MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                    Oct 24 2018, 5:30 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason Riddle,                                            October 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A04-1712-CR-2975
        v.                                               Appeal from the Jefferson Superior
                                                         Court
State of Indiana,                                        The Honorable Michael Hensley,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         39D01-1705-F6-395



Altice, Judge



Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018      Page 1 of 24
                                             Case Summary
[1]   Following a jury trial, Jason Riddle was convicted of Level 6 felony performing

      sexual conduct in the presence of a minor. The sole issue he raises on appeal is

      whether the State presented sufficient evidence to support his conviction.


[2]   We affirm.


                                   Facts & Procedural History
[3]   In the early evening of April 25, 2017, Denise Chatham was seated on the front

      porch of her home located on Walnut Street in Madison, Indiana. Walnut

      Street runs roughly north to south and is a two-lane street with room for street

      parking on both sides. Chatham’s home was located at the entrance to an alley

      that ran perpendicular to Walnut Street. Chatham’s boyfriend, Russell Smith,

      and her two older sons, Tyler and Jacob, were inside the home.


[4]   Across the street, Renee Hughes also sat on her porch, drinking a cup of coffee

      and watching her children play with neighborhood children on the sidewalk.

      The children, seven in all ranging in age from third grade to middle school,

      were running, riding bicycles, and playing four square.


[5]   Both Chatham and Hughes saw a man, later identified as Riddle, walking north

      on the sidewalk wearing blue jeans and a blue shirt over a white T-shirt. As

      Riddle neared, Hughes instructed the children to make room on the sidewalk

      for Riddle to pass. Riddle walked past the children and then crossed the street

      to the alley that runs along the side of Chatham’s house. Riddle did not make


      Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 2 of 24
      eye contact with Chatham as he passed her porch. Chatham recalled, “He had

      a strange look on his face. And I’m thinking – I thought to myself, something’s

      not right with him.” Transcript Vol. 2 at 21.


[6]   After Riddle passed, Chatham walked to the end of her porch and looked down

      the alley. Riddle had stopped in the alley about “15 to 20 feet” away and was

      “massaging his male membrane [sic] . . . going back and forth with both of his

      fingers . . . [of] both hands.” Id. at 22. Chatham returned inside her home and

      told Russell, “there’s a weirdo in the alley doing something weird.” Id. at 110.

      Chatham went to the kitchen of the home, which had a window facing the

      alley, and looked through the blinds. Riddle was still standing in the same

      place, making the same movement. Both Russell and Jacob also looked

      through the window. Jacob testified that Riddle was facing their house and had

      positioned his shirt in front of his groin and was “kind of hunched over, and his

      hand was up underneath his shirt.” Id. at 192. Russell used his phone to take

      pictures through the slats in the blinds and testified that, “right as I’m taking

      [the second of two pictures], [Riddle] sees either the flash, or my blue case on

      my phone,” and began walking back in the direction of Hughes’s house. Id. at

      120-21.


[7]   Chatham called 911 and returned to her porch, soon to be joined by Russell.

      Riddle emerged from the alley and ran north up the street. Chatham yelled to

      Hughes, “you would not believe what that guy was doing out here in this

      alley.” Id. at 29. Hughes “flipped out, and took off running.” Id. Hughes ran

      north up the street and rounded the corner onto a side street. There, Hughes

      Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 3 of 24
      saw a “gentleman in a white shirt . . . [w]alking really, really fast, almost

      running.” Id. at 149. Hughes picked up a blue shirt from the ground and yelled

      at Riddle to stop. Riddle “halfway turned around and looked, and then kept

      going.” Id. at 150-51. Hughes eventually lost sight of Riddle and returned

      home, still in possession of the blue shirt.


[8]   Soon thereafter, Detective Jonathon Simpson encountered Riddle, who

      matched the suspect’s description. Riddle denied having been in the alley by

      Chatham’s house and denied being in the picture taken by Russell, which

      Detective Simpson now had in his possession. Another officer, Patrolman

      Ricky Harris, went into the alley and took pictures of the children playing on

      the street. Officer Harris spoke with Hughes before retrieving the blue shirt and

      heading to Detective Simpson’s location.


