MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Sep 26 2017, 6:25 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool                                     Curtis T. Hill, Jr.
Vanderpool Law Firm                                      Attorney General of Indiana
Warsaw, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher L. Kimble,                                   September 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         No. 85A02-1702-CR-417
        v.                                               Appeal from the Wabash Circuit
                                                         Court
State of Indiana,                                        The Honorable Robert R.
Appellee-Plaintiff.                                      McCallen, III, Judge
                                                         Trial Court Cause No.
                                                         85C01-9706-CF-29



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 1 of 22
[1]   Christopher L. Kimble appeals his conviction for attempted child molesting as a

      class B felony. Kimble raises three issues which we revise and restate as:


              I.       Whether the trial court abused its discretion in admitting
                       the results of a polygraph examination administered to
                       Kimble;

              II.      Whether the court abused its discretion in granting the
                       State’s motion to amend the charging information; and

              III.     Whether the evidence is sufficient to sustain his
                       conviction.

      We affirm.


                                      Facts and Procedural History

[2]   In the summer of 1994, D.C., who was born in October of 1989, lived in

      Wabash, Indiana, with her mother, her brother, and Kimble, who was her older

      sister’s boyfriend. D.C.’s mother would leave home for four of five hours to

      deliver a paper route four or five days per week. D.C. was “half asleep in [her]

      room” when Kimble entered her room after her mother had left, pulled down

      his pants, and took off D.C.’s underwear. Transcript at 33. Kimble touched

      D.C. with his hands and his penis, touched her “around [her] vagina area,” and

      “went around it, and then tried to go inside.” Id. at 33-34. D.C. did not tell

      anyone what had happened at the time. She later told her father’s wife about

      the incident, D.C.’s father and his wife took D.C. to the hospital, and law

      enforcement later interviewed D.C.




      Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 2 of 22
[3]   On May 29, 1997, Kimble signed an advice of rights and was interviewed by

      police. He also signed an Agreement of Stipulation of Polygraph Examination

      providing that the results of the examination may be used in any cause of action

      which should arise against him and that the written examination report would

      be introduced into evidence at any trial or hearing.


[4]   On May 30, 1997, Kimble signed a Consent to Submit to Polygraph

      Examination, and Joseph Clingenpeel, II, administered examination.

      Clingenpeel prepared a polygraph examination report dated May 30, 1997,

      setting forth the procedures used and his conclusions. The report indicated that

      Kimble was asked “Did your penis touch [D.C.’s] vagina?”; “Did your penis

      touch [D.C.’s] vagina while living in Wabash?”; and “Did your finger touch

      [D.C.’s] vagina?”; and Kimble answered “No” to each of these questions.

      State’s Exhibit 5. The report stated “the results were found to be: Deception

      indicated,” and “[i]t is the opinion of this examiner that the subject was not

      totally truthful in his responses to the questions asked.” Id.


[5]   In June 1997, the State charged Kimble with child molesting and attempted

      child molesting as class A felonies. On December 19, 1997, the State filed an

      amended charging information alleging: Count I, child molesting as a class C

      felony; and Count II, attempted child molesting as a class B felony. 1 According




      1
          Specifically, Count II of the information filed on December 19, 1997, alleged:

                 [I]n May or June of 1996, at the County of Wabash, and State of Indiana, one
                 CHRISTOPHER LEE KIMBLE did attempt to commit the crime of child molesting by
                 knowingly or intentionally pulling [D.C.’s] pants down, a child under 14 years of age,

      Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 3 of 22
to the chronological case summary (“CCS”), at some point in 2016 Kimble was

moved from South Carolina where he had been incarcerated to Wabash

County, Indiana.2 In December 2016, a jury trial was held at which D.C. and

Clingenpeel testified and the trial court admitted the May 30, 1997 polygraph

examination report. After it rested its case-in-chief, the State moved to amend

Count II of the information to replace the word “pants” with the word

“underwear,” to delete the language “and moving it . . . in an up and down

movement,” and to insert language that Kimble placed his penis near her

vagina, and the court granted the motion and stated that the amended language

would include the phrase “[a]nd touched his penis around her vaginal area.”

Transcript at 79, 84, 86. The jury found Kimble guilty on Counts I and II, the

trial court entered judgment on both counts, and the court later vacated the

conviction on Count I.




         and placing his penis between her legs and moving it in an up and down movement,
         which conduct constituted a substantial step toward the commission of the crime of child
         molesting, a Class “B” Felony, which is performing sexual intercourse with a child under
         14 years of age . . . .
Appellant’s Appendix Volume II at 22.
2
  A June 2016 entry in the CCS indicates that Kimble “is presently incarcerated in South Carolina,” and an
October 2016 entry indicates the court was advised Kimble “is now being held in Wabash County.”
Appellant’s Appendix Volume II at 4-5. The record also contains a Notice to Court filed with the trial court
in March 2016 by the prosecutor stating that in January 1998 the prosecuting attorney filed a fugitive warrant
with the Attorney General of Indiana, that the Attorney General filed a notice to the Governor of South
Carolina stating Kimble was in custody in South Carolina, that there was a warrant for him, notifying the
South Carolina that after all the proceedings there had concluded they should forward the papers and
information to the Extradition Office, Office of the Indiana Secretary of State, and that the received
information that Kimble was serving a lengthy jail term and was believed to be sentenced to fifty years at the
South Carolina Department of Corrections.

Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 4 of 22
                                                   Discussion

                                                         I.


[6]   The first issue is whether the trial court abused its discretion in admitting the

      results of Kimble’s polygraph examination. We generally review the trial

      court’s ruling on the admission or exclusion of evidence for an abuse of

      discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We

      will not reverse an error in the admission of evidence if the error was harmless.

      Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). Errors in the admission of

      evidence are to be disregarded unless they affect the defendant’s substantial

      rights. Id. at 1059. In viewing the effect of the evidentiary ruling on a

      defendant’s substantial rights, we look to the probable effect on the fact finder.

      Id. The improper admission is harmless error if the conviction is supported by

      substantial independent evidence of guilt satisfying the reviewing court that

      there is no substantial likelihood the challenged evidence contributed to the

      conviction. Id.


[7]   As a general matter, Indiana courts look with disfavor on the admission of

      polygraph examinations in criminal proceedings. State v. Wroe, 16 N.E.3d 462,

      466 (Ind. Ct. App. 2014), trans. denied. Nevertheless, the Indiana Supreme

      Court has held that polygraphs are admissible when four prerequisites are

      satisfied:

              (1) the prosecutor, defendant, and defense counsel must all sign a
              written stipulation providing for the defendant’s submission to


      Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 5 of 22
              the examination and for the subsequent admission at trial of the
              results;

              (2) the admissibility of the test results must be within the trial
              court’s discretion as it relates to the examiner’s qualifications and
              the test conditions;

              (3) the opposing party must have the right to cross-examine the
              polygraph examiner if his graphs and opinion are offered in
              evidence; and

              (4) the jury must be instructed that, at most, the examiner’s
              testimony tends only to show whether the defendant was being
              truthful at the time of the examination, and that it is for the jury
              to determine the weight and effect to be given such testimony.


      Id. (citing Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996)). In addition, the

      admission of polygraph evidence is subject to harmless error analysis. Majors v.

      State, 773 N.E.2d 231, 239 (Ind. 2002). “The probable impact of the polygraph

      reference upon the verdict is of prime importance.” Id.


[8]   Kimble asserts that the trial court abused its discretion in allowing the

      polygraph results to be admitted at trial under prerequisite (2) above. He argues

      the polygraph examiner had no specific recollection of the exam and did not

      have the underlying charts from the polygraph machine or his notes of Kimble’s

      conduct or demeanor and that there was no way the trial court could have

      considered the test conditions. He states the test was twenty years old and the

      passage of time would certainly have made the testimony about the test stale,

      and that the absence of the underlying data and charts prevented him from

      making comparisons and showing whether the “lie” determination was a close


      Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 6 of 22
       one using the data graphs and other details that the defense could have used in

       cross-examination.


[9]    The State maintains that the court did not abuse its discretion in admitting

       Kimble’s stipulated polygraph results, and that sufficient evidence was

       presented concerning Clingenpeel’s qualifications and the test results through

       his testimony and the report itself to satisfy the second prerequisite for

       admission. It also argues that any error in admitting the test results was

       harmless because the probable impact of the polygraph results was minimal and

       D.C. consistently testified that Kimble touched her vagina with his hands and

       penis when she was four or five years old.


[10]   The record reveals that Kimble signed the Agreement of Stipulation of

       Polygraph Examination on May 29, 1997, which provided that he voluntarily

       agreed to take a polygraph examination, that he was advised that the agreement

       constituted a waiver of his right to preclude the introduction of the test results

       into evidence, and that he agreed the results of the examination may be used in

       any cause of action which should arise against him. The agreement further

       provided that “[t]he results and/or opinions” of the examination would be

       released in writing by the examiner, that “[t]his written report will be

       introduced into evidence, without objection by either side, at the time of the

       examiner’s testimony at any trial or hearing,” and that the examiner is

       acknowledged “to be an expert in all phases of both administering polygraph

       examinations and in the analysis of polygraph chart recordings.” State’s

       Exhibit 2 at 2-3.

