      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                  Feb 07 2020, 10:24 am

      court except for the purpose of establishing                                    CLERK
                                                                                  Indiana Supreme Court
      the defense of res judicata, collateral                                        Court of Appeals
                                                                                       and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Timothy P. Broden                                        Curtis T. Hill, Jr.
      Lafayette, Indiana                                       Attorney General of Indiana
                                                               Megan M. Smith
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kim E. Sanders,                                          February 7, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-1440
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court
      State of Indiana,                                        The Honorable Randy J. Williams,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               79D01-1805-F4-18



      Mathias, Judge.


[1]   Kim E. Sanders (“Sanders”) appeals his conviction in the Tippecanoe Superior

      Court for sexual misconduct with a minor as a Level 5 felony. Sanders argues


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020                    Page 1 of 6
      that the evidence is insufficient to support his conviction because the State

      failed to prove the intent element of the offense. Concluding that the evidence is

      sufficient, we affirm Sanders’s conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   J.P., born in September 2001, lived in Lafayette with her grandmother, Sherry

      Wells Sanders (“Sherry”). J.P.’s mother, Deidra Pratt-Posey (“Deidra”), lived

      nearby with J.P.’s stepfather. Though Sherry is J.P.’s legal guardian, J.P.

      frequently spent time at her mother’s apartment. Sanders, who was in his early

      60s at the time of these events, is Deidra’s paternal uncle and J.P.’s great-uncle.


[4]   In the summer of 2016, Sanders occasionally helped Sherry with work around

      the house and yard. Sanders did odd jobs at a hobby store in Lebanon where

      J.P.’s stepfather worked and regularly visited the family at Deidra’s apartment.

      J.P. also worked at the hobby store outside of school hours. As a result, Sanders

      sometimes drove J.P. between home and the hobby shop and was present when

      J.P. was at her mother’s and grandmother’s homes.


[5]   Around July or August 2016, when J.P. was fourteen, Sanders kissed J.P. on

      the lips. This occurred in Sanders’s vehicle as he dropped off J.P. at her

      grandmother’s home. Uncomfortable, J.P. left the vehicle quickly. After the

      vehicle incident, Sanders groped J.P.’s breasts over her clothing. Several

      months later, Sanders molested J.P. at her mother’s apartment. He took

      advantage of being alone in the living room with J.P. while Deidra and her
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020   Page 2 of 6
      husband were in the bathroom attempting to give a bath to their young

      daughter. Sanders sat next to J.P., kissed her on the mouth, and put his hands

      down J.P.’s pants and underwear. He moved his fingers on and in J.P.’s vagina.

      Once Sanders left the apartment, J.P. cried.


[6]   Sometime after the incident at Deidra’s apartment, Sanders told J.P. that he

      wanted to be her boyfriend and that she had a “nice butt.” Tr. p. 45. J.P. saw

      Sanders again around March 2017 at the hobby shop. Sanders asked J.P. why

      they could not be friends and why she was avoiding him. J.P. told him to leave

      her alone and not speak to her. The following day, when J.P. arrived at the

      hobby shop with Deidra, J.P. saw Sanders’s vehicle outside the shop and

      refused to go in. She felt scared and angered.


[7]   J.P. first told her stepfather about Sanders’s behavior before confiding in her

      therapist and her grandmother. The family contacted the Lafayette Police

      Department in April 2017, and J.P. spoke to a forensic investigator trained in

      interviewing children. Law enforcement officials took statements from J.P.’s

      mother, grandmother, and stepfather. In May 2018, the State charged Sanders

      with one count of Level 4 felony sexual misconduct with a minor and two

      counts of Level 5 felony sexual misconduct with a minor, plus alleged him to be

      an habitual offender. A bench trial was held on April 2 and 3, 2019. Sanders

      was found guilty of the Level 4 felony and of one Level 5 felony, and not guilty

      of the second Level 5 felony offense. The State failed to prove Sanders was an

      habitual offender. Sanders was sentenced to ten years on the Level 4 felony and

      four years on the Level 5 felony, to be served consecutively, with eight years

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020   Page 3 of 6
      executed in the Department of Correction and six years suspended. Sanders

      now appeals his conviction for Level 5 felony sexual misconduct with a minor.