[9]   Officer Harris picked up Riddle and returned to the alley. On the way, Riddle

      told Officer Harris that he had not been in the alley. Confronted with the blue

      shirt, Riddle stated that he was on his way to do laundry and did not have a

      blue shirt. After witnesses identified Riddle, he stated that he may have walked

      through the alley but denied masturbating. Police released Riddle to obtain an

      arrest warrant. Sometime later, the picture that purportedly depicted Riddle in

      the alley was posted onto a community Facebook page, and Riddle sent the

      following message asking that the post be removed:


              Hey David. There’s something about this photo that bothers me.
              Would you please take it down? I wasn’t doing what was



      Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 4 of 24
               implied. I was simply running. I often use my Samsung Help to
               track my running. If that’s me, I was taking a break is all.


       Id. at 158.


[10]   Riddle was arrested and charged with public indecency, a Class A

       misdemeanor, and performing sexual conduct in the presence of a minor, a

       Level 6 felony. The State later dismissed the charge of public indecency. A

       jury found Riddle guilty of performing sexual conduct in the presence of a

       minor. He was sentenced to 545 days incarceration. Riddle now appeals.

       Additional facts will be provided as necessary.


                                        Discussion & Decision
[11]   Riddle claims that the evidence was insufficient to support his conviction. In

       reviewing a challenge to the sufficiency of the evidence, this court will neither

       reweigh the evidence nor judge witness credibility. Kien v. State, 782 N.E.2d

       398, 407 (Ind. Ct. App. 2003), trans. denied. Instead, we consider only the

       evidence which supports the conviction along with the reasonable inferences to

       be drawn therefrom. Id. We will affirm the conviction if there is substantial

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

       drawn the conclusion that the defendant was guilty of the crime charged

       beyond a reasonable doubt. Id.


[12]   Riddle was convicted of performing sexual conduct in the presence of a minor.

       Ind. Code § 35-42-4-5(c)(3) provides that “[a] person eighteen (18) years of age

       or older who knowingly or intentionally . . . touches or fondles the person’s

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 5 of 24
       own body . . . in the presence of a child less than fourteen (14) years of age with

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

       commits performing sexual conduct in the presence of a minor, a Level 6

       felony.”


[13]   According to Riddle, “the Record reveals that the children were unaware of the

       activity in the alley. Thus, the State needed to prove that [he] used the presence

       of the children to satisfy his sexual desires.” Appellant’s Brief at 8-9. Riddle,

       therefore, contends that “because the State presented no evidence that the

       children bore any nexus to the act which occurred in the alley, the State failed

       to show anything more than an act of indecency.” Id. We disagree.


[14]   I.C. § 35-42-4-5(c)(3) criminalizes sexual conduct performed in the presence of a

       child under the age of fourteen when the conduct was done in the presence of

       such a child with the intent to arouse or satisfy the sexual desires of either the defendant

       or the child. I.C. § 35-42-4-5(c)(3) (emphasis added); see also Baumgartner v.

       State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008). To establish that the

       defendant was in the presence of a child when he performed a sex act, the

       statute merely requires that a child under age fourteen be in the general area

       where the perpetrator is so that there is a reasonable prospect that children

       might be exposed to the perpetrator’s conduct. See Glotzbach v. State, 783

       N.E.2d 1221, 1227 (Ind. Ct. App. 2003) (interpreting statute that addressed

       Class D felony public indecency, finding that “for children to be present within

       the meaning of [the public indecency statute] they only must be in the general

       area in the public place where the perpetrator is so that there is a reasonable

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 6 of 24
       prospect that children under sixteen might be exposed to the perpetrator’s

       conduct”); see also Baumgartner, 891 N.E.2d at 1138 (applied reasoning from

       Glotzbach and found that I.C. § 35-4-2-5(c) “simply requires that a child under

       the age of fourteen be at the place where the defendant’s conduct occurs”).

       The statute does not require that the child be aware of the defendant’s conduct,

       let alone witness it. See Baumgartner, 891 N.E.2d at 1138 (finding that

       defendant was “in the presence” of children despite their lack of awareness
                                                                                                      1
       where he masturbated while looking at two toddlers in their beds).


[15]   Here, the evidence presented at trial indicated that Riddle walked through a

       group of seven children playing on the sidewalk and then abruptly turned,

       crossed the street, and walked into a nearby alley. Chatham, whose home was

       located at the entrance to the alley, was seated on her front porch and was

       watching Riddle. At trial, Chatham specifically testified that when Riddle

       entered the alley, she got up from her chair, watched Riddle from the edge of

       her porch, and saw him use both of his hands to “massag[e]” his penis.

