ, including penetration of the external

       genitalia, is sufficient to demonstrate a person performed other sexual

       misconduct with a child.” Id. at 1289. The Court has also held “[t]he fact-

       finder may infer penetration from circumstantial evidence such as the physical

       condition of the victim soon after the incident.” Allbritten v. State, 262 Ind. 452,

       453, 317 N.E.2d 854, 855 (1974).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 6 of 13
[14]   With respect to Count III related to other sexual conduct, E.L. testified that Nix

       pulled down her pants and underwear, was feeling her up, and fingering her.

       When asked if she recalled whether any portion of Nix’s hand went into her

       vagina, she answered: “No I do not.” Id. at 28. However, she also testified that

       Nix touched her under her clothing and that “[h]is hand was touching my

       vagina.” Id. at 28. When asked to describe her use of the word “fingering,” she

       stated: “He like he had stuck his hand or his fingers or just not inside of me but

       just on or like rubbing it or something.” Id. at 29.


[15]   Based on the record and E.L.’s testimony, we conclude that the State presented

       evidence of a probative nature from which a reasonable trier of fact could have

       found that Nix committed sexual misconduct with a minor as charged under

       Count III. See Hale v. State, 128 N.E.3d 456, 463 (Ind. Ct. App. 2019) (“While

       K.F. did not know whether Hale’s finger had penetrated her vagina, again,

       penetration of the vaginal canal is not required to prove Level 1 felony child

       molesting as charged here. The State need only have proven penetration of

       K.F.’s external genitalia. And it would have been physically impossible for

       Hale to touch any part of K.F.’s vagina without having first penetrated her

       vulva, or external genitalia.”), (citation omitted), trans. denied; Morales v. State,

       19 N.E.3d 292, 297-298 (Ind. Ct. App. 2014) (rejecting the defendant’s

       argument that penetration of the female external genitalia does not constitute

       penetration of the female sex organ), trans. denied.


[16]   As to Count II related to sexual intercourse, E.L. testified that Nix pulled down

       her pants and “it felt like – like somebody had taken their elbow” and was

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 7 of 13
“sticking it into [her] vagina because it was very painful.” Transcript Volume

III at 21. The following exchange then occurred during direct examination:


        Q . . . After that happened you told us a little while ago about an
        excruciating pain. Initially what you started to describe it as an
        elbow tell me why you described it that way?

        A Because it was like I just thought of that because it was so like
        large and it just had felt like it was being like pushed open I
        guess.

        Q Okay. What was being pushed open?

        A My vagina.

        Q Okay. How did that feel?

        A It was very painful.


Id. at 29. E.L. also testified that as she realized what was happening she did not

know what to do and she “was just frozen.” Id. at 30. When asked what Nix

was doing when she realized what was happening, she answered: “He was

holding on to my hips and his legs were straight.” Id. She stated that “[h]e was

thrusting in and out” of her “vagina.” Id. at 31, 45. She also testified that her

vagina was painful sometimes when she would walk or sit down in the

following days. On redirect examination, the prosecutor asked her if she

thought Nix had “literally put his elbow in [her] vagina,” and she answered in

the negative. Id. at 87. When asked what she meant by saying it felt like an

elbow, she said: “Like (inaudible) it felt like it but it wasn’t his elbow.” Id.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 8 of 13
[17]   We conclude the State presented evidence of a probative nature from which a

       reasonable trier of fact could have found that Nix committed sexual misconduct

       with a minor as charged under Count II.


                                                            II.


[18]   The next issue is whether Nix’s sentence is inappropriate in light of the nature

       of the offenses and his character. Nix argues that the jury found him not guilty

       of rape and the fact that he and E.L. were close in age mitigates the nature of

       the offense significantly. He asserts that the imposition of consecutive

       sentences resulting in the maximum sentence allowed was inappropriate in light

       of the absence of any physical injury. With respect to his character, he argues

       he had no adult criminal history at the time of the offense and was not a

       hardened character. He also argues the trial court should have ordered his

       sentences to run concurrent with each other and concurrent with the sentence

       under Cause No. 2636. 1


[19]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Under this rule, the burden is on the defendant to persuade




       1
        To the extent Nix cites Article 1, Section 18, of the Indiana Constitution, which provides that “[t]he penal
       code shall be founded on the principles of reformation, and not of vindictive justice,” we observe that the
       Indiana Supreme Court has held that “particularized, individual applications are not reviewable under
       Article 1, Section 18 because Section 18 applies to the penal code as a whole and does not protect fact-
       specific challenges.” Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998), reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020                      Page 9 of 13
       the appellate court that his or her sentence is inappropriate. Childress v. State,

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


[20]   Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall

       be imprisoned for a fixed term between one and six years, with the advisory

       sentence being three years.


