                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        Jun 21 2012, 8:41 am
any court except for the purpose of
establishing the defense of res judicata,                           CLERK
collateral estoppel, or the law of the case.                      of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

KAREN CELESTINO-HORSEMAN                            GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    GARY R. ROM
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SIDNEY D. BENNETT,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 55A04-1111-CR-645
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MORGAN SUPERIOR COURT
                        The Honorable Christopher L. Burnham, Judge
                              Cause No. 55D02-1007-FC-196



                                          June 21, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
         Appellant-Defendant Sidney Bennett appeals his conviction for Class C felony Child

Molestation.1 Specifically, Bennett contends that the trial court abused its discretion in

excluding certain evidence from trial and that the evidence is insufficient to support his

conviction. We affirm.

                             FACTS AND PROCEDURAL HISTORY

         At all times relevant to this appeal, A.G. was nine years old. A.G. had known Bennett

since she was two years old and had visited his home on a regular basis. On June 7, 2010,

Bennett contacted A.G.’s mother to inquire about spending the afternoon with A.G. A.G.

spent the afternoon helping Bennett with yard work and visiting a nearby creek to look for

rocks.

         After finishing the yard work, Bennett took A.G. into his bedroom. Bennett, who was

standing behind A.G., bent A.G. over a chair, put his hand up her shorts (on top of her

underwear), and rubbed her buttocks for approximately five seconds. Bennett told A.G. that

he was checking her for ticks. Bennett then lay down on his bed and positioned A.G. on top

of him before again touching her buttocks and “lift[ing]” her shirt up and touching and

rubbing her chest. Tr. p. 65. Bennett did not ask A.G. to touch him or remove any of his

clothes. After Bennett touched her chest, A.G. quickly moved away and Bennett got up and

took a shower.

         Bennett took A.G. to a cookout at his parents’ home before taking A.G. home for the

evening. A.G. did not immediately tell her mother everything that had happened at Bennett’s


         1
             Ind. Code § 35-42-4-9(A)(1) (2009).
                                                   2
home because she was sad and scared. Approximately two or three days later, A.G. told her

mother and both her maternal and paternal grandmothers what had happened. A.G. later

discussed the incident with a police officer and a representative of the Department of Child

Services. Bennett subsequently gave a statement to police where he admitted to checking

A.G. for ticks, but denied any wrongdoing. Bennett also wrote a fourteen page letter to the

investigating officer in which he alleged that A.G. had become “sexualized.” In this letter,

Bennett stated that he believed it “natural to check for ticks in a ‘hands on’ kind of way.”

State’s Ex. 14. Bennett also stated that he believed that “someone [had] taken inappropriate

sexual liberties with [A.G.]” and that he believed that A.G. expected a sexual encounter with

him while in his bedroom. State’s Ex. 14.

       On July 26, 2010, the State charged Bennett with Class C felony child molesting. On

January 26, 2011, the State amended the charging information to include an allegation that

Bennett was a habitual offender. The trial court conducted a bench trial on September 31,

2011. At trial, A.G. testified that she had had her hair checked for ticks before but never

under her clothes. A.G. further testified that this time, however, Bennett did not check

A.G.’s hair or brush off A.G.’s arms or legs. Bennett admitted that while he thought it proper

to check for ticks in a “hands on” manner, he would not check his seven-year-old

granddaughter for ticks in a private area. Following trial, the trial court found Bennett guilty

as charged. The trial court also found that Bennett was a habitual offender. On October 27,

2011, the trial court sentenced Bennett to a term of six years for the Class C felony child

molesting conviction, enhanced by a term of eight years for the determination that Bennett

                                               3
was a habitual offender. This appeal follows.

                             DISCUSSION AND DECISION

       Bennett contends that the trial court abused its discretion in excluding certain evidence

and that the evidence is insufficient to sustain his conviction.

                                 I. Admission of Evidence

       Bennett contends that the trial court abused its discretion in excluding certain

circumstantial evidence which was allegedly relevant to his defense at trial. Specifically, he

argues that the trial court should have admitted certain circumstantial evidence allegedly

relating to whether A.G.’s testimony was coached and whether A.G. was “sexualized.”

Appellant’s Br. p. 23.

       When ruling on the admissibility of evidence, the trial court is afforded broad
       discretion, and Indiana appellate courts will only reverse the ruling upon a
       showing of abuse of discretion. Smoote v. State, 708 N.E.2d 1, 3 (Ind. 1999).
       An abuse of discretion involves a decision that is clearly against the logic and
       effect of the facts and circumstances before the court. Stone v. State, 536
       N.E.2d 534, 538 (Ind. Ct. App. 1989), trans. denied.

Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000).

       Indiana Rule of Evidence 402 provides that:

       All relevant evidence is admissible, except as otherwise provide by the United
       States or Indiana constitutions, by statute not in conflict with these rules, by
       these rules or by other rules applicable in the courts of this State. Evidence
       which is not relevant is not admissible.

(Emphases added). “‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Ind. R. Evid. 401.

                                               4
                           A. Potential Evidence of Coaching

       Bennett claims that the trial court abused its discretion in excluding testimony which

he argues could potentially have supported his claim that A.G.’s testimony may have been

coached. At trial, Bennett attempted to testify about an incident involving A.G.’s mother’s

sometime boyfriend, Nick Brummett. Bennett testified that prior to the incident in question,

Brummett, who had lived with Bennett at some point, broke into Bennett’s house and beat

Bennett. Bennett testified that Brummett was charged with a felony, but pled guilty to a

misdemeanor approximately a few weeks before the incident with A.G. occurred. A.G.’s

mother and Brummett were not together at the time the incident occurred, and Bennett’s own

testimony indicated that A.G.’s mother was dating someone else at the time.

       While Bennett was testifying about the incident involving himself and Brummett, the

trial court questioned its relevancy. In response to the trial court’s question, Bennett’s

counsel replied as follows: “Well, Judge, for whatever it’s worth, Mr. Bennett believes that

… that [A.G.] may well have been put up … to this by….” Tr. pp. 156-57. The trial court

instructed Bennett’s trial counsel to move on to evidence relevant to whether A.G.’s evidence

was coached. Bennett testified that A.G.’s mother may have coached A.G.’s testimony

because he had considered aiding A.G.’s paternal grandmother in a potential future bid to

gain custody of A.G., but did not present any evidence of coaching relating to Brummett.

       On appeal, Bennett does not explain what relevant evidence was excluded by the trial

court when the court instructed Bennett’s counsel to present evidence relating to Bennett’s

claim that A.G.’s testimony might have been coached. The trial court did not deny Bennett

                                             5
the opportunity to present evidence relating to whether A.G.’s testimony might have been

coached, but, rather, limited Bennett’s references to an incident involving his beating by

another man long before the events in question which was linked to the current events, if at

all, by speculation only. As such, we cannot conclude that the trial court abused its discretion

in this regard.

                  B. Evidence Relating to Whether A.G. was “Sexualized”

       Bennett also argues that the trial court abused its discretion in excluding certain

evidence that Bennett argued would support his claim that A.G. was “sexualized.” Bennett

claims that the trial court abused its discretion because it would only allow him to testify as to

what he “had directly seen without recognizing that circumstantial evidence would also form

the basis of [his] opinion.” Appellant’s Br. p. 14. The State, for its part, argues that the trial

court acted within its discretion because any observations that had allegedly been relayed to

Bennett by some unknown person would amount to inadmissible hearsay.

       In his fourteen page letter to the investigating officer, Bennett stated that he believed

that “someone [had] taken inappropriate sexual liberties with [A.G.]” and that he believed

that A.G. expected a sexual encounter with him while in his bedroom. State’s Ex. 14.

Bennett did not provide any information in this letter relating to why he believed that

someone had engaged in inappropriate sexual behavior with A.G. or why she would have

expected a sexual encounter with him on the day in question. When questioned by the court

about his belief that A.G. had become “sexualized,” Bennett engaged in the following

exchange:

                                                6
       Court:         What makes you believe that, sir?
       Bennett:       Well, she went from being a young … little young girl, naïve,
       let’s say, seemingly naïve about life and … intimacy, to being one who was
       knowledgeable and that …
       Court:         How would you know that, sir?
       Bennett:       I … I can’t read her mind but being around her and seeing …
       seeing how she was makes me believe without a doubt that she was
       knowledgeable of … of the act required to procreate. Not necessarily in those
       terms, of course.
       Court:         She was nine years old.
       Bennett:       That’s right. It’s way too young. And …
       Court:         And what specific acts did you observe that made you believe
       that?
       Bennett:       Well, there’s … if you’ll allow me to expand on it.
       Court:         Get to the point quickly.
       Bennett:       Okay. She was observed behind the couch at her mother’s home
       with various …
       Court:         Did you observe her?
       Bennett:       I did not. This is …
       Court:         Then I don’t want to hear about it. I want to know what you saw
       that made you believe that this was a nine-year-old sexualized child.
       Bennett:       I don’t know if I could … if I have a certain thing. I’m … I’m
       sorry. Perhaps.