       Transcript Vol. 2 at 22. She further testified that she saw the head of Riddle’s

       penis. Chatham’s boyfriend also testified that he saw Riddle in the alley with

       his pants unzipped and his hand on his penis, masturbating. Chatham

       answered in the affirmative when asked if, during the act, Riddle’s body was




       1
         To the extent that Riddle invites this court to interpret and clarify I.C. § 35-42-4-5(c)(3), we decline to do so
       in light of the statutory interpretation provided by this court in Baumgartner.

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018                Page 7 of 24
       angled toward the street where the children were playing. Chatham testified

       that the children were playing “down to the alley” entrance. Id. at 16.


[16]   When Riddle realized he was being watched, he left the alley. Hughes gave

       chase, and Riddle discarded the outer, blue shirt he was wearing. The shirt was

       recovered by the neighbor and given to the police.


[17]   Police officers eventually located Riddle and questioned him. Riddle initially

       lied to the officers and told them he had not been in the alley. He also told an

       officer that he did not have a blue shirt and that he “was walking to do

       laundry.” Transcript Vol. 3 at 20.


[18]   While Riddle was being questioned, a police officer arrived at the scene of the

       crime approximately five minutes after receiving the call from dispatch. While

       the officer may not have had direct knowledge as to where the children were

       located when Riddle was in the alley, he testified that, when he arrived, the

       children were present; when he went into the alley to take pictures, he could see

       the children from the alley; while he was in the alley, he could hear the

       children; and, “[the children] were noticeable.” Id. at 15. Photographs taken

       by the police officer, and admitted into evidence, were taken from the vantage

       of the approximate location where Riddle was standing in the alley. The

       photographs show that the houses on the street where the children were playing

       and the alley that Riddle ducked into were in close proximity. Although the

       photographs were taken ten to fifteen minutes after the initial call was made to




       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 8 of 24
       the police, the jury could have inferred from the photographs that Riddle could

       see the children while masturbating in the alley.


[19]   At trial, Riddle admitted he had been in the alley, but he testified that he went

       into the alley to urinate. Chatham testified repeatedly, as did other witnesses,

       that she did not see Riddle urinating in the alley. A police officer testified that

       no bodily fluids were found in the alley. Prior testimony by Riddle was read

       into evidence at his trial. In that testimony, Riddle stated that, at the time he

       claimed to be urinating in the alley, “[t]here were no kids [playing]. I would

       have heard them playing.” Transcript Vol. 2 at 245.


[20]   It is reasonable to infer from the evidence that the children would have been

       able to see Riddle during his act. Likewise, the record supports the conclusion

       that Riddle’s prurient interest was stimulated by the presence of the children

       and that he masturbated in the presence of the children, not far away from them

       and within their line of sight, which satisfies the test mentioned above that,

       “there is a reasonable prospect that [the] children . . . might be exposed to the

       perpetrator’s conduct.” Glotzbach, 783 N.E.2d at 1227. We therefore find that

       the State presented sufficient evidence to support Riddle’s conviction.


[21]   Judgment affirmed.


       Najam, J., concurs.


       Robb, J., dissents with opinion.



       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 9 of 24
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Jason Riddle,
       Appellant-Defendant,                                     Court of Appeals Case No.
                                                                39A04-1712-CR-2975
               v.

       State of Indiana,
       Appellee-Plaintiff,




       Robb, Judge, dissenting.

[22]   I respectfully dissent from the majority’s conclusion that the State presented

       sufficient evidence of performing sexual conduct in the presence of a minor.

       Put simply, I believe the majority expands the definition of “in the presence of a

       child,” the issues presented require our interpretation and clarification of

       Indiana Code section 35-42-4-5(c), and the State failed to present sufficient

       evidence that Riddle’s conduct was causally connected to the children’s presence.


