MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jan 04 2018, 10:40 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Curtis T. Hill, Jr.,
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Maman Bachir Dankassoua,                                 January 4, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1706-CR-1370
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1606-F1-22200



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018            Page 1 of 9
                                             Case Summary
      Maman Bachir Dankassoua appeals his conviction and sentence for Level 1

      felony child molesting. We affirm.


                                                    Issues
      The issues before us are:


              I.      whether sufficient evidence exists to sustain Dankassoua’s
                      conviction; and


              II.     whether Dankassoua’s twenty-five-year sentence is
                      inappropriate.


                                                     Facts
[1]   Dankassoua married T.S. in 2010. Although they separated in 2013, at the time

      of the relevant events, Dankassoua still visited T.S.’s household in Indianapolis

      approximately once each month. T.S. has three children, Am.S. (age 21), A.P.

      (age 11), and A.S. (age 1). On June 6, 2016, Dankassoua visited T.S.’s home.

      He tried to persuade her to have sex with him, but she refused. T.S. left for

      work, and Dankassoua remained at her home. A.P. was on the living room

      sofa, and Am.S. and A.S. were in a bedroom. Dankassoua sat next to A.P. on

      the sofa. Using his hand, he touched “inside” between A.P.’s legs. Tr. Vol. II

      p. 71. He also forced A.P. to touch his penis with her hand.


[2]   Am.S emerged from the bedroom with A.S., then returned to retrieve an item.

      A.S. went into the living room. As A.S. entered the living room, “A.P. made a


      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018   Page 2 of 9
      loud thump to the floor like she was jumping or something.” Id. at 50. Am.S.

      re-emerged from the bedroom, went into the living room, and told A.P. that she

      was going to “tell[ ] on her” and “call . . . mom.” Id. at 50, 84. Am.S. later

      testified that she intended to scare A.P. into being less noisy, when she

      threatened to call their mother. Am.S. went back into the bedroom. A.P.

      called to Am.S. and said that Dankassoua wanted to speak with her. When

      Am.S. did not respond, A.P. and Danksassoua entered the bedroom.

      Dankassoua asked, “[W]hy are you going to tell your mom? Why are you

      going to tell your mom.” Id. at 51. “He looked worried and [said,] ‘[he] was

      just telling [A.P.] about boys.’” Id. Dankassoua told Am.S. that “he was

      explaining to [A.P.], like, how the body works and things like that.” Id. at 52.

      Am.S. became concerned and tried telephoning T.S.; unable to reach her,

      Am.S. sent T.S. a text message. Am.S. also called her grandmother.


[3]   T.S. returned Am.S.’s call and asked to speak to A.P, who spoke to her mother

      privately. T.S. returned home soon thereafter and asked Dankassoua “what did

      he do to my daughter.” Id. at 100. Dankassoua “was telling [T.S.] that he

      didn’t do anything at first”; then, “he told [T.S.] he was sorry.” Id. The

      children’s grandmother and aunts arrived, and T.S.’s sister called the police.

      The police and the Department of Child services referred A.P. to the St.

      Vincent Hospital emergency room.


[4]   On June 10, 2016, the State charged Dankassoua with one count of Level 1

      felony child molesting and one count of Level 4 felony child molesting. He was

      tried by a jury on May 4-5, 2017. At trial, A.P. was asked to circle on a

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018   Page 3 of 9
      diagram of the female body the part of her body that Dankassoua touched; she

      circled the genital area. When asked, “A.P. did [Dankassoua]’s hand touch

      you inside between your legs, or outside, or something else,” A.P. responded,

      “Inside.” Id. at 71. She testified further that Dankassoua touched her genitalia

      underneath her undergarments. A.P. also testified that she had touched

      Dankassoua’s genitalia “under” his underwear with her hand “[b]ecause he

      kept grabbing my hand and then he made me touch it.” Id. at 72, 73.


