MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Nov 02 2015, 9:04 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Corey L. Scott                                          Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Jodi Kathryn Stein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

O.L.,                                                   November 2, 2015
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        49A04-1501-JV-42
        v.                                              Appeal from the Marion Superior
                                                        Court, Juvenile Division
State of Indiana,                                       The Honorable Geoffrey Gaither,
Appellee-Petitioner                                     Magistrate
                                                        Trial Court Cause No.
                                                        49D09-1405-JD-1289



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 1 of 10
                               Case Summary and Issues
[1]   The juvenile court adjudicated O.L. a delinquent for committing child

      molesting and criminal deviate conduct, both Class B felonies if committed by

      an adult. O.L. appeals his adjudication, raising two issues for review: 1)

      whether the State presented sufficient evidence to support the juvenile court’s

      true finding of child molesting; and 2) whether the juvenile court erred in

      admitting double hearsay testimony that was used to establish an element of

      criminal deviate conduct. We conclude there is sufficient evidence to support

      the delinquency adjudication for child molesting. As to criminal deviate

      conduct, we do not examine O.L.’s double hearsay argument because we

      conclude O.L.’s adjudication for criminal deviate conduct violates the Double

      Jeopardy Clause of the Indiana Constitution. Accordingly, we affirm O.L.’s

      adjudication as a delinquent for child molesting but reverse O.L.’s criminal

      deviate conduct adjudication and remand to the juvenile court with instructions

      to vacate the true finding of criminal deviate conduct.



                            Facts and Procedural History
[2]   In May 2014, Gregory Webster and his wife, Michelle Dillow, had several

      family friends over to their home in Indianapolis, including Angela Lewis and

      her fifteen-year-old son, O.L. Webster’s and Dillow’s five year-old daughter,

      C.W., was in her bedroom with the door closed. Webster and Dillow preferred

      to keep the doors to their children’s rooms open. After noticing that C.W.’s

      door was closed, Webster entered C.W.’s room. When Webster opened the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 2 of 10
      door, he observed O.L. with his pants down and his penis in C.W.’s mouth.

      Webster immediately began hitting O.L. and chased him from the bedroom.

      Webster followed O.L. from the bedroom, told Dillow what he observed, and

      told her to call the police. While Webster was chasing O.L. outside the home,

      Dillow attempted to comfort C.W. and asked her what happened in the

      bedroom. C.W. told Dillow that O.L. “had put his thing in her mouth and

      daddy seen it,” transcript at 23, and threatened her not to tell anyone.


[3]   An officer for the Indianapolis Metropolitan Police Department (“IMPD”)

      located O.L. and transported him to the office of Detective Christopher

      Lawrence, IMPD’s on-call child abuse detective, to be interviewed. O.L.

      denied the allegations, but stated he had “learned his lesson.” Id. at 125.

      Detective Lawrence arrested O.L. and applied for a search warrant to obtain

      evidence from O.L.’s person and seize his clothing. A forensic examination

      revealed C.W.’s DNA on the head of O.L.’s penis and on the red boxer shorts

      seized from O.L.


[4]   The State filed a delinquency petition against O.L. alleging he was a delinquent

      child for having committed the following acts: child molesting and criminal

      deviate conduct by using force or the imminent threat of force. The juvenile

      court held a fact-finding hearing at which Webster and Dillow both testified,

      and the State introduced into evidence the red boxer shorts and penile gland

      swabs on which C.W.’s DNA was found. O.L. testified and denied the

      allegations. O.L. offered the testimony of his mother, who stated that Webster

      fabricated the story because she was going to tell his wife he was cheating on

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 3 of 10
      her. Lewis and O.L.’s father both testified that they had never seen the red

      boxer shorts before. O.L. also offered the testimony of his brother, J.L., who

      was playing in the backyard at the time of the incident; J.L. stated he could see

      into C.W.’s bedroom window from the backyard and O.L. never had his pants

      down. Finally, O.L. offered testimony from his friend, R.H., who played

      basketball with O.L. earlier in the day and testified that O.L. was wearing white

      undergarments. The juvenile court found O.L. to be delinquent for having

      committed the acts alleged and placed him on probation. O.L. now appeals.