[21]   Our review of the nature of the offense reveals that Nix, who was nineteen

       years old, picked up E.L., who was fourteen years old, at 4:00 a.m., drove her

       to an area other than the party which E.L. had originally thought they were

       attending, pulled down her pants and underwear, positioned himself on top of

       her, touched her vagina with his hand, and then held her hips and thrusted in

       and out of her vagina while she felt like her vagina was being pushed open by

       something large. After Nix dropped her at home, E.L. felt disgusting and dirty

       and her vagina was painful sometimes when she would walk or sit down. At

       the sentencing hearing, E.L. testified: “I was in a very dark place for quite a

       while after everything. Many times I tried to end my life because I didn’t want

       to deal with anything.” Transcript Volume III 222. E.L.’s mother stated that

       E.L.’s depression and anxiety intensified after the offenses. E.L.’s mother also

       stated that she obtained treatment for E.L. and “[t]he doctor said [E.L.] will

       always suffer from PTSD because of this horrific nightmare she endured . . . .”

       Id. at 229. The presentence investigation report (“PSI”) states that E.L.’s

       parents reported that E.L. had become more reserved and less trusting of others.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 10 of 13
[22]   Our review of the character of the offender reveals that, as a juvenile, Nix was

       alleged to have committed sixteen counts in 2013 and he admitted in 2014 to

       two counts of sexual battery as class D felonies and two counts of battery as

       class B misdemeanors. In 2015, he admitted he violated probation. That same

       year, he admitted to being a delinquent child for child molesting as a level 3

       felony and two counts of conversion as class A misdemeanors. In 2016, the

       court granted a motion to terminate filed by probation due to Nix incurring an

       out-of-state charge and Nix was unsuccessfully terminated from probation. The

       PSI states that he has one out-of-state arrest as a juvenile which occurred in

       Virginia and involved sexually maladaptive thinking/behavior, he was being

       supervised by Henry County Juvenile Probation on the Virginia case when he

       incurred his first adult case, and the final outcome of the Virginia case had been

       postponed pending the resolution of all Indiana cases. The PSI also indicates

       Nix received services while a juvenile including probation supervision with

       residential placement and homebased counseling, and that all services were sex

       offender specific treatment programs.


[23]   As an adult, Nix was convicted of battery resulting in moderate bodily injury as

       a level 6 felony and domestic battery as a class A misdemeanor in 2019 under

       Cause No. 1943 related to offenses occurring in October 2017. In December

       2017, the court granted a petition to revoke bond under Cause No. 1943 due to

       new offenses. He was convicted of three counts of sexual misconduct with a

       minor as level 5 felonies under Cause No. 2636. He was also charged with rape

       as a level 3 felony and sexual misconduct with a minor as a level 5 felony under


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 11 of 13
       cause number 30D01-1901-F3-209, and the PSI indicates that the matter was

       pending.


[24]   Nix reported he was regularly using alcohol and marijuana by age seventeen

       and used cocaine approximately four times and LSD approximately three times

       between ages eighteen and nineteen. The PSI indicates Nix was successfully

       discharged in November 2015 from placement at Resolute Treatment Center, a

       residential facility specializing in juvenile males experiencing sexually

       maladaptive thinking/behaviors. That same month, he returned to outpatient

       counseling. In November 2017, he was unsuccessfully terminated from sex

       offense specific treatment at Family Service Society, Inc., due to failure to fully

       cooperate with treatment. That same month, Nix began outpatient services

       through Sojourners Rest Counseling to address sexually maladaptive

       thinking/behaviors. The probation officer completing the PSI stated that Nix

       described himself as “impulsive and incapable of turning down any female

       (regardless of her age) that is interested in sexual contact.” Appellant’s

       Appendix Volume II at 43.


[25]   The PSI further provides that Nix’s overall risk assessment score using the

       Indiana Risk Assessment System places him in the moderate risk to reoffend

       category. The probation officer recommended consecutive sentences of four

       years for Count II and three years for Count III.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 12 of 13
[26]   After due consideration, we conclude that Nix has not sustained his burden of

       establishing that his aggregate sentence of seven years is inappropriate in light

       of the nature of the offenses and his character.


[27]   For the foregoing reasons, we affirm Nix’s convictions and sentence.


[28]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2300 | June 3, 2020   Page 13 of 13
