MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                           FILED
Memorandum Decision shall not be regarded as                           Jan 14 2019, 9:14 am
precedent or cited before any court except for the                         CLERK
purpose of establishing the defense of res judicata,                   Indiana Supreme Court
                                                                          Court of Appeals
collateral estoppel, or the law of the case.                                and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Robert G. Bottorff II                                  Curtis T. Hill, Jr.
Bob Bottorff Law PC                                    Attorney General of Indiana
Jeffersonville, Indiana                                Chandra K. Hein
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

T.S.,                                                      January 14, 2019
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           17A-JV-3035
        v.                                                 Appeal from the Clark Circuit
                                                           Court
State of Indiana,                                          The Hon. Vicki L. Carmichael,
Appellee-Petitioner.                                       Judge
                                                           Trial Court Cause No.
                                                           10C04-1708-JD-204



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019               Page 1 of 12
                                           Case Summary
[1]   On two separate occasions in the summer of 2017, T.S., J.C., and B.S., invited

      young women to spend time with them. The first time, T.S. and J.C. confined

      a girl named A.M. in a truck before B.S. raped her. The second time, a girl

      named K.G., who knew and trusted T.S., was lured to B.S.’s house, where B.S.,

      J.C., and T.S. confined and raped her in turn. The State alleged that T.S.

      committed (if committed by an adult) Level 3 felony aiding, inducing, or

      causing the rape of A.M.; Level 6 felony criminal confinement of A.M.; Level 6

      felony aiding, inducing, or causing the criminal confinement of A.M.; Level 3

      felony rape of K.G.; Level 3 felony aiding, inducing, or causing the rape of

      K.G.; Level 6 felony criminal confinement of K.G.; and Level 6 felony aiding,

      inducing, or causing the criminal confinement of K.G. The juvenile court

      entered true findings on all allegations and ordered T.S. committed to the

      Department of Correction (“DOC”) until he turns eighteen. T.S. contends that

      the State produced insufficient evidence to sustain the adjudications against

      him, except for the finding that he criminally confined A.M. Because we

      disagree, we affirm the judgment of the juvenile court.



                            Facts and Procedural History
[2]   At approximately 1:00 a.m. on June 24, 2017, A.M. went with a friend to the

      home of B.S. in Marysville, having been led to believe by B.S. and T.S. that

      they were going to a party. Instead of a party, the girls found only B.S., T.S.,

      J.C., and B.S.’s sister at the house. T.S. asked A.M. if she wanted to go on an

      Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 2 of 12
      “adventure[,]” and she agreed to. Tr. Vol. II p. 196. T.S. took A.M. to a truck

      that was parked nearby, in which he attempted to undress A.M. for at least

      twenty minutes, “kissing on [her] and […] trying to grab [her] thighs and stuff.”

      Tr. Vol. II p. 196. Although A.M. made repeated attempts to escape, T.S.

      forcibly prevented her.


[3]   After twenty minutes, T.S. left the truck and B.S. entered. B.S. attempted to

      remove A.M.’s pants for approximately ten minutes before giving up, forcibly

      preventing her from leaving. Finally, J.C. took B.S.’s place in the truck. J.C.

      managed to remove A.M.’s pants, pulled his own down to his knees, positioned

      himself on top of A.M., and had forcible intercourse with her. When A.M.

      emerged from the truck, B.S. and T.S. were standing outside.


[4]   On July 11, 2017, K.G. agreed to “hang out” with B.S., J.C., and T.S., and

      they came to get her at 5:00 a.m. Tr. Vol. II p. 105. Once at B.S.’s house, B.S.

      told K.G. that he needed to talk to her, took her to an upstairs room, locked the

      door, turned out the lights, and shoved her onto a bed. K.G., knowing that B.S.

      has a bad temper, was “scared [and] fearful.” Tr. Vol. II p. 111. When B.S.

      told K.G. that she needed to remove her clothing, she responded that she did

      not want to have intercourse with him. B.S. indicated that K.G. would not

      have a ride home if she did not have intercourse with him, so she removed her

      pants and had intercourse with B.S. K.G. felt that force was being used on her.

      B.S. went out to the front porch and told T.S. that he had had intercourse with

      K.G. J.C. went inside, and T.S. knew that he was going to the bedroom where

      K.G. was.

      Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 3 of 12
[5]   J.C. came into the bedroom and locked the door behind him. K.G. felt

      “[s]cared” because she knew what he was going to try but also knew that he

      was stronger than she was. Tr. Vol. II p. 113. When K.G. told J.C. that she

      could not have intercourse with him, he said, “What do you mean? It’s my

      turn.” Tr. Vol. II p. 107. J.C. removed K.G.’s underwear and had forcible

      intercourse with K.G.


[6]   After J.C. left, T.S. came into the room and closed the door behind him. K.G.

      told T.S. that she did not want to have intercourse with him and that she

      wanted to go home. Although K.G. believed that there was a chance that she

      could “talk him out of it,” she feared that T.S. would force intercourse on her.

      Tr. Vol. II p. 114. T.S. told K.G. to remove her shirt or he would do it for her

      and to remove her bra. K.G. removed the garments because she did not want

      T.S. to do it. T.S. and K.G. had intercourse after he forced his penis into her

      vagina. T.S. later told police that he knew what B.S. and J.C. were going to do

      with K.G. T.S. also visibly agreed with the officers’ characterization that he

      had “facilitated” K.G. sleeping with three persons in one day. State’s Ex. 5,

      File 5 at 07:49–08:07.


[7]   On October 16, 2017, the State filed an amended delinquency petition, which

      alleged that T.S. committed (if committed by an adult) Level 3 felony rape of

      A.M.; Level 3 felony aiding, inducing, or causing the rape of A.M.; Level 6

      felony criminal confinement of A.M.; Level 6 felony aiding, inducing, or

      causing the criminal confinement of A.M.; Level 3 felony rape of K.G.; Level 3

      felony aiding, inducing, or causing the rape of K.G.; Level 6 felony criminal

      Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 4 of 12
      confinement of K.G.; and Level 6 felony aiding, inducing, or causing the

      criminal confinement of K.G. On October 25, 2017, the State dismissed the

      rape allegation concerning A.M. with T.S. as the principal. On October 31,

      2017, the juvenile court entered true findings on all remaining allegations. On

      November 29, 2017, the juvenile court ordered that T.S. be placed in the DOC

      until he turns eighteen years old.


                                 Discussion and Decision
[8]   T.S. contends that the State failed to produce sufficient evidence to sustain six

      of the seven adjudications against him. When reviewing claims of insufficient

      evidence in a juvenile case, appellate courts apply the same standard of review

      as if it were an appeal of a criminal conviction. K.W. v. State, 984 N.E.2d 610,

      612 (Ind. 2013). In reviewing a challenge to the sufficiency of the evidence, we

      do not reweigh the evidence or assess the credibility of witnesses. McHenry v.

      State, 820 N.E.2d 124, 126 (Ind. 2005). “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.” Drane v. State, 867

      N.E.2d 144, 146 (Ind. 2007). We look only to evidence in a light most

      favorable to the juvenile court’s ruling and must affirm the conviction unless no

      reasonable fact-finder could find the elements proven beyond a reasonable

      doubt. McHenry, 820 N.E.2d at 126. The evidence need not overcome every

      reasonable hypothesis of innocence. Craig v. State, 730 N.E.2d 1262, 1266 (Ind.

      2000).



      Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 5 of 12
                                     I. Accomplice Offenses
[9]    T.S. challenges the juvenile court’s findings that he aided, induced, or caused

       the rapes and criminal confinements of A.M. and K.G. An accomplice is

       criminally responsible for all acts committed by a confederate which are a

       probable and natural consequence of their concerted action. Alvies v. State, 905

       N.E.2d 57, 61 (Ind. Ct. App. 2009) (citing McGee v. State, 699 N.E.2d 264, 265

       (Ind. 1998)); Ind. Code § 35-41-2-4 (“A person who knowingly or intentionally

       aids, induces, or causes another person to commit an offense commits that

       offense[.]”). The accomplice need not participate in every element of the crime

       to be convicted of it. Alvies, 905 N.E.2d at 61 (citing McGee, 699 N.E.2d at

       265). Factors to be considered by the fact-finder include: (1) presence at the

       scene of the crime; (2) companionship with another engaged in a crime; (3)

       failure to oppose the commission of the crime; and (4) the course of conduct

       before, during, and after the occurrence of the crime. Wieland v. State, 736

       N.E.2d 1198, 1202 (Ind. 2000) (citing Edgecomb v. State, 673 N.E.2d 1185, 1193

       (Ind. 1996) and Johnson v. State, 490 N.E.2d 333, 334 (Ind. 1986)).