                                 I. In the Presence of a Child
[23]   Our legislature did not define “in the presence of a child” as it appears in

       Indiana Code section 35-42-4-5. However, as noted by the majority, a panel of

       this court has previously examined the definition of “present” in the similar



       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 10 of 24
       context of Indiana’s public indecency statute, Indiana Code section 35-45-4-1.2

       Glotzbach, 783 N.E.2d at 1228. In Glotzbach, a seventeen-year-old was doing her

       homework in a public library when she looked up and saw a man masturbating

       between the book shelves. The man was later identified and convicted of public

       indecency as a Class D felony because it was committed “in or on a public

       place where a child less than sixteen years (16) years of age is present.” Id. at

       1226 (quoting Ind. Code § 35-45-4-1(b)(1)).


[24]   On appeal, the defendant argued the State had failed to establish that any

       children were “present” at the library because there was no evidence that any

       children were in the immediate vicinity of where the incident occurred, and the

       State failed to prove that children had a “reasonable opportunity/potential to

       view the act.” Id. Determining the term “present” was ambiguous, the court

       turned to the rules of statutory construction and looked to the dictionary, which

       defined the word “present” as “being at the specified or understood place; at

       hand; in attendance.” Id. at 1227 (quoting Webster’s New World Dictionary




       2
           The public indecency statute in effect at the time of the crime in Glotzbach provided:

                (a) A person who knowingly or intentionally, in a public place:
                     ***
                     (3)   appears in a state of nudity; or
                     (4)   fondles the person’s genitals or the genitals of another person;
                commits public indecency, a Class A misdemeanor.
                (b) However, the offense under subsection (a) is a Class D felony if the person commits the
                    offense:
                     (1) by appearing in the state of nudity with the intent to arouse the sexual desires of the
                         person or another person in or on a public place where a child less than sixteen (16)
                         years of age is present . . . .

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018              Page 11 of 24
       1065 (3d ed. 1988)). The court then concluded that “for children to be present

       within the meaning of [the public indecency statute] they only must be in the

       general area in the public place where the perpetrator is so that there is a

       reasonable prospect that children under sixteen might be exposed to the

       perpetrator’s conduct.” Id.


[25]   Applying the foregoing definition of “present” to the facts presented, the court

       concluded there was sufficient evidence to support the defendant’s conviction:


               Here there were children under the age of sixteen in the area of
               the checkout desk. There was evidence that they may have been
               able to see the defendant, with some difficulty through the book
               shelving, where he was seen by [the witness]. Further, the
               children’s area of the library was on the same floor as the adult
               area where the defendant was. It was opposite the adult area on
               the other side of the checkout desk. There is no reason to
               suppose that children under sixteen would not enter the adult
               area from time to time, for example to consult [a library
               employee] as did [the seventeen-year-old witness]. Under these
               circumstances, children under sixteen were “present” within the
               statutory reach to protect such children from the potential for
               exposure to conduct such as the defendant’s. The State need not
               prove that they actually witnessed the defendant’s act. A
               contrary interpretation would bring about an absurd result,
               because the statute was intended to protect children under the
               age of sixteen from the mere potential that they might see an
               individual commit the act of public indecency as defined in Ind.
               Code § 35-45-4-1.


       Id.




       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 12 of 24
[26]   Five years later, we applied Glotzbach’s holding to the requirement of Indiana

       Code section 35-42-4-5 that a sexual act be performed “in the presence of a

       minor.” Baumgartner, 891 N.E.2d at 1138. In Baumgartner, the defendant was

       staying at the home of his girlfriend. Also living in the home was his

       girlfriend’s adult daughter, Brandy, and Brandy’s two young children, ages two

       and three. One night when Brandy went to check on her children, she saw the

       defendant masturbating in the children’s doorway, watching the children as

       they slept. The defendant was charged and convicted of performing sexual

       conduct in the presence of a minor. On appeal, the defendant challenged the

       sufficiency of the evidence, claiming he did not fondle himself “in the presence”

       of a child because there was no evidence the children were aware of his

       conduct. Id. We looked to Glotzbach’s definition of “present,” see supra ¶¶ 23-

       25, and, finding Glotzbach “directly on point,” we held the statute


               does not require that the defendant’s conduct be witnessed by the
               child or that the child be aware of the defendant’s conduct.
               Instead, it simply requires that a child under the age of fourteen
               be at the place where the defendant’s conduct occurs.