Tr. pp. 172-73. Bennett could not point to any action of A.G. that he had witnessed that

would tend to indicate that A.G. had become “sexualized” but, rather, attempted to testify

about an out-of-court statement by some unknown individual regarding his or her alleged

observation of A.G.

       The State claims that the trial court properly excluded Bennett’s testimony about the

out-of-court statement by the unknown individual because the statement was inadmissible

hearsay. Hearsay is an out-of-court statement offered in court to prove the truth of the matter

asserted. Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010) (citing Jones v. State,

800 N.E.2d 624, 627-28 (Ind. Ct. App. 2003)); see also Ind. Evidence Rule 801(c). As a

                                              7
general rule, hearsay evidence is inadmissible. Id. (citing Jones, 800 N.E.2d at 627-28); see

also Ind. Evidence Rule 802.

       Bennett argues that the statement was not inadmissible hearsay because it was not

offered to prove that A.G. was “sexualized” but rather to explain why he believed that A.G.

was “sexualized.” However, Bennett’s belief as to whether A.G. was “sexualized” is

ultimately only relevant to prove the truth of the matter asserted, namely that A.G. was

indeed sexualized and therefore prone to misinterpret Bennett’s actions. Bennett could

provide no personal knowledge of any act by A.G. that would support his claim that A.G. had

become “sexualized.” Bennett’s only support for this contention was an out-of-court

statement by an unknown person regarding that person’s observation which is class

inadmissible hearsay. The second-hand nature of Bennett’s testimony about the out-of-court

statement of some unknown individual makes Bennett’s testimony classic inadmissible

hearsay. As such, we conclude that the trial court acted within its discretion in excluding

Bennett’s testimony regarding the out-of-court statement from trial.

                             II. Sufficiency of the Evidence

       Bennett next contends that the evidence is insufficient to sustain his conviction for

Class C felony child molesting. In making this contention, Bennett argues that the evidence

is insufficient to prove beyond a reasonable doubt that he intended to satisfy his sexual

desires by touching A.G. Specifically, Bennett argues that his statements to the investigating

officer were consistent and do not demonstrate any intent to satisfy a sexual desire, that

inconsistencies exist between A.G.’s prior statements and her trial testimony such that A.G.

                                              8
could not be believed, and that A.G. was a troubled child who was exposed to sex in her

home. For its part, the State argues that the evidence was sufficient to prove beyond a

reasonable doubt that Bennett intended to satisfy a sexual desire by touching A.G.

              When reviewing the sufficiency of the evidence to support a conviction,
       appellate courts must consider only the probative evidence and reasonable
       inferences supporting the verdict. 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.… The evidence is
       sufficient if an inference may reasonably be drawn from it to support the
       verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). “[I]t is for the trier of fact to reject a defendant’s version of what happened, to

determine all inferences arising from the evidence, and to decide which witnesses to

believe.” Holeton v. State, 853 N.E.2d 539, 541 (Ind. Ct. App. 2006). Upon review,

appellate courts do not reweigh the evidence or assess the credibility of the witnesses.

Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002).

       Indiana Code section 35-42-4-3(b) provides as follows:

       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 Class C felony.

Thus, in order to prove that Bennett committed child molestation in violation of Indiana Code

section 35-42-4-3(b), the State was required to prove that Bennett fondled or touched A.G.,

who was under the age of fourteen, with the intent to arouse or satisfy either his or A.G.’s

sexual desires.

              The intent to arouse or satisfy the sexual desires of the child or the older
                                               9
       person may be established by circumstantial evidence and may be inferred
       “from the actor’s conduct and the natural and usual sequence to which such
       conduct usually points.” Nuerge v. State, 677 N.E.2d 1043, 1048 (Ind. Ct.
       App. 1997). Mere touching is insufficient to constitute the crime. Markiton v.
       State, 236 Ind. 232, 235-36, 139 N.E.2d 440, 441 (1957).

Kanady v. State, 810 N.E.2d 1068, 1069-70 (Ind. Ct. App. 2004).