[10]   In order to adjudicate T.S. delinquent based on accomplice liability for rape, the

       State was required to prove that T.S. did knowingly aid, induce or cause B.S.

       and/or J.C. to knowingly or intentionally have sexual intercourse with A.M.

       and/or K.G., who were compelled by force or the imminent threat of force.

       Ind. Code §§ 35-42-4-1(a)(1), 35-41-2-4. In order to adjudicate T.S. delinquent

       based on accomplice liability for criminal confinement, the State was required

       to prove that T.S. did knowingly aid, induce, or cause B.S. and/or J.C. to

       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 6 of 12
       knowingly or intentionally confine A.M. and/or K.G. without their consent.

       Ind. Code §§ 35-42-3-3(a), 35-41-2-4.


                                                   A. A.M.
[11]   T.S. claims that the State produced evidence sufficient only to establish that he

       was there when B.S. and J.C. confined and/or raped A.M. in the truck.

       (Appellant’s Br. 15). The record, however, contains ample evidence that T.S.

       was not as passive as he would have us believe. A.M. testified that T.S. coaxed

       her to the truck where she was raped, telling her that they were going on an

       “adventure[.]” Tr. Vol. II p. 196. After T.S. confined A.M. for twenty minutes

       against her will, T.S. let B.S. into the truck, who also tried for several minutes

       to force himself on A.M. before giving up. B.S. then made way for J.C., who

       raped A.M. When A.M. emerged from the truck after being raped by J.C., T.S.

       and B.S. were standing next to the truck. The three boys “seem[ed] to know

       what they were going to do[.]” Tr. Vol. II p. 214.


[12]   The factors mentioned by the Wieland Court are present in this case. T.S. was

       at the scene of the crime and was friends with B.S. and J.C., so companionship

       was established. T.S. did nothing to stop B.S.’s unsuccessful attempt to rape

       A.M. or J.C.’s successful attempt. T.S.’s conduct before, during, and after also

       indicates concerted action, coaxing A.M. to the truck where the rape and

       confinement occurred, passing her to B.S., and standing nearby the truck as

       B.S. and J.C. were in the truck with A.M. We conclude that this is sufficient

       evidence to sustain a finding that T.S. was acting in concert with B.S. and J.C.


       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 7 of 12
       to carry out a plan for all three of them to take turns confining and/or raping

       A.M. in the truck.


                                                    B. K.G.
[13]   T.S. contends that the evidence cannot establish that he was an accomplice in

       the rape and confinement of K.G. by B.S. and J.C. Specifically, T.S. argues

       that because he “was not in the vicinity at all,” Appellant’s Br. p. 15, he cannot

       be adjudicated delinquent under an accomplice liability theory for the acts that

       B.S. and J.C. perpetrated against K.G.


[14]   The evidence, however, supports findings that T.S. was near the bedroom at all

       relevant times and knew exactly what was occurring within. While B.S. and

       J.C. were raping K.G., T.S. was on the front porch of B.S.’s house, and the

       stairs that led to the bedroom are just across a living room that is accessed by

       the front door. Far from not being in the vicinity at all, the record indicates that

       T.S. was never more than a few seconds from the bedroom. Moreover, in his

       statement to the police, T.S. admitted that he had known what B.S. and J.C.

       were going to do with K.G. When B.S. emerged from the bedroom after raping

       K.G., he told T.S. that he had had sex with K.G., and when J.C. left, T.S. knew

       that he was going to the bedroom. After J.C. raped K.G., he came out of the

       bedroom and told T.S. that T.S. could go upstairs if he wanted to. Finally, T.S.

       agreed when officers told him that he had “facilitated” K.G. having intercourse

       with three persons in one day. State’s Ex. 5, File 5 at 07:49–08:07.




       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 8 of 12
[15]   Once again, the Wieland factors relevant to accomplice liability are present here.

       T.S. was at the house with his friends B.S. and J.C., so evidence of

       companionship with confederates exists. Not only did T.S. fail to object to the

       commission of B.S.’s and J.C.’s offenses, he committed his own. T.S.’s

       behavior before, during, and after the offenses indicates concerted action. T.S.

       used K.G.’s trust in him to lure her to B.S.’s house. T.S.’s presence in the

       house with B.S. and J.C. helped create K.G.’s sense of helplessness and

       submission and, after he raped K.G., T.S. pretended like nothing had

       happened. It is also worth noting that K.G. testified that J.C. told her “It’s my

       turn” before raping her, suggesting that it was understood that all three boys

       would have their “turn” with K.G. The State produced sufficient evidence to

       sustain a finding that T.S. aided, induced, or caused B.S. and/or J.C. to

       criminally confine and rape K.G.