       Id. We rejected the defendant’s attempt to distinguish Glotzbach by emphasizing

       that his conduct was committed within the confines of a private home rather

       than in a public library. Besides the fact that the public indecency statute

       contains the element of “in a public place,” Ind. Code § 35-45-4-1 (2000), which

       the performing sexual conduct in the presence of a minor statute does not, we

       explained the performing sexual conduct in the presence of a minor statute

       criminalizes

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 13 of 24
               sexual conduct performed in the presence of a child under the age
               of fourteen when the conduct was done in the presence of such a
               child with the intent to arouse or satisfy the sexual desires of either the
               defendant or the child.


       Baumgartner, 891 N.E.2d at 1138. Therefore, we concluded that where there

       was evidence that the defendant was masturbating in the presence of two

       children and watching them as they slept,


               the jury could have reasonable [sic] concluded that Baumgartner
               knowingly or intentionally touched or fondled his own body in
               the presence of a child less than fourteen years of age with the
               intent to arouse or satisfy his sexual desires.


       Id. at 1138-39.


[27]   Here, the majority relies upon Baumgartner and Glotzbach for the proposition

       that:


               [t]o establish that the defendant was in the presence of a child
               when he performed a sex act, the statute merely requires that a
               child under age fourteen be in the general area where the
               perpetrator is so that there is a reasonable prospect that children
               might be exposed to the perpetrator’s conduct.


       Slip op. at ¶ 14 (citing Glotzbach, 783 N.E.2d at 1227; Baumgartner, 891 N.E.2d

       at 1138).


[28]   The State presented evidence Riddle passed through a group of seven children

       as he walked along Walnut Street before crossing the street and entering an

       alley. “[T]wo or three seconds” later, Chatham stood up from her chair and

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 14 of 24
       walked to the edge of her porch. Tr., Vol. 2 at 21. As Chatham looked around

       the corner and down the alley, she saw Riddle masturbating “15 to 20 feet”

       away. Id. at 22. Chatham then entered her home to alert Russell and her two

       adult sons and Russell took two pictures of Riddle through the kitchen window.

       Sometime between the first and second picture, Riddle turned to leave the alley

       and returned to Walnut Street, where Hughes, the neighbor from across the

       street, briefly chased Riddle before abandoning the effort and retrieving Riddle’s

       outer blue shirt which he had left behind. Riddle denied having been in the

       alley before admitting that he was, offering differing explanations as to why.

       And finally, the State presented the testimony of Officer Harris and pictures he

       had taken during his initial investigation.


[29]   On this evidence, I believe a conclusion that Riddle “touch[ed] or fondl[ed]” his

       body was clearly supported. Ind. Code § 35-42-4-5(c). However, even limiting

       my consideration solely to that of presence, that is to say, without consideration

       of a causal connection which I discuss further below, see infra ¶¶ 32-38, I still

       cannot conclude the State presented sufficient evidence that Riddle was “in the

       presence of a child.” Id.


[30]   It remains uncontested that no children witnessed, or were near enough to

       witness, Riddle’s conduct. Indeed, the only people who witnessed Riddle in the

       alley were adults. And even then, it was only after a conscious attempt to do

       so: Chatham walked to the edge of her porch and looked around the corner,

       while the remaining witnesses, who Chatham had alerted to Riddle’s presence,

       peered through the blinds of a window. Chatham testified that the entire

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 15 of 24
       event—from the time she originally saw Riddle enter the alley until the time he

       returned to Walnut Street—totaled less than one minute. The evidence also

       reveals the alley was some distance away from where Riddle had passed by the

       children, as Walnut Street was a two-lane street with room for street parking on

       both sides. Furthermore, the pictures taken by Officer Harris depicting children

       visible from the alley, see States’ Exhibits 16-21, Exhibits Volume at 19-24, were

       taken ten to fifteen minutes after the initial call, Tr., Vol. 3 at 9, and in a

       location different from where Riddle had been standing with a less obstructed

       view, id. at 35. Therefore, to the extent the majority concludes the State

       presented sufficient evidence that Riddle with “within [the children’s] line of

       sight,” thus satisfying the test that “there [was] a reasonable prospect that [the]

       children . . . might be exposed to the perpetrator’s conduct,” slip op. at ¶ 20

       (quoting Glotzbach, 783 N.E.2d at 1227), I disagree.


