MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       Jul 11 2019, 7:59 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
Megan Shipley                                             Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Megan M. Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA
C.M.,                                                     July 11, 2019
                                                          Court of Appeals Case No.
Appellant-Respondent,                                     18A-JV-2821
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marilyn Moores,
                                                          Judge
Appellee-Petitioner.
                                                          The Honorable Gary Chavers,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1804-JD-408




Riley, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019                           Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, C.M., appeals his adjudication that would constitute

      child molesting, a Level 3 felony, Ind. Code § 35-42-4-3(a), if committed by an

      adult.


[2]   We affirm.


                                                     ISSUE
[3]   C.M. presents one issue on appeal, which we restate as follows: Whether the

      State presented sufficient evidence beyond a reasonable doubt to sustain his

      adjudication as a delinquent.


                      FACTS AND PROCEDURAL HISTORY
[4]   In the spring of 2017, sixteen-year-old C.M., a freshman at North Central High

      School in Indianapolis, Indiana, met twelve-year-old M.K., a seventh-grade

      student at Northview Middle School, through social media. Around that time,

      C.M. would go to Northview Middle School for additional tutoring after school

      for a couple of hours.


[5]   C.M. and M.K. communicated mainly through text messages and social media

      apps like “Kik.” (Transcript Vol. II, p. 102). C.M. and M.K. eventually met in

      person one afternoon at Northview when C.M. was present for tutoring and

      M.K. had gone to retrieve a pass from a teacher. C.M. knew that M.K. was a

      student at Northview, but he did not know what grade she was in. In April of




      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019   Page 2 of 8
      2017, M.K. told C.M. via text message that she was thirteen years old even

      though she was twelve years old.


[6]   On May 18, 2017, M.K. stayed after school because she believed there was a

      Girls Club meeting, but it turned out the meeting had been cancelled. On the

      same day, while hanging out with her friend at the Northview gym, M.K.’s

      friend grabbed M.K.’s cellphone and texted C.M. to come meet them since they

      were bored. Shortly after C.M. met M.K. and her friend in the gym, M.K. left

      to use the restroom but C.M. followed her to a bathroom stall. Once inside,

      C.M. removed his clothes and M.K.’s clothes, and then C.M. had sexual

      intercourse with M.K.


[7]   Sometime after M.K. had intercourse with C.M., M.K. fell ill for several weeks.

      When M.K. appeared not to be getting any better, M.K.’s mother had M.K.

      take a pregnancy test, which indicated a positive result. M.K.’s mother and

      step-father thereafter contacted the Indianapolis Police Department and

      reported the incident. On July 19, 2017, the police obtained a statement from

      M.K., and in July 2017, M.K.’s forensic interview was conducted. On January

      24, 2018, M.K. gave birth to a baby boy. Following issuing of a search warrant,

      a buccal swab was obtained from C.M., and it was established that C.M. was

      the father of M.K.’s baby.


[8]   On April 9, 2018, the State filed a Petition Alleging Delinquency, claiming that

      C.M. had committed Level 3 felony child molesting, if committed by an adult.

      C.M. admitted that he had sexual intercourse with M.K., but his defense was


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019   Page 3 of 8
      that he reasonably believed M.K. was at least fourteen years or older at the time

      of the incident. In support, C.M. testified that M.K. told him via text message

      in April 2017 that she was fifteen years old, and he only found out she was

      younger when “some kids” from Northview told him at a football game two

      weeks after he had sexual intercourse with M.K. that M.K. was younger than

      fifteen. (Tr. Vol. II, p. 97). C.M. also relied on a still image of M.K. from a

      video taken in July of 2017 that made him believe that she was at least fourteen

      years old. On the other hand, M.K. testified that she told C.M. through text in

      April 2017 that she was thirteen years old. Neither of the alleged text messages

      were able to be retrieved because C.M. and M.K. were communicating via Kik,

      a mobile phone app that deletes all messages as soon as the user logs out of the

      application. Also, another student at Northview, K.C., testified that M.K.

      informed her at different points in time that she was thirteen years old in the

      sixth grade, fourteen years old in the seventh grade, and fifteen years old in the

      eighth grade. Notwithstanding K.C.’s knowledge of how old M.K. was, K.C.

      stated that she never had any discussions with C.M. regarding M.K.’s age.


[9]   On August 8, 2018, the juvenile court conducted a denial hearing. On August

      13, 2018, the juvenile court adjudicated C.M. as a delinquent and entered the

      following finding:


              The [c]ourt now finds that the State did meets its burden . . .
              beyond a reasonable doubt and show a true finding to the one
              [C]ount of child molesting. The [c]ourt finds that the State did
              meet all elements. The defense was basically a mistake of fact.
              The [c]ourt’s convinced that he knew how old this child was.
              [M.K.] testified to what she said. Yes, there was inconsistencies,
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019   Page 4 of 8
               but when I weighed the creditability [sic] of the witnesses and the
               fact that [C.M.] went over from a high school to a middle school
               and - and the incident of the child molest occurred in a middle
               school bathroom that the State did meet its burden. So, there
               will be a true finding to the [C]ount of child molest.


