MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Jul 30 2019, 9:53 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
William W. Gooden                                         Curtis T. Hill, Jr.
Mt. Vernon, Indiana                                       Attorney General of Indiana
                                                          Courtney Staton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary L. Wiltshire,                                        July 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-307
        v.                                                Appeal from the Posey Circuit
                                                          Court
State of Indiana,                                         The Honorable James M.
Appellee-Plaintiff.                                       Redwine, Judge
                                                          Trial Court Cause No.
                                                          65C01-1807-F4-341




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-307 | July 30, 2019                    Page 1 of 8
                                             Case Summary
[1]   Gary L. Wiltshire appeals his conviction for child molesting, a Level 4 felony.

      We affirm.


                                                      Issue
[2]   Wiltshire raises one issue on appeal, which we restate as whether the evidence

      is sufficient to convict Wiltshire of child molesting, a Level 4 felony.


                                                      Facts
[3]   On June 10, 2018, L.M., who was ten years old, attended her cousin’s birthday

      party in Mt. Vernon, Indiana. Wiltshire, L.M.’s forty-seven-year-old great-

      uncle, was also in attendance. L.M. was playing in another room when she

      decided to go into the kitchen. Wiltshire was sitting at the kitchen table.

      Wiltshire greeted L.M.; remarked that she looked like her mother; hugged her;

      and then pulled her toward him so that she “sat on his lap a little bit.” Tr. Vol.

      II p. 29. Wiltshire then touched L.M. from her buttocks to her genitals. L.M.

      pushed Wiltshire back and froze. L.M. then sought out her cousin, and both

      found L.M.’s grandmother and told her what happened.


[4]   On July 25, 2018, the State charged Wiltshire with child molesting, a Level 4

      felony. Wiltshire was later arrested on July 26, 2018, as a result of the conduct.

      During an interview with Detective Jeremy Fortune of the Posey County

      Sheriff’s Department, Wiltshire initially denied touching L.M. in any manner.

      Wiltshire told the detective that he consumed approximately half to three-

      quarters of a “Hot Damn” liquor bottle that day and that it was his first time
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-307 | July 30, 2019   Page 2 of 8
      drinking alcohol. When Detective Fortune asked Wiltshire if it was possible

      that he accidentally brushed L.M.’s bottom, Wiltshire responded that he “could

      of [sic].” St. Ex. 3 at 7. Later in the interview, Wiltshire told Detective Fortune

      that he “could of [sic] . . . patted [L.M.] too low,” but he did not recall if he had

      done so. Id. at 23.


[5]   On September 12, 2018, L.M.’s deposition was taken, and she struggled to enter

      the room. L.M. cried and hid her face. To get L.M. to enter the room,

      Wiltshire and Detective Fortune stepped into the hallway. Wiltshire told

      Detective Fortune that he did not want L.M. to suffer and that he would not go

      into the room. At one point, Wiltshire hung his head and said, “I know what

      happened, I know why she’s scared.” Tr. Vol. II p. 54.


[6]   At trial, L.M. described Wiltshire’s actions as “a wipe. He wasn’t slow, it

      wasn’t fast . . . it was medium.” Id. at 30. L.M. testified that the touching was

      not a pat on the bottom. L.M. also testified that Wiltshire touched her, with his

      hand, on the front part of her private area, which she called her “nu-nu.” Id. at

      30-31. On October 23, 2018, a jury found Wiltshire guilty of child molesting, a

      Level 4 felony. The trial court sentenced Wiltshire to six years in the

      Department of Correction, with three years executed. Wiltshire now appeals.


                                                   Analysis
[7]   Wiltshire challenges the sufficiency of the evidence to support his conviction.

      When there is a challenge to the sufficiency of the evidence, “[w]e neither

      reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-307 | July 30, 2019   Page 3 of 8
      210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert.

      denied), cert. denied. Instead, “we ‘consider only that evidence most favorable to

      the judgment together with all reasonable inferences drawn therefrom.’” Id.

      (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

      supported by ‘substantial evidence of probative value even if there is some

      conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

      McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

      there was conflicting evidence, it was “beside the point” because that argument

      “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

      affirm the conviction unless no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

      (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[8]   A person commits child molesting, a Level 4 felony, when “a person . . . with a

      child under fourteen years of age, performs or submits to any fondling or

      touching, of either the child or the older person, with the intent to arouse or to

      satisfy the sexual desires of either the child or the older person.” Indiana Code

      § 35-42-4-3(b). Wiltshire, in his brief, concedes that he touched L.M. in an

      “improper manner.” Appellant’s Br. p. 8. Wiltshire, however, argues that any

      touching was accidental, and “[t]here is no evidence [that] allow[ed] the jury to




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-307 | July 30, 2019   Page 4 of 8
          conclude that the touching was accompanied with the intent to arouse or satisfy

          [Wiltshire’s] sexual desires.” 1 Id. at 7 (internal quotations omitted).


[9]       Wiltshire appears to challenge the “intent to arouse or to satisfy the sexual

          desires” element of the offense, along with the scienter requirement that the act

          must be done “knowingly or intentionally.” Our Indiana Supreme Court has

          explained that the culpability requirement of the child molesting statute is

          “knowingly or intentionally.” See Louallen v. State, 778 N.E.2d 794, 798 (Ind.