                                     Discussion and Decision
[8]   Sanders contends that the evidence presented at trial was insufficient to support

      his conviction for Level 5 felony sexual misconduct with a minor. Appellant’s

      App. p. 7. When reviewing a challenge to the sufficiency of the evidence, we

      neither reweigh the evidence nor judge the credibility of the witnesses. Clemons

      v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. Rather, we

      look to the evidence favorable to the verdict, along with any inferences

      reasonably drawn therefrom. Id. If there is evidence of probative value from

      which a reasonable trier of fact could infer that the defendant was guilty beyond

      a reasonable doubt, we will affirm the conviction. Id.


[9]   In order to convict Sanders of Level 5 felony sexual misconduct with a minor,

      the State was required to prove that Sanders knowingly or intentionally

      performed any fondling or touching with J.P. with intent to arouse or to satisfy

      the sexual desires of either J.P. or himself. See Ind. Code § 35-42-4-9(b). The

      trial court based its finding of guilt for the Level 5 offense on the incident when

      Sanders kissed J.P. in his vehicle. Tr. p. 86. Sanders argues that the evidence of

      this incident is insufficient to show he acted with intent to arouse or satisfy the

      sexual desires of J.P. or himself. Rather, he argues, the incident only shows his

      effort to facilitate future sexual gratification. We disagree.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020   Page 4 of 6
[10]   Sanders asserts that because he did not say anything to J.P. or put his tongue in

       her mouth when he kissed her, there is insufficient evidence that he acted with

       intent to arouse or satisfy sexual desire. Mere touching alone is not sufficient to

       constitute the crime of sexual misconduct with a minor. J.H. v. State, 655

       N.E.2d 624, 625 (Ind. Ct. App. 1995), trans. denied. The State must also prove

       beyond a reasonable doubt that the act of touching was accompanied by the

       specific intent to arouse or satisfy sexual desires. Id. “The intent to gratify

       [sexual desires] . . . must coincide with the conduct; it is the purpose or

       motivation for the conduct.” DeBruhl v. State, 544 N.E.2d 542, 546 (Ind. Ct.

       App. 1989). Intent 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.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind.

       2000).


[11]   Here, the trial court heard evidence from which it could be reasonably inferred

       that Sanders was motivated to kiss his great-niece on the lips to arouse or satisfy

       his sexual desires. The facts most favorable to the judgment show that Sanders

       chose to kiss J.P., with whom he spent time in the company of other family

       members, in private, when he and J.P. were alone in his vehicle. Sanders

       subsequently suggested that he become J.P.’s boyfriend, also when they were

       alone together at the hobby shop. This conduct indicates Sanders’s awareness

       that our society rejects sexual relationships between members of the same

       family. Sanders made at least one comment about an erogenous zone of J.P.’s

       body that caused her to feel uncomfortable. From the natural and usual


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020   Page 5 of 6
       sequence of Sanders’s conduct, the trial court could reasonably infer there was

       sufficient evidence to conclude that when Sanders kissed J.P., he did so with

       the intent of arousing or satisfying his or J.P.’s sexual desire. Sanders’s

       argument to the contrary is simply a request to reweigh the evidence, which we

       will not do.


[12]   We note, too, that such an inference of intent does not preclude the possibility

       that Sanders was also motivated to kiss J.P. in order to “facilitate future sexual

       gratification.” Appellant’s Br. p. 10. As we have held in the past, simply

       because the intent of later acts is clearly for sexual gratification, does not mean

       that initial, so-called “boundary testing” acts of touching such as kissing are not

       done with the intent to satisfy sexual desire. See Nuerge v. State, 677 N.E.2d

       1043, 1049 (Ind. Ct. App. 1997), trans. denied.


                                                 Conclusion
[13]   Sanders’s conviction for sexual misconduct with a minor as a Level 5 felony is

       supported by sufficient evidence from which the trial court reasonably

       concluded that Sanders acted with the intent to arouse or satisfy sexual desire.


[14]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1440 | February 7, 2020   Page 6 of 6
