MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                          Sep 13 2016, 5:59 am

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
Philip R. Skodinski                                      Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Welches,                                         September 13, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1512-CR-2249
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jerome Frese,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1301-FC-10



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016   Page 1 of 9
[1]   Following a jury trial, Welches was convicted of two counts of Class C felony

      child molesting. Welches presents three issues for our review:


              1. Did the trial court abuse its discretion when it denied
              Welches’s motion, made after the jury had been selected but
              before the jury had been sworn, to have a seated juror switched
              to an alternate juror position?


              2. Did the trial court abuse its discretion in admitting State’s
              Exhibits 1 and 2?


              3. Did the State present sufficient evidence to sustain Welches’s
              convictions?


[2]   We affirm.


                                       Facts & Procedural History


[3]   Welches is the maternal grandfather of K.M., who was born in 2001. Welches

      moved in with K.M.’s family in June 2010. Welches did not have a separate

      room, but rather stayed in the living room and slept on the couch as the

      arrangement was intended to be temporary. K.M. and Welches had a close

      relationship and they often did things together, such as playing board games,

      watching television, going to McDonald’s or out for ice cream, or taking rides

      on Welches’s moped. K.M.’s brothers, one older and one younger, interacted

      with Welches but not to the same extent as K.M. K.M.’s mother would

      sometimes leave K.M. and/or her brothers home with Welches when she had

      to go out.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016   Page 2 of 9
[4]   During the summer of 2011, K.M.’s relationship with Welches changed. One

      day while K.M. was home alone with Welches, Welches, who was on a couch

      in the living room and covered up by a blanket, asked K.M. to come over to

      him. K.M. lifted the blanket and saw that Welches had pulled his pants down

      and that his penis was exposed. K.M. then went to her room. A couple of days

      later, K.M. was on the couch with Welches when he told her to touch his penis

      with her hand. He gave her instructions and demonstrated how she was to

      stroke his penis with up and down movements. K.M. touched Welches’s penis,

      which was soft at first and then it got harder. She continued rubbing his penis

      until he told her to stop. This occurred about once a week for the rest of the

      summer. In addition to K.M. touching Welches’s penis, Welches would put his

      hands down K.M.’s pants and touch her vagina. K.M. did not tell anyone

      about what Welches was doing with her because Welches told her not to and

      she did not think it was wrong at the time.


[5]   Welches moved out of K.M.’s home at some point after K.M. started fourth

      grade. K.M. eventually told her mother what had occurred. K.M.’s mother

      told K.M.’s father, who then called the police. K.M. was interviewed at the

      CASIE Center on March 29, 2012, during which she disclosed that she had

      been sexually abused. K.M. was also physically examined by a nurse. K.M.

      indicated that she understood the nurse would be examining her “down there

      because that’s where her grandfather had touched her.” Transcript at 421.


[6]   During the summer when the molestations occurred, K.M.’s mother noticed a

      change in K.M.’s behavior and her physical well-being such that she sought

      Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016   Page 3 of 9
      medical advice. K.M. was diagnosed with anxiety and it was recommended

      that she see a counselor. Although she did not realize it at the time, K.M.’s

      mother later considered some of the behavior she saw between K.M. and

      Welches to be inappropriate especially in light of what K.M. had since

      disclosed.


[7]   On January 16, 2013, the State charged Welches with two counts of Class C

      felony child molesting. A four-day jury trial commenced on October 26, 2015.

      After the jury had been selected but before the jury was sworn, Welches moved

      to have one of the seated jurors switched with an alternate juror because the

      seated juror lived near the victim’s home. The trial court denied Welches’s

      motion and the seated juror remained on the jury. At the conclusion of the

      evidence, the jury found Welches guilty of both counts of child molesting. The

      trial court sentenced Welches to consecutive terms of eight years. Welches now

      appeals. Additional facts will be provided where necessary.


                                       1. Request to Switch Juror


[8]   Welches argues that the trial court abused its discretion when it denied his

      motion to switch a seated juror to an alternate juror position and replace him

      with the alternate juror. “A defendant is entitled as a matter of right only to an

      impartial jury, Ind. Const. Art. I, § XIII, and not to one of his precise choosing

      where the issue is merely replacing a regular juror with an alternate.” Jervis v.

      State, 679 N.E.2d 875, 882 (Ind. 1997). Indeed, Indiana Trial Rule 47(B) allows

      alternate jurors to replace regular jurors “who, prior to the time the jury returns


      Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016   Page 4 of 9
       its verdict, become or are found to be unable or disqualified to perform their

       duties.” Trial courts have significant leeway in determining whether to replace

       a juror with an alternate, and we will reverse only if there was an abuse of

       discretion. Harris v. State, 659 N.E.2d 522, 525 (Ind. 1995); Ferry v. State, 453

       N.E.2d 207, 213 (Ind. 1983).


[9]    At the start of the second day of trial, after the jury had been chosen but before

       the jury was sworn, Welches informed the court that he had “second thoughts”

       about one of the jurors because he “sort of recognizes the guy.” Transcript at

       246. Welches noted that because that juror lived in close proximity to the

       victim and her family, his concern was that the juror might recognize the victim

       or some of the witnesses at trial and thus, might be biased against him.


[10]   In denying Welches’s motion, the trial court aptly noted that if there was a

       concern about the juror’s ability to render an impartial decision, such would

       similarly affect his ability to serve as an alternate juror. The trial court then

       considered the merits of Welches’s request and, concluding that Welches had

       presented no grounds upon which to excuse the juror, denied Welches’s

       motion.