[31]   In Baumgartner, the defendant stood mere feet away from the children, and

       although they were asleep at the time, the children could easily have awoken

       and been exposed to the defendant’s conduct. 3 Baumgartner, 891 N.E.2d at

       1138. Similarly, in Glotzbach, there was evidence that children could have seen

       the defendant through the bookshelves, just as the seventeen-year-old who

       reported the crime had done. 783 N.E.2d at 1227. Both cases focus their

       analysis on a reasonable prospect that children might be exposed to the



       3
        In Baumgartner, the State also presented evidence the defendant was watching the children as they slept,
       which, as discussed below, see infra ¶¶ 11-17, serves to distinguish Baumgartner from this case on the issue of a
       causal connection.

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018            Page 16 of 24
       defendant’s conduct and I believe the majority stretches the definition beyond

       those parameters. Going forward, I am left to wonder, how far away must the

       defendant be before he is no longer in the presence of a child?


                         II. Indiana Code section 35-42-4-5(c)
[32]   The majority declined Riddle’s invitation to interpret and clarify Indiana Code

       § 35-42-4-5(c) “in light of the statutory interpretation provided by this court in

       Baumgartner.” Slip op. at ¶ 14 n.1. However, I believe this case presents a

       different issue than addressed in Baumgartner and, in so doing, it exposes a

       meaningful distinction between the performing sexual conduct in the presence

       of a minor statute and the public indecency statute of Glotzbach upon which

       Baumgartner relied.


[33]   Here, Riddle argues the statute requires the State prove more than he was

       simply in the presence of a child when he engaged in the underlying conduct.

       Brief of Appellant at 12. Specifically, Riddle argues that “the legislature

       presumably meant to protect children from seeing sexual conduct or from being

       used as sexual aids.” Id. at 10. Therefore, according to Riddle, the statute

       requires a causal connection, or a “nexus,” between the children and the sexual

       conduct. Id. at 12. In turn, the State contends the only “nexus” requirement is

       that the sexual conduct be done with the intent to arouse or satisfy sexual

       desires. Brief of Appellee at 15. In other words, the defendant’s conduct and

       the presence of children is sufficient to satisfy the statute and no connection

       between the two is necessary. Both parties present reasonable interpretations of


       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 17 of 24
       the statute and therefore, to resolve this ambiguity, I turn to the rules of

       statutory construction.


               When faced with a question of statutory interpretation, we first
               examine whether the language of the statute is clear and
               unambiguous. If it is, we need not apply any rules of
               construction other than to require that words and phrases be
               given their plain, ordinary, and usual meanings. Where a statute
               is open to more than one interpretation, it is deemed ambiguous
               and subject to judicial construction. Our primary goal in
               interpreting a statute is to ascertain and give effect to the
               legislature’s intent, and the best evidence of that intent is the
               statute itself. We presume that the legislature intended for the
               statutory language to be applied in a logical manner in harmony
               with the statute’s underlying policy and goals. Additionally, the
               rule of lenity requires that penal statutes be construed strictly
               against the State and any ambiguities resolved in favor of the
               accused, . . . but statutes are not to be overly narrowed so as to
               exclude cases they fairly cover.


       Dobeski v. State, 64 N.E.3d 1257, 1259-60 (Ind. Ct. App. 2016) (citations and

       quotations omitted). Moreover, we examine the statute as a whole and avoid

       excessive reliance upon a strict literal meaning or the selective reading of the

       individual words. Sales v. State, 723 N.E.2d 416, 420 (Ind. 2000).


[34]   “To get at the thought or meaning expressed in a statute . . . the first resort, in

       all cases, is to the natural signification of the words, in the order of grammatical

       arrangement in which the framers of the instrument have placed them.” FLM,

       LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1176 (Ind. Ct. App. 2012), trans.

       denied. “We must give due regard to punctuation when construing a rule or


       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 18 of 24
       statute.” Lake Holiday Conservancy v. Davison, 808 N.E.2d 119, 123 (Ind. Ct.

       App. 2004). And, we assume all language in a rule or statute was used

       intentionally and we should strive to give effect and meaning to all of it. Id. I

       find the statute’s lack of a semicolon between “in the presence of a child less

       than fourteen years of age” and “with the intent to arouse or satisfy the sexual

       desires of the child or the older person,” to be significant. Ind. Code § 35-42-4-

       5(c).