[5]   Nurse Ashli Smiley of St. Vincent Hospital testified that she was the responding

      sexual assault nurse examiner for A.P. Nurse Smiley’s sexual assault

      examination of A.P. revealed “isolated” evidence of what may have been

      bodily fluid on A.P.’s right middle finger. Id. at 149. Nurse Smiley testified

      that she also observed injuries to A.P.’s internal genitalia, including “redness,

      abrasions, . . . and uptake,” which is the term for the effect of blue Toluidine

      dye “stick[ing] to any skin that is not in tact [sic].” Id. at 154, 155. Nurse

      Smiley testified that injuries in the genital area “heal fairly quickly”; that the

      dye “generally will not stick to a healing injury”; and that the uptake effect she

      observed indicated that A.P.’s injuries were “more open,” which tended to

      suggest that the injury had likely occurred recently. Id. at 170.


[6]   Officer Justin Hickman of the Indianapolis Metropolitan Police Department’s

      Child Abuse Unit testified that he interviewed Dankassoua after the alleged

      molestation. He testified that Dankassoua “asked to use the restroom” before

      the interview, and was notified that he would be observed “the entire time.” Id.

      at 227. Hickman testified that “when [Dankassoua] approached the toilet, he

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018   Page 4 of 9
      immediately . . . grabbed a hand full [sic] of toilet paper . . . and began

      vigorously cleaning, or wiping his genitals”; before Officer Hickman could

      collect the toilet paper for testing, Dankassoua “dropped [it] into the . . . toilet

      bowl.” Id. at 228.


[7]   The jury returned guilty verdicts on both counts. At Dankassoua’s sentencing

      hearing on May 30, 2017, the trial court vacated the Level 4 felony conviction

      due to double jeopardy concerns. Counsel for Dankassoua asserted, as

      mitigating, that the instant conviction was Dankassoua’s only criminal

      conviction and that he suffered from “life-threatening and life ending” cirrhosis

      of the liver with an “extremely poor” prognosis. Tr. Vol. III p. 28. In his

      statement to the trial court, Dankassoua stated that he “d[id] not feel guilty of

      what [he was] accused of”; that the molestation allegations stemmed from

      T.S.’s anger that Dankassoua had stopped helping her financially; and

      maintained that “you have to be almost evil to touch a child and it’s not

      something [he was] able to do.” Id. at 30-31.


[8]   In sentencing Dankassoua, the trial court found, as aggravating circumstances

      that he had violated his position of trust as A.P.’s stepfather. The trial court

      also noted that it had “considered the mitigators brought up by” defense

      counsel. Id. at 31. The trial court sentenced him to serve twenty-five years

      executed in the Department of Correction; ordered him to register as a lifetime

      registrant on the sex offender registry; designated him a credit-restricted felon

      pursuant to Indiana Code Section 35-31.5-2-72; imposed a $100 fine; and

      deemed him a sexually violent predator. Dankassoua now appeals.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018   Page 5 of 9
                                                   Analysis
                                       I. Sufficiency of the Evidence

[9]    Dankassoua first challenges the sufficiency of the evidence supporting his

       conviction for Level 1 felony child molesting. When analyzing a claim of

       insufficient evidence to support a conviction, we must consider only the

       probative evidence and reasonable inferences supporting the verdict. Sallee v.

       State, 51 N.E.3d 130, 133 (Ind. 2016). “It is the fact-finder’s role, not that of

       appellate courts, to assess witness credibility and weigh the evidence to

       determine whether it is sufficient to support a conviction.” Id. The evidence

       does not have to overcome every reasonable hypothesis of innocence, and it is

       sufficient if an inference may reasonably be drawn to support the verdict. Id.


[10]   In order to convict him of Level 1 felony child molesting, the State was required

       to prove that Dankassoua, a person of at least twenty-one years of age,

       knowingly or intentionally performed sexual intercourse or other sexual

       conduct with A.P., a child under fourteen years of age. Ind. Code § 35-42-4-3.