       (Supplemental Tr. p. 4). At a disposition hearing on October 29, 2018, the

       juvenile court ordered C.M. to be placed on probation with certain conditions,

       with a suspended commitment to the Department of Correction.


[10]   C.M. now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[11]   When the State seeks to have a juvenile adjudicated a delinquent for

       committing an act that would be a crime if committed by an adult, the State

       must prove every element of the offense beyond a reasonable doubt. C.L. v.

       State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014). When reviewing on appeal the

       sufficiency of the evidence supporting a juvenile adjudication, we neither

       reweigh the evidence nor judge the credibility of the witnesses. Z.A. v. State, 13

       N.E.3d 438, 439 (Ind. Ct. App. 2014). We consider only the evidence most

       favorable to the judgment and the reasonable inferences therefrom, and we will

       affirm if the evidence and those inferences constitute substantial evidence of

       probative value to support the judgment. C.L., 2 N.E.3d at 800.


[12]   In order to make a true finding of delinquency against C.M. for Level 3 felony

       child molesting, the State was required to prove beyond a reasonable doubt that

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019   Page 5 of 8
       C.M. knowingly or intentionally performed or submitted to sexual intercourse

       with M.K., a child under fourteen years of age. I.C. § 35-42-4-3(a). It is

       undisputed that C.M. had sexual intercourse with M.K. in a bathroom stall at

       Northview Middle School. C.M.’s defense at his denial hearing was that he

       reasonably believed M.K. was fourteen years of age or older.


                                          II. Reasonable Belief Defense

[13]   C.M. argues that the State failed to rebut his reasonable belief defense beyond a

       reasonable doubt, and therefore, we should reverse his true finding for Level 3

       felony child molesting. C.M. relies on three pieces of evidence to support his

       claim that he reasonably believed M.K. to be at least fourteen years or older at

       the time of the incident, namely: (1) his testimony that M.K. allegedly told him

       she was fifteen years old sometime in the spring of 2017, (2) K.C.’s testimony, a

       fellow schoolmate of M.K., that M.K. informed her that she was fourteen years

       old while in the seventh grade, and (3) a still image of M.K. from a video taken

       in July of 2017 that made him believe that M.K. was at least fourteen years old.


[14]   It is a defense to child molesting that the defendant reasonably believed the

       victim to be fourteen years of age or older. T.M. v. State, 804 N.E.2d 773, 774-

       75 (Ind. Ct. App. 2004). “Such a defense admits all the elements of the crime

       but proves circumstances that excuse the defendant from culpability.” Weaver v.

       State, 845 N.E.2d 1066, 1069 (Ind. Ct. App. 2006), trans. denied. To invoke the

       defense, C.M. must prove by a preponderance of the evidence that he

       reasonably believed M.K. was at least fourteen years old when he molested her.



       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019   Page 6 of 8
       See id. (noting that when a defense addresses only culpability, the defendant’s

       burden is to prove the defense by a preponderance of evidence).


[15]   The State relied on several pieces of evidence to rebut C.M.’s reasonable belief

       defense. The first was M.K.’s unequivocal testimony that she told C.M. in

       April of 2017 via a text message that she was thirteen years old even though she

       was twelve years old. The State was also able to establish through the

       questioning of K.C., M.K.’s fellow schoolmate at Northview, that while she

       believed M.K. was fourteen years old in 2017, at no point did K.C.

       communicate M.K.’s age to C.M.


[16]   It is for the trier of fact to resolve conflicts in the evidence. Kilpatrick v. State,

       746 N.E.2d 52, 61 (Ind. 2001). In the present case, the juvenile court chose to

       believe M.K.’s testimony that she had informed C.M. in April 2017 that she

       was thirteen. The sexual intercourse between C.M. and M.K. occurred in May

       2017. Moreover, we find C.M.’s argument that M.K. was fifteen years old was

       more believable, is an implicit request for this court to reweigh the evidence and

       reassess witness credibility, which we will not do. Smart v. State, 40 N.E.3d

       963, 966 (Ind. Ct. App. 2015).


[17]   Based on the evidence, the juvenile court could have reasonably determined

       that C.M. failed to sustain his burden of proof of establishing that he reasonably

       believed M.K. to be at least fourteen years old at the time of the sexual

       intercourse. Accordingly, we hold that the State presented sufficient evidence




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019   Page 7 of 8
       beyond a reasonable doubt to support the juvenile court’s true finding of

       delinquency.


                                              CONCLUSION
[18]   C.M. failed to satisfy his burden of proving he reasonably believed M.K. was at

       least fourteen years old when he had sexual intercourse with her, and therefore,

       we conclude that the State produced sufficient evidence beyond a reasonable

       doubt to sustain C.M.’s adjudication for committing an act that would

       constitute Level 3 felony child molesting if committed by an adult.


[19]   Affirmed.


[20]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-2821 | July 11, 2019   Page 8 of 8