[35]   As written, the statute reads as two dependent clauses with the latter modifying

       the former. In other words, the sexual conduct must have occurred “in the

       presence of a child less than fourteen years of age” and been done in the child’s

       presence “with the intent to arouse or satisfy the sexual desires of the child or

       the older person.” Ind. Code § 35-42-4-5(c) (emphasis added). Construing the

       statute in accordance with the State’s argument effectively reads a semicolon

       into the sentence and separates the phrases as two independent clauses: (1) in

       the presence of child less than fourteen; and (2) with the intent to arouse or

       satisfy the sexual desires of the child or the older person. “A semicolon is used

       to join two closely related independent clauses.” Jackson v. State, 29 N.E.3d 151,

       154 (Ind. Ct. App. 2015) (citing Andrea Lunsford & Robert Connors, The

       Everyday Writer 204 (1999)). Under the State’s construction, the two clauses

       are closely related, but not causally connected. Therefore, absent a semicolon, I

       believe Riddle’s argument is more consistent with the statute’s grammatical

       arrangement and use of punctuation.




       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 19 of 24
[36]   The statute’s use of with also distinguishes the performing sexual conduct in the

       presence of a minor statute from the public indecency statute at issue in

       Glotzbach. 783 N.E.2d at 1227. Whereas the public indecency statute prohibits

       “appearing in the state of nudity with the intent to arouse the sexual desires of

       the person or another person in or on a public place where a child less than

       sixteen (16) years of age is present,” Ind. Code § 35-45-4-1 (emphasis added),

       the performing sexual conduct in the presence of a minor statute requires the

       defendant’s conduct occur “in the presence of a child . . . with the intent to

       arouse or satisfy the sexual desires of the child or the older person,” Ind. Code §

       35-42-4-5(c) (emphasis added). We interpreted the public indecency statute’s

       use of where broadly, holding, “for children to be present within the meaning of

       [the public indecency statute] they only must be in the general area in the public

       place where the perpetrator is so that there is a reasonable prospect that children

       . . . might be exposed to the perpetrator’s conduct.” Glotzbach, 783 N.E.2d at

       1227 (emphasis added). Our legislature could have similarly drafted the statute

       at issue as prohibiting its enumerated forms of conduct simply where a child was

       present. See Day v. State, 57 N.E.3d 809, 814 (Ind. 2016) (noting that when

       interpreting a statute, we heed both to what the statute says and to what it

       “does not say”). However, in crafting the relevant section, the legislature

       selected the word with—bringing implications of a causal connection.


[37]   With that choice in mind, the primary objective of statutory construction is to

       give effect to the intent of our legislature. Dobeski, 64 N.E.3d at 1259. In so

       doing, we presume that the General Assembly “intended its language to be

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 20 of 24
       applied in a logical manner consistent with the statute’s underlying policy and

       goals.” State v. CSX Trans., Inc., 673 N.E.2d 517, 519 (Ind. Ct. App. 1996).

       “Words and phrases in a single section are construed together with the other

       parts of the same section and with the statute as a whole, in order that the spirit

       and purpose of the statute is carried out.” Dreiling v. Custom Builders, 756

       N.E.2d 1087, 1089 (Ind. Ct. App. 2001). Indiana Code section 35-42-4-5(c) is

       included in the chapter defining sex crimes, Ind. Code ch. 35-42-4, and its first

       two subsections, Ind. Code § 35-42-4-5(a) and (b), criminalize vicarious sexual

       gratification. Thus, I believe a reading of the statute as a whole also weighs in

       favor of a causal connection.


[38]   Moreover, when a statute is reasonably susceptible to more than one

       interpretation, we must consider the consequences of a particular construction.

       Dreiling, 756 N.E.2d at 1089. And, we “do not presume that the Legislature

       intended language used in a statute to be applied illogically or to bring about an

       unjust or absurd result.” Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015). In

       Baumgartner, we considered whether the statute was unconstitutionally vague

       regarding the defendant’s hypothetical of parents being walked in on by their

       child while engaging in one of the statute’s prohibited forms of sexual conduct.