       “Other sexual conduct” includes “the penetration of the sex organ . . . of a

       person by an object.” I.C. § 35-31.5-2-221.5. The term “object” includes a

       finger. See D’Paffo v. State, 778 N.E.2d 798, 802 (Ind. Ct. App. 2002).


[11]   On appeal, Dankassoua does not deny touching A.P.; rather, he challenges the

       sufficiency of the State’s evidence to prove that he committed an act of

       penetration. Proof of the slightest penetration is sufficient to sustain

       convictions for child molesting. Dinger v. State, 540 N.E.2d 39, 40 (Ind. 1989).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018   Page 6 of 9
       Further, we have held that penetration of external genitalia is sufficient to

       sustain a conviction for child molesting. Short v. State, 564 N.E.2d 553, 558

       (Ind. Ct. App. 1991) (holding that our statute defining sexual intercourse does

       not require that the vagina be penetrated, only that the female sex organ,

       including the external genitalia, be penetrated).


[12]   In Scott v. State, 771 N.E.2d 718 (Ind. Ct. App. 2002), disapproved on other

       grounds by Louallen v. State, 778 N.E.2d 794, 798 n.3 (Ind. 2002), the defendant

       allegedly penetrated a minor child’s sex organ with his finger. At trial, the child

       testified that the defendant had put his finger in her “private.” Id. at 724. In

       concluding that sufficient evidence existed to sustain the defendant’s

       conviction, we reasoned, “Upon testifying that [the defendant] inserted his

       finger into her ‘private,’ and that she used her ‘private’ to go to the restroom,

       [the child] provided information upon which the jury could determine that [the

       defendant] had inserted his finger into her external genitalia.” Id. at 725. Such

       is the case here, where A.P. testified that Dankassoua touched “inside” between

       her legs with his hand, and Nurse Smiley testified that the sexual assault

       examination showed injuries to A.P.’s internal genitalia, including “redness,

       abrasions, . . . and uptake. Id. at 67-71, 154, 155. The State presented sufficient

       evidence of an act of penetration from which the jury could conclude beyond a

       reasonable doubt that Dankassoua committed Level 1 felony child molesting.


                                         II. Inappropriate Sentence

[13]   The other issue before us is whether Dankassoua’s sentence is inappropriate

       under Indiana Appellate Rule 7(B) in light of his character and the nature of the
       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018   Page 7 of 9
       offenses. Although Rule 7(B) does not require us to be “extremely” deferential

       to a trial court’s sentencing decision, we still must give due consideration to that

       decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

       also understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. “Additionally, a defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.” Id.


[14]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and myriad other factors that come to light in a

       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[15]   Regarding the nature of the offenses, when Dankassoua’s estranged wife

       rebuffed his advances and left her children alone with him, he touched the

       internal genitalia of eleven-year old A.P. and forced her to touch his penis.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018   Page 8 of 9
       Dankassoua’s actions constituted a breach of trust given that A.P. was his

       stepdaughter and T.S. had entrusted her children into his care. As for

       Dankassoua’s character, he engaged a child—his stepdaughter—in sexual

       activity and then, in an effort to conceal his actions, he lied to and manipulated

       A.P.’s older sister, who had witnessed his suspicious behavior, and tried to

       rationalize his actions. Before being questioned by police, Dankassoua—while

       under police observation—destroyed forensic evidence before the police could

       retrieve and examine it. The sentencing range for a Level 1 felony is from

       twenty to fifty years. Based on the foregoing, we cannot say that the nature of

       Dankassoua’s offense and his character necessarily dictate that his twenty-five-

       year sentence is inappropriate.


                                                 Conclusion
[16]   There is sufficient evidence to sustain Dankassoua’s conviction for Level 1

       felony child molesting. His twenty-five-year sentence is not inappropriate.


       Affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018   Page 9 of 9