                                Discussion and Decision
                                     I. Standard of Review
[5]   A finding that a juvenile has committed a delinquent act must be based upon

      proof beyond a reasonable doubt. Ind. Code § 31-37-14-1. When a juvenile

      challenges the sufficiency of that proof, we neither reweigh the evidence nor

      assess the credibility of the witnesses. D.H. v. State, 932 N.E.2d 236, 237-38

      (Ind. Ct. App. 2010). We look to the evidence and reasonable inferences

      supporting the judgment, and if there is evidence of probative value from which

      a reasonable fact-finder could find the juvenile delinquent beyond a reasonable

      doubt, we will affirm. Id. at 238.


                                       II. Child Molesting
[6]   O.L. was adjudicated a delinquent child for committing child molesting, a Class

      B felony if committed by an adult. In order for O.L. to be adjudicated a


      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 4 of 10
      delinquent child for committing child molesting, the State had to prove that

      O.L. performed or submitted to deviate sexual conduct with a child under

      fourteen years of age. Ind. Code § 35-42-4-3(a) (2007). At the fact-finding

      hearing, in addition to the eyewitness testimony of Webster, the State

      introduced into evidence the red boxer shorts and penile gland swabs taken

      from O.L., both of which contained C.W.’s DNA.


[7]   O.L. argues the evidence is insufficient to support his adjudication because the

      testimony of “multiple witnesses, including Webster’s wife, . . . cast serious

      doubt on Mr. Webster’s version of events.” Brief of Appellant/Defendant at 7.

      Specifically, he points to his mother’s testimony that Webster fabricated his

      version of events in response to her intention to tell Dillow that Webster was

      cheating on her, his brother’s testimony that O.L. never had his pants down in

      C.W.’s room, and his friend’s testimony that O.L. was wearing white

      undergarments earlier in the day. The conflict between Webster’s and Dillow’s

      testimony and that of O.L.’s mother, father, brother, and friend is a matter of

      the credibility of those witnesses for the fact-finder to sort out. “[I]t is precisely

      within the domain of the trier of fact to sift through conflicting accounts of

      events. Not only must the fact-finder determine whom to believe, but also what

      portions of conflicting testimony to believe.” Atwood v. State, 905 N.E.2d 479,

      484 (Ind. Ct. App. 2009) (alteration in original) (quoting In re J.L.T., 712

      N.E.2d 7, 11 (Ind. Ct. App. 1999)), trans. denied. Furthermore, this testimony

      does not, as O.L. argues, refute or “cast serious doubt” on the fact that C.W.’s

      DNA was discovered on the head of O.L.’s penis and on his red boxer shorts.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 5 of 10
[8]    Based on our review of the evidence most favorable to the adjudication, we

       conclude that sufficient evidence exists to support the juvenile court’s finding

       that O.L. committed child molesting. C.W. was five years-old at the time of the

       incident, Webster testified he witnessed O.L.’s penis in C.W.’s mouth, and a

       forensic examination uncovered C.W.’s DNA on O.L.’s penis and red boxer

       shorts. The State presented sufficient evidence to prove the act of child

       molesting.


                              III. Criminal Deviate Conduct
[9]    The second issue presented by O.L. is whether the juvenile court erred in

       admitting “double hearsay” testimony. O.L. was adjudicated a delinquent

       child for knowingly or intentionally causing another person to perform or

       submit to deviate sexual conduct when the other person is compelled by force

       or the imminent threat of force. Ind. Code § 35-42-4-2(a)(1) (1998). At the fact-

       finding hearing, Detective Lawrence testified over O.L.’s objection that

       “Michelle [Dillow] said [C.W.] told her that [O.L.] had pulled his pants down

       and told her to put his private in her mouth. She also said that [O.L.] told her

       that if she told, he would beat here [sic].” Tr. at 132. O.L. contends his

       criminal deviate conduct adjudication requires a showing of force or threat of

       force, and the only evidence produced by the State proving that element is the

       double hearsay statement made by Detective Lawrence.


[10]   Hearsay is an out-of-court statement offered to prove the truth of the matter

       asserted and is inadmissible unless it falls under a specific hearsay exception.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 6 of 10
       Ind. Evidence Rule 801; see also Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct.

       App. 2012). If the statement involves hearsay within hearsay, also known as

       double hearsay, the statement may be admitted only if “each part of the

       combined statements conforms with an exception to the rule.” Evid. R. 805; see

       also Mayberry v. State, 670 N.E.2d 1262, 1267 (Ind. 1996) (“[E]ach level of

       hearsay must qualify under an exception to the hearsay rule.”). However, we

       need not examine each level of Detective Lawrence’s statement to determine if

       its admission was error because the State concedes, and we agree, that O.L.’s

       adjudication for criminal deviate conduct must be reversed because it violates

       the Double Jeopardy Clause of the Indiana Constitution.