       891 N.E.2d at 1137. Noting that we do not entertain hypothetical situations to

       demonstrate unconstitutional vagueness, we nevertheless concluded that “we

       do not read the statute to prohibit” such conduct. Id. Absent public

       indecency’s element of “in or on a public place,” Ind. Code § 35-45-4-1, or a

       requirement of a causal connection between the presence of a child and the


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       defendant’s conduct, I believe the majority’s test from Glotzbach of whether

       “there is a reasonable prospect that [the] children . . . might be exposed to the

       . . . conduct,” could indeed criminalize the hypothetical discussed in

       Baumgartner and lead to absurd results.4 Finally, the rule of lenity only

       strengthens Riddle’s argument as we are required to interpret ambiguous

       criminal statutes in the defendant’s favor. Day, 57 N.E.3d at 814.


[39]   In sum, I disagree with the majority’s reliance on Baumgartner and I believe the

       issues presented by this case require our interpretation and clarification of

       Indiana Code section 35-42-4-5(c). Unlike the public indecency statute of

       Glotzbach, which was intended to protect children from “the mere potential that

       they might see an individual commit the act of public indecency,” 783 N.E.2d

       at 1227, and its corresponding test applied by the majority, I believe the statute

       at issue here was intended to protect children from being used as sexual aids.

       Therefore, I conclude the State was required to present sufficient evidence

       Riddle’s conduct was causally connected to the “presence of a child.” Ind.

       Code § 35-42-4-5(c).




       4
         Additionally, if a statute has two reasonable interpretations, one constitutional and the other not, we choose
       the interpretation that will uphold the constitutionality of the statute. Sims v. United States Fid. & Guar. Co.,
       782 N.E.2d 345, 349 (Ind. 2003). Although protecting children from the mere possibility of witnessing sexual
       conduct is a compelling governmental interest, I am not convinced this interpretation of the statute could
       pass constitutional scrutiny. See Lawrence v. Texas, 539 U.S. 558 (2003).

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018            Page 22 of 24
                                     III. Causal Connection
[40]   Despite declining to address the parties’ arguments regarding whether the

       statute requires a causal connection, the majority nevertheless concludes “the

       record supports the conclusion that Riddle’s prurient interest was stimulated by

       the presence of the children, not far away from them and within their line of

       sight[.]” Slip op. at ¶ 20. As discussed above, I believe the State failed to

       present sufficient evidence Riddle’s conduct was in the “presence of a child.”

       Ind. Code § 35-42-4-5(c). However, even assuming that it had, I am still left

       unconvinced the evidence was sufficient to prove a causal connection with his

       conduct.


[41]   In the absence of direct evidence, the majority premises its conclusion on three

       sources of circumstantial evidence. The first source was the Officer Harris’

       testimony and the pictures from his initial investigation. Again, these pictures

       were taken ten to fifteen minutes after the initial call, Tr., Vol. 3 at 9, and in a

       location different from where Riddle had been standing with a less obstructed

       view, id. at 35. The second source was Chatham’s testimony and the fact that

       she had “answered in the affirmative when asked if, during the act, Riddle’s

       body was angled toward the street where the children were playing.” Slip op. at

       ¶ 15. However, of the two pictures taken by Russell and presented by the State,

       the first showed Riddle, with his hands concealed by the blinds of the window,

       looking away from the direction of the children. State’s Exhibit 14, Exhibits

       Vol. at 17. The second showed Riddle with his hands visibly by his sides

       turning to exit the alley toward Walnut Street, the direction from which he had

       Court of Appeals of Indiana | Memorandum Decision 39A04-1712-CR-2975 | October 24, 2018   Page 23 of 24
       entered. State’s Exhibit 15, Exhibits Vol. at 18; Tr., Vol. 2 at 120. And Russell

       further testified that during this time, Riddle was looking “back and forth up

       and down the alley.” Tr., Vol. 2 at 115. Third and finally, there was a close

       temporal proximity between Riddle’s passage through the group of children and

       his entrance into the alley.


[42]   Unlike Baumgarter, where the State presented direct evidence that the defendant

       was watching the children as they slept and thus demonstrating a causal

       connection between his conduct and their presence, 891 N.E.2d at 1138, I

       cannot say the limited, circumstantial evidence presented here “is substantial

       evidence of probative value from which a reasonable trier or fact could have

       drawn the conclusion that the defendant was guilty of the crime charged

       beyond a reasonable doubt.” Kien, 782 N.E.2d at 407. I would therefore

       reverse Riddle’s conviction and remand accordingly.




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