       In Kanady, we determined that there was circumstantial evidence of Kanady’s intent

to gratify his sexual desires. 810 N.E.2d at 1070-71. The evidence demonstrated that

Kanady touched his twelve-year-old victim “an inch into her panties” on one occasion and

“on the skin of her breast” on another occasion. Id. at 1069. Both times, Kanady’s victim

pushed him away. Id. After the second incident, Kanady apologized to his victim “for the

way [he had] been treating [her] like [she] was his girlfriend” and stated that he was “sorry

for the way he had acted.” Id. In addition, the victim’s mother testified that Kanady “would

joke about [the victim’s] breasts getting bigger.” Id. at 1070. On appeal, this court

concluded that “the two instances of inappropriate touching, in light of Kanady’s statements,

[were] sufficient to permit the factfinder to reasonably infer that Kanady intended sexual

arousal and therefore to find the intent element proven beyond a reasonable doubt.” Id.

       Here, the evidence supporting the trial court’s judgment supports the inference that

Bennett twice touched nine-year-old A.G. in a manner which was intended to satisfy his

sexual desires. The record reveals that just prior to both touchings, Bennett situated A.G. in a

position that made it easy for him to fondle her. In the first incident, Bennett bent A.G. over

a chair before touching and rubbing her buttocks. Bennett, who was standing behind A.G.,

bent her “straight over,” put his hand up A.G.’s shorts (on top of her underwear), and rubbed

                                              10
her buttocks for approximately five seconds. In the second incident, Bennett lay down on his

bed and positioned A.G. on top of him before again touching her buttocks and “lift[ing]” her

shirt up and touching and rubbing her chest. Tr. p. 65. After touching A.G., Bennett got up

and took a shower.

         Bennett claims that the above-stated evidence is insufficient to support an inference

that he intended to satisfy his sexual desires, and argues that there was nothing sexual about

the touching as he was merely checking A.G. for ticks. In a fourteen page letter to the

investigating officer, Bennett stated that he believed it “natural to check for ticks in a ‘hands

on’ kind of way.” State’s Ex. 14. Bennett, however, admitted at trial that he would not

check his seven-year-old granddaughter for ticks in a private area, suggesting that he knew

that such touching would be inappropriate. Moreover, A.G. testified that Bennett did not rub

her arms or legs or check her hair as would likely be done if one were indeed checking for

ticks.

         Given Bennett’s efforts to “check for ticks” in A.G.’s private areas only, and not in

more logical places like her hair, together with his concession that such touching would be

inappropriate in the context of other young children, the trial court was within its discretion

to reasonably infer that Bennett intended to satisfy his sexual desires. As such, we conclude

that the evidence is sufficient to find that the State proved the intent element beyond a

reasonable doubt.2 Bennett’s argument to the contrary effectively amounts to an invitation


         2
           Having concluded that the evidence was sufficient to prove the intent element beyond a reasonable
doubt, we further conclude that Bennett’s claim that his conviction violated his constitutional rights because
the State failed to prove each element beyond a reasonable doubt is meritless.
                                                     11
for this court to reweigh the evidence, which, again, we will not do. See Stewart, 768 N.E.2d

at 435.

          Furthermore, to the extent that Bennett claims that inconsistencies exist between

A.G.’s prior statements and trial testimony such that her testimony should be disregarded by

the trial court, we disagree. In support of his claim, Bennett points to two alleged

inconsistencies in A.G.’s prior statements and her trial testimony. Bennett points to A.G.’s

allegedly inconsistent statements regarding whether a tick was found in her hair after leaving

Bennett’s parent’s home and whether the touching occurred in the living room or bedroom of

Bennett’s home. During trial, Bennett also highlighted an alleged discrepancy about whether

A.G. brushed her hair after the touching. The trial court apparently determined that it was

irrelevant whether A.G. had brushed her hair after the touching occurred or if a tick was later

discovered in A.G.’s hair, and heard evidence that Bennett often entertained people in his

bedroom as one might normally do in a living room. All in all, the trial court determined that

A.G.’s testimony was credible. Again, it is for the trier of fact to decide which witnesses to

believe, and we will not disturb the trial court’s finding in this regard. See Holeton, 853

N.E.2d at 541.

          In sum, having concluded that the trial court acted within its discretion in excluding

certain allegedly circumstantial evidence proffered by Bennett and that the evidence is

sufficient to sustain Bennett’s conviction for Class C felony child molestation, we affirm the

judgment of the trial court.

          The judgment of the trial court is affirmed.

                                                12
VAIDIK, J., and CRONE, J., concur.




                                     13