[11]   We agree with the trial court. During voir dire, defense counsel explicitly asked

       the juror whether he was familiar with the victim or any of the potential

       witnesses. The juror indicated that he was not and assured defense counsel that

       if he recognized anyone he would let the trial court know. Welches did not use

       a peremptory challenge to remove the juror from the jury panel. Aside from his


       Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016   Page 5 of 9
       own self-serving assertion that he “sort of recognizes the guy” and that the juror

       might be biased because he lives near the victim, there is no indication in the

       record of any potential bias on the part of the juror. The trial court did not

       abuse its discretion in denying Welches’s request to move the juror to an

       alternate juror position.1


                                           2. Admission of Evidence


[12]   Welches argues that the trial court abused its discretion in admitting into

       evidence Exhibits 1 and 2,2 which he described as “cute” photographs of the

       victim. Appellant’s Brief at 8. He asserts that because her age was not an issue at

       trial, the probative value of the photographs was outweighed by unfair

       prejudice. Trial courts have broad discretion in ruling on the admissibility of

       evidence. Palilonis v. State, 970 N.E.2d 713, 725 (Ind. Ct. App. 2012), trans.

       denied. We review the admission of photographic evidence for an abuse of

       discretion. Corbett v. State, 764 N.E.2d 622, 627 (Ind. 2002). An abuse of

       discretion occurs when the trial court’s ruling is clearly against the logic and

       effect of the facts and circumstances before it. Palilonis, 970 N.E.2d at 725.




       1
         Welches also notes that he had peremptory challenges remaining at the conclusion of voir dire and asserts
       that it was his right to exercise them. Welches, however, chose not to exercise his peremptory challenge to
       excuse the juror from the jury panel during voir dire and made no request to do so when he raised his concern
       about the juror prior to the jury being sworn. At that point, Welches sought only to switch the juror with an
       alternate juror, not dismiss the juror with a peremptory challenge. Welches cannot use this choice as a basis
       for finding that the trial court abused its discretion.
       2
        The pictures depict K.M. around the time the molestations occurred. Exhibit 1 is a photograph of K.M.
       during the spring of her third grade year and Exhibit 2 is a photograph of K.M. on the first day of fourth
       grade.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016         Page 6 of 9
[13]   Indiana Evidence Rule 402 provides that relevant evidence is generally

       admissible and irrelevant evidence is not admissible. Under Indiana Evidence

       Rule 401, “[e]vidence is relevant if (a) it has any tendency to make a fact more

       or less probable than it would be without the evidence; and (b) the fact is of

       consequence in determining the action.”


[14]   The age of the victim is an essential element of the crime of child molesting.

       Thus, contrary to Welches’s claim, the photographs were relevant as they

       provided additional proof for the State in establishing K.M.’s age at the time of

       the molestations. The fact that the pictures depicted K.M. as “cute” does not

       detract from their relevancy nor does it render them unfairly prejudicial.

       Welches has not established that the trial court abused its discretion in

       admitting Exhibits 1 and 2.


                                      3. Sufficiency of the Evidence


[15]   Welches argues that the evidence is insufficient to sustain his convictions. Our

       standard of reviewing challenges to the sufficiency of the evidence supporting a

       criminal conviction is well settled.


               When reviewing a challenge to the sufficiency of the evidence
               underlying a criminal conviction, we neither reweigh the
               evidence nor assess the credibility of witnesses. The evidence—
               even if conflicting—and all reasonable inferences drawn from it
               are viewed in a light most favorable to the conviction. “[W]e
               affirm if there is substantial evidence of probative value
               supporting each element of the crime from which a reasonable
               trier of fact could have found the defendant guilty beyond a


       Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016   Page 7 of 9
               reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind.
               2004).


       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Further, a conviction for child

       molesting may be based solely on the uncorroborated testimony of the victim.

       Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).


[16]   To sustain a conviction for child molesting as a Class C felony, the State was

       required to prove that Welches knowingly performed or submitted to fondling

       or touching with K.M., a child under fourteen years of age, with the intent to

       arouse or satisfy his sexual desires or the sexual desires of K.M. See Ind. Code §

       35-42-4-3(b). The State alleged for each count that the molestation occurred

       between July 1, 2010 and August 31, 2011, which is the time period Welches

       lived with K.M.’s family.


[17]   In arguing that the evidence is insufficient to sustain his convictions, Welches

       simply challenges the credibility of K.M., pointing to evidence that he claims

       shows he was never alone with K.M. during the period of time the molestations

       were alleged to have occurred. Welches specifically relies on K.M.’s mother’s

       testimony that she did not recall ever leaving K.M. alone with Welches. K.M.’s

       mother qualified this testimony, however, by acknowledging that she may have

       left K.M. at home with Welches and K.M.’s brothers, who generally stayed in

       their rooms and kept to themselves. Thus, contrary to Welches’s claim, even

       this testimony does not foreclose the possibility that there were opportunities for

       Welches to be alone with K.M. during the timeframe when K.M. said the

       molestations occurred.
       Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016   Page 8 of 9
[18]   Nevertheless, K.M. unequivocally and consistently testified that there were

       times when she was alone with Welches and that during some of those times,

       he sexually molested her. The jury as the trier of fact was tasked with assessing

       the credibility of the witnesses. Welches’s argument is simply asking this court

       to reweigh the evidence or assess the credibility of the witnesses, a task we will

       not undertake on appeal. K.M.’s testimony provides sufficient evidence to

       sustain Welches’s convictions for child molesting as Class C felonies.


[19]   Judgment affirmed.


[20]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1512-CR-2249 | September 13, 2016   Page 9 of 9
