MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                   Feb 25 2019, 9:09 am
regarded as precedent or cited before any
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
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

K.S.,                                                    February 25, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-JV-1826
        v.                                               Appeal from the
                                                         Vanderburgh Superior Court
State of Indiana,                                        The Honorable
Appellee-Petitioner.                                     Brett J. Niemeier, Judge
                                                         The Honorable
                                                         R.A. Ferguson, Magistrate
                                                         Trial Court Cause No.
                                                         82D04-1802-JD-257



Kirsch, Judge




Court of Appeals of Indiana | Memorandum Decision 18A-JV-1826| February 25, 2019            Page 1 of 6
[1]   K.S. appeals his juvenile adjudication for what would be Level 4 felony child

      molesting1 if committed by an adult, raising two issues, which we consolidate

      and restate as follows: whether there was sufficient evidence to support his

      adjudication.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On January 23, 2018, R.S., who was seven years old, told her mother that K.S.,

      her fourteen-year-old step-brother, had been “humping” her. Tr. Vol. II at 8; 10-

      11, 14, 21-22, 27, 30. R.S. said that when K.S. would hump her, both her pants

      and K.S.’s pants were down. Id. at 28. She also said that K.S. put his “ding-a-

      ling,” R.S.’s word for penis, into “in [her] butt.” Id. at 30; State’s Ex. 2, 3. This

      occurred more than two times. Tr. Vol. II at 31-32. On one occasion, K.S. put

      his fingers in R.S.’s “private part,” which she indicated on a diagram of a

      female child as her vaginal area. Id. at 29, 32; State’s Ex. 2. K.S. threatened

      R.S. that “something would happen to [her]” and that he would punch her in

      the eye if she told anyone. Tr. Vol. II at 24, 32.


[4]   The day after R.S. told her mother what K.S. had done, R.S.’s mother took her

      to the hospital. Id. at 7, 13. After R.S. told medical personnel that her “private




      1
          See Ind. Code § 35-42-4-3(b).



      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1826| February 25, 2019   Page 2 of 6
      part” hurt when she used the bathroom, she was diagnosed with a urinary tract

      infection. Id. at 13, 35.


[5]   On February 7, 2018, the State filed a delinquency petition alleging that K.S.

      had committed child molesting under Indiana Code section 35-42-4-3(a), which

      would be a Level 3 felony if committed by an adult, and child molesting under

      Indiana Code section 35-42-4-3(b), which would be a Level 4 felony if

      committed by an adult. Appellant’s App. Vol. II at 17-18. The State alleged that

      K.S. had inappropriately touched R.S., who was less than fourteen years old.

      Id.


[6]   At the end of the March 26, 2018 fact-finding hearing, the trial court took the

      matter under advisement. Later that day, it adjudicated K.S. to be a delinquent

      child as to Count 2, child molesting as a Level 4 felony, but not on Count 1,

      child molesting as a Level 3 felony, because the State failed to prove

      penetration. Id. at 11. At the dispositional hearing, the trial court placed K.S.

      under the supervision of the Vanderburgh County Probation Department at the

      Sexually Maladaptive Youth Program. Id. at 12.


[7]   Appellate counsel failed to file a timely Notice of Appeal. New appellate

      counsel was appointed, and on July 26, 2018, K.S. filed a Petition for Post-

      Conviction Relief, seeking permission under Post-Conviction Rule 2(3) to file a

      belated Notice of Appeal. The trial court granted the request, and counsel filed

      the Notice of Appeal on July 30, 2018. Id. at 2. K.S. now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1826| February 25, 2019   Page 3 of 6
                                       Discussion and Decision2
[8]   K.S. alleges the State failed to present sufficient evidence for his adjudication as

      a delinquent child for what would be Level 4 felony child molesting if

      committed by an adult because it failed to prove beyond a reasonable doubt that

      his act of touching R.S. was accompanied by the specific intent to arouse or

      satisfy sexual desires. See Clark v. State, 695 N.E.2d 999, 1002 (Ind. Ct. App.

      1998).


[9]   When reviewing a claim of sufficiency of the evidence with respect to juvenile

      adjudications, we do not reweigh the evidence or judge the credibility of

      witnesses. D.W. v. State, 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans.

      denied. We look only to probative evidence supporting the adjudication and the

      reasonable inferences that may be drawn from that evidence to determine

      whether a reasonable trier of fact could conclude the juvenile was guilty beyond

      a reasonable doubt. Id. If there is substantial evidence of probative value to

      support the adjudication, we will not set it aside. Id. The uncorroborated

      testimony of one witness may be sufficient by itself to sustain an adjudication of

      delinquency on appeal. Id. Evidence “need not overcome every reasonable

      hypothesis of innocence; it is sufficient so long as ‘an inference may reasonably




      2
        K.S. asks this court to affirm the trial court’s ruling that allowed him to file a belated Notice of Appeal and
      let this appeal go forward. A juvenile may not bring a belated appeal pursuant to Post-Conviction Rule 2 but
      must instead file a Trial Rule 60 motion for relief from judgment in the trial court. See Haluska v. State, 663
      N.E.2d 1193, 1194 (Ind. Ct. App. 1996). However, because the State does not object to K.S.’s request, and
      reviewing K.S.’s substantive issue on the merits serves judicial economy, we choose to let the appeal proceed.

      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1826| February 25, 2019                     Page 4 of 6
       be drawn from it to support the verdict.’” Lock v. State, 971 N.E.2d 71, 74 (Ind.

       2012) (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)).


[10]   “A person who, with a child under fourteen (14) years of age, performs or

       submits to any fondling or touching, of either the child or the older person, with

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

       person, commits child molesting, a Level 4 felony.” Ind. Code § 35-42-4-3(b).

       Mere touching alone is not sufficient to constitute child molesting. Bowles v.

       State, 737 N.E.2d 1150, 1152 (Ind. 2000). 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. Intent may be established by

       circumstantial evidence and may be inferred from the actor’s conduct. Id.


[11]   Here, it was reasonable for the fact-finder to infer that K.S. intended to satisfy

       either his or R.S.’s sexual desires. Placing his penis in R.S.’s “butt” and

       inserting his fingers into her vagina support the inference that he intended to

       arouse or satisfy sexual desires. Also, R.S.’s statement that K.S. was

       “humping” her supports the same inference. “Humping” is commonly

       understood as touching of a sexual nature, including intercourse. Merriam-

       Webster’s dictionary defines the verb “hump” as “usually vulgar: to copulate

       with.” See hump, available at https://www.merriam-

       webster.com/dictionary/hump (last visited Feb. 15, 2019). These facts support

       the inference that K.S. intended to satisfy his or R.S.’s sexual desires. See

       Bowles, 737 N.E.2d at 1152-53. Therefore, the evidence was sufficient to



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1826| February 25, 2019   Page 5 of 6
       support K.S.’s adjudication as a delinquent child for what would be Level 4

       felony child molesting if committed by an adult.


[12]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1826| February 25, 2019   Page 6 of 6