[11]   Article 1, Section 14 of the Indiana Constitution provides in part, “No person

       shall be put in jeopardy twice for the same offense.” In analyzing this principle,

       our supreme court has explained:


               [T]wo or more offenses are the “same offense” in violation of
               Article [1], Section 14 of the Indiana Constitution, if, with respect
               to either the statutory elements of the challenged crimes or the
               actual evidence used to convict, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense.

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). Thus,

       a double jeopardy violation exists if there is a reasonable probability that the

       evidentiary facts used to establish the essential elements of one offense may also

       have been used to establish the essential elements of a second challenged

       offense. D.B. v. State, 842 N.E.2d 399, 404 (Ind. Ct. App. 2006).


       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 7 of 10
[12]   In the petition filed in the juvenile court, the State alleged O.L. was a

       delinquent child for committing child molesting, a Class B felony if committed

       by an adult:

               On or about the 22nd day of May, 2014, said child did perform or
               submit to deviate sexual conduct, by placing his penis in the
               mouth of [C.W.], a child who was then under the age of fourteen
               (14) years, that is: 5 (five) years.


       Appellant’s Appendix at 17. The petition also alleged O.L. was a delinquent

       child for committing criminal deviate conduct, a Class B felony if committed by

       an adult:


               On or about the 22nd day of May, 2014, said child did knowingly
               or intentionally cause [C.W.] to perform or submit to deviate
               sexual conduct by placing his penis in the mouth of [C.W.] and
               said [C.W.] was compelled to perform or submit to said conduct
               by force or threat of force.


       Id.


[13]   Here, O.L.’s act of placing his penis in C.W.’s mouth was an essential element

       of both criminal deviate conduct and child molesting. Furthermore, Webster

       only testified to witnessing a single instance of this act, and the State’s closing

       argument addressed only one incident in support of the two allegations. Thus,

       there is a “reasonable probability” the juvenile court used the same facts to

       establish the essential elements of both child molesting and criminal deviate

       conduct. See D.B., 842 N.E.2d at 404 (holding there was a reasonable

       possibility the juvenile court used testimony of only one instance of
       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 8 of 10
       nonconsensual sexual intercourse to establish the essential elements of both

       rape and child molesting).


[14]   A reviewing court may remedy a double jeopardy violation “by reducing either

       conviction to a less serious form of the same offense if doing so will eliminate

       the violation. If it will not, one of the convictions must be vacated.”

       Richardson, 717 N.E.2d at 54 (citation omitted). The reviewing court will make

       this determination itself, “being mindful of the penal consequences that the trial

       court found appropriate.” Id. Neither child molesting nor criminal deviate

       conduct can be reduced to a less serious offense than a Class B felony. As to

       which finding should be vacated to remedy the violation, we note the juvenile

       court ordered O.L. be placed on probation, rather than committing him to the

       Department of Correction, which it could have done upon a proper finding that

       O.L. had committed criminal deviate conduct. See Ind. Code § 31-37-19-9; see

       also D.B., 842 N.E.2d at 404 (determining that because the juvenile court

       committed the juvenile to DOC upon true findings of rape and child molesting,

       vacating the true finding of child molesting would allow the juvenile court’s

       disposition to stand).1 Further, the State agrees the criminal deviate conduct




       1
         In determining how to remedy the violation, we are also mindful of the evidentiary issue O.L. raised with
       respect to the criminal deviate conduct adjudication.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015            Page 9 of 10
       finding should be vacated. Therefore, to remedy the double jeopardy violation,

       we reverse O.L’s adjudication for criminal deviate conduct.



                                               Conclusion
[15]   The State presented sufficient evidence to support the juvenile court’s

       adjudication of O.L. as a delinquent child for committing child molesting.

       However, O.L.’s adjudication as a delinquent child for criminal deviate conduct

       violates the state constitutional prohibition against double jeopardy.

       Accordingly, we affirm O.L.’s adjudication for child molesting, reverse his

       adjudication for criminal deviate conduct, and remand to the juvenile court

       with instructions to vacate the true finding of criminal deviate conduct.


[16]   Affirmed in part, reversed and remanded in part.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-JV-42 | November 2, 2015   Page 10 of 10