          2002). Here, the trial court instructed the jury that:


                    Before you may convict [Wiltshire,] the State must have proved
                    each of the following beyond a reasonable doubt: [Wiltshire]
                    with the intent to arouse or satisfy the sexual desires of L.M., or
                    [himself], when L.M., was a child under fourteen (14) years of
                    age, knowingly did perform or submit to fondling or touching of
                    or by, L.M.


          Tr. Vol. II p. 6. A person engages in conduct “knowingly” if, “when he

          engages in the conduct, he is aware of a high probability that he is doing so.”

          Ind. Code § 35-41-2-2(b).




      1
        In support of his argument, Wiltshire relies on the test that was set forth in T.G. v. State, 3 N.E.3d 19 (Ind. Ct.
      App. 2014), trans. denied, and utilized in D.P. v. State, 80 N.E.3d 914 (Ind. Ct. App. 2017). Both T.G. and D.P
      involved the interpretation of Indiana Code Section 35-42-4-3(b) in the context of juvenile defendants. At the
      time of the incident, Wiltshire was forty-seven years old. Wiltshire was not a minor, therefore, the test that was
      set forth in T.G. is not applicable here.



          Court of Appeals of Indiana | Memorandum Decision 19A-CR-307 | July 30, 2019                            Page 5 of 8
[10]   When determining whether an adult touched a child under fourteen years old

       with the intent to arouse or satisfy sexual desires, “[t]he intent element of child

       molesting may be established by circumstantial evidence and may be inferred

       from the actor’s conduct and the natural and usual sequence to which conduct

       usually points.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000) (citing Clark

       v. State, 695 N.E.2d 999, 1002 (Ind. Ct. App. 1998), trans. denied). Moreover,

       “the intent to arouse or satisfy sexual desires may be inferred from evidence that

       the accused intentionally touched a child’s genitals.” Lockhart v. State, 671

       N.E.2d 893, 903 (Ind. Ct. App. 1996) (citing Short v. State, 564 N.E.2d 553, 559

       (Ind. Ct. App. 1991)). “Mere touching alone is insufficient to constitute the

       crime of child molesting.” Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App.

       2011) (citing Nuerge v. State, 677 N.E.2d 1043, 1048 (Ind. Ct. App. 1997), trans.

       denied), trans. denied.


[11]   Furthermore, “a child’s uncorroborated testimony is sufficient to sustain a

       conviction.” Carter v. State, 754 N.E.2d 877, 880 (Ind. 2001) (citing Dinger v.

       State, 540 N.E.2d 39, 40 (Ind. 1989)), reh’g denied, cert. denied; see also Hoglund v.

       State, 962 N.E.2d 1230, 1238 (Ind. 2012) (citing Stewart v. State, 768 N.E.2d

       433, 436 (Ind. 2002), cert. denied) (“The testimony of a sole child witness is

       sufficient to sustain a conviction for molestation.”), reh’g denied. We have

       previously found sufficient evidence to support a finding of touching with the

       intent to satisfy sexual desires where a defendant touched the victim’s vagina

       one time. Wise v. State, 763 N.E.2d 472, 475 (Ind. Ct. App. 2002), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-307 | July 30, 2019   Page 6 of 8
[12]   The evidence most favorable to the jury’s verdict reveals Wiltshire “wipe[d]”

       L.M.’s private area after Wiltshire pulled her toward him. Tr. Vol. II p. 30.

       L.M. testified that the touching was not a pat on the bottom. L.M. testified

       further that not only was the wipe “[not] slow, [not] fast . . . it was medium[,]”

       but that Wiltshire touched her with his hand on the front part of her private

       area, which she described as her “nu-nu.” Id. at 30-31. Moreover, Detective

       Fortune testified that, after Wiltshire saw how upset L.M. was during her

       deposition, Wiltshire stepped into the hallway with Detective Fortune. While

       in the hallway, Wiltshire hung his head and told Detective Fortune, “I know

       what happened, I know why she’s scared.” Id. at 54.


[13]   Based on the evidence of Wiltshire’s conduct, L.M.’s testimony, and the

       reasonable inferences therefrom, sufficient evidence supports the jury’s

       determination that Wiltshire knowingly touched L.M. and did so with an intent

       to arouse or satisfy his sexual desires. Wiltshire’s argument that the jury’s

       conclusion that the touching was performed “knowingly was simply a guess” is

       an invitation for us to reweigh the evidence, which we cannot do. See Gibson,

       51 N.E.3d at 210. Under these circumstances, the jury could have found that

       Wiltshire knowingly touched L.M. with the intent to arouse or to satisfy his

       sexual desires. Accordingly, the evidence is sufficient to sustain Wiltshire’s

       conviction.


                                                 Conclusion
[14]   Based on the foregoing, we find that the evidence is sufficient to convict

       Wiltshire of child molesting, a Level 4 felony. We affirm.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-307 | July 30, 2019   Page 7 of 8
[15]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-307 | July 30, 2019   Page 8 of 8