                  II. Rape and Criminal Confinement of K.G.
                                                    A. Rape
[16]   In order to support a finding that T.S. committed what would be the rape of

       K.G. if committed by an adult, the State was required to prove that he

       knowingly or intentionally had sexual intercourse with K.G., and/or did cause

       K.G. to perform or submit to other sexual conduct, where K.G. was compelled

       by force or by the imminent threat of force. Ind. Code § 35-42-4-1(a)(1). T.S.

       claims only that the State did not prove that he used sufficient force to sustain a

       finding that he raped K.G.



       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 9 of 12
[17]   “[T]he offense of committing rape requires the State to prove that the victim’s

       ‘submission was compelled by force.’” Newbill v. State, 884 N.E.2d 383, 392–93

       (Ind. Ct. App. 2008) (quoting Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996)),

       trans. denied. The Tobias Court noted that the language of the rape statute, as a

       whole,


               demonstrates that it is the victim’s perspective, not the
               assailant’s, from which the presence or absence of forceful
               compulsion is to be determined. This is a subjective test that
               looks to the victim’s perception of the circumstances surrounding
               the incident in question. The issue is thus whether the victim
               perceived the aggressor’s force or imminent threat of force as
               compelling her compliance.
       Tobias, 666 N.E.2d at 72.


[18]   When T.S. came into the bedroom, K.G. specifically told him that she did not

       want to have intercourse with him. T.S. responded, “‘Come on, just do it one

       more time. Just do it for me.’” Tr. Vol. II p. 108. K.G. refused and said that

       she wanted to go home. T.S. demanded that K.G. take her shirt off, telling her,

       “‘You do it or I will.’” Tr. Vol. II p. 108. T.S. told K.G. to take off her bra as

       well. T.S. also indicated that K.G. would not be able to go home until “[a]fter

       he had sex with [her.]” Tr. Vol. II p. 117. K.G. testified that she felt

       “trapped[,]” scared, and fearful that T.S. would force intercourse on her. Tr.

       Vol. II p. 119. T.S. then pushed his penis into K.G.’s vagina “[w]ith force”

       against her wishes, knowing that it was against her wishes. Tr. Vol. II p. 120.

       This is more than sufficient evidence to establish that K.G.’s submission was

       compelled by force.

       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 10 of 12
                                     B. Criminal Confinement
[19]   In order to support a finding that T.S. criminally confined K.G., the State was

       required to prove that T.S. did knowingly or intentionally confine K.G. without

       her consent. Ind. Code § 35-42-3-3(a). T.S. claims that the record contains no

       evidence that T.S. confined K.G. beyond the amount of time necessary to

       complete intercourse. Although this argument might more appropriately be

       characterized as a claim of double jeopardy rather than one of insufficient

       evidence, it is without merit either way. Even when confinement is part of one

       offense, such as rape, that confinement can support a separate conviction for

       criminal confinement if it lasts longer than necessary to complete the rape. See,

       e.g., Hopkins v. State, 759 N.E.2d 633, 639 (Ind. 2001) (“[W]here the

       confinement of a victim is greater than that which is inherently necessary to rob

       them, the confinement, while part of the robbery, is also a separate criminal

       transgression.”).


[20]   From the moment T.S. came into the bedroom and closed the door behind him,

       K.G. felt “a little trapped[,]” Tr. Vol. II p. 119, and the record is clear that the

       intercourse did not occur immediately. T.S. told police that before he had

       intercourse with K.G., they had a “meaningful” conversation, during which he

       was trying to convince her to have intercourse voluntarily. State’s Ex. 5, File 5

       at 08:12–08:26. T.S.’s conversation with K.G., in which he tried to convince

       her to have intercourse and during which K.G. felt “trapped” and not free to

       leave, constituted confinement separate from the confinement inherent in the

       subsequent rape. Because the State presented evidence sufficient to find that

       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 11 of 12
       T.S. confined K.G. before the rape, the adjudication that he committed

       criminal confinement need not be overturned.


[21]   We affirm the judgment of the juvenile court.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 17A-JV-3035 | January 14, 2019   Page 12 of 12