       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 7 of 22
[11]   The record further reveals that the May 30, 1997 polygraph examination report

       prepared by Clingenpeel set forth the procedure used to administer the

       examination to Kimble and the conditions under which the examination was

       administered. In discussing the examination procedure, the report stated that

       the subject was examined in a private polygraph suite with only the examiner

       and the subject present, that “[a]fter an initial pre-test with the subject, a blood

       pressure bladder and cuff was wrapped around the upper part of the subject’s

       right arm, with the bladder centered over the subject’s brachial artery,” and that

       “[t]he bladder was inflated to a point approximating the subject’s arithmetic

       mean blood pressure, or midway between the subject’s systolic and diastolic

       blood pressures, for the purpose of recording a continuous indication of the

       subject’s pulse rate, blood volume, and variations therein.” State’s Exhibit 5.

       The report provided that “[t]wo protruding electrodes were fitted on the

       subject’s index and third fingers on the left hand for the purpose of recording a

       continuous indication of the subject’s sweat gland activity (galvanic skin

       response) and variations therein,” that “[t]wo corrugated rubber tubes were

       fastened around the subject’s upper body, one around the chest area and one

       around the stomach area, for the purpose of recording a continuous indication

       of the subject’s respiratory pattern and variations therein,” that “[t]he seated

       subject was instructed to sit still, keep both feet flat on the floor, avoid

       unnecessary movement during the running of the test, and to answer only with

       a single word – ‘Yes’ or ‘No,’” and that “[a] Lafayette Ambassador Polygraph,

       serial number 209743, to which the above accessories were attached, was then



       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 8 of 22
       activated in accordance with standard procedure, thus initiating the continuous

       and simultaneous recordings described above.” Id.


[12]   The report further provided that “[t]he polygraph technique used for this

       examination was the Zone Comparison Test,” that “[t]hree series of questions

       were to be administered with each series containing exactly the same questions

       previously reviewed and discussed with the subject in the pretest,” that “[t]he

       third test may or may not be asked in the same order, but used the same

       questions,” and that “[t]his enables the examiner to compare the relevant

       questions with the control questions (technical questions necessary to conduct a

       proper test with this technique).” Id. The report set forth the results of the

       examination as follows:

               RESULTS:

               During the pretest portion of the examination, the subject gave
               the following information:

               Mr. Kimble stated that he did not touch the six year old in a
               sexual manner. Mr. Kimble further stated that he did not feel
               that the molest even occurred.

               The subject was given the series, consisting of the three tests
               mentioned above. The results were that he did contain specific
               reactions to the questions pertaining to the specific issue at hand,
               the object of the examination. The following were the relevant
               questions asked, and his response(s):

               Q. Did your penis touch [D.C.’s] vagina?

               A. No.

               Q. Did your penis touch [D.C.’s] vagina while living in Wabash?

       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017 Page 9 of 22
               A. No.

               Q. Did your finger touch [D.C.’s] vagina?

               A. No.


       Id. The report set forth conclusions as follows: “After careful analysis of the

       subject’s responses, the results were found to be: Deception indicated. Hence;

       It is the opinion of this examiner that the subject was not totally truthful in his

       responses to the questions asked.” Id.


[13]   Clingenpeel administered the polygraph examination to Kimble and testified

       that he went to polygraph training for two months in Georgia in 1995, that he

       was a deputy sheriff and conducted polygraph examinations for the Kosciusko

       Sheriff’s Office from 1995 to 1997, and that in 1997 he was offered a job with

       the United States Secret Service. When asked to explain how a polygraph

       examination is set up and conducted, he testified that the examination is based

       on the autonomic nervous system, it measures sweat gland activity, respiration,

       and heartbeat, and that when a body is introduced to a threat the heart rate

       increases, the hands become sweaty, and breathing increases. When asked

       about control questions, Clingenpeel responded that he had control questions,

       which are basically background questions, he had relevant questions that are

       specific to the allegation, he mixes those questions in, he goes over the

       questions prior to the examination with the examinee and tells the examinee

       exactly what questions he will ask and never asks any surprise questions, and

       that he asks the same questions three different times. He stated that examinees

       are nervous and he finds their baseline by giving them a pretest and adjusts the
       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 10 of 22
       polygraph instrument for their baseline, he also makes adjustments between

       questions, he does not ask rapid fire questions but lets the instrument settle, and

       that he makes his readings from the baseline. He testified that he prepared the

       May 30, 1997 polygraph examination report and that he prepared a report after

       every polygraph examination he administered.


[14]   The prosecutor moved to admit the polygraph examination report, and

       Kimble’s defense counsel indicated he had preliminary questions for purposes

       of objection. Defense counsel asked Clingenpeel if he had any independent

       recollection of his examination of Kimble, and Clingenpeel indicated that he

       did not but that he recognized Kimble’s name. Clingenpeel indicated that he

       did not know where the paper printouts generated by the polygraph instrument

       were located and that he had not reviewed those in nearly twenty years, and

       that the report was prepared by him as a polygraph examiner in the normal

       course of business. The court found that Kimble consented to the admission of

       the polygraph examination report and admitted it.


[15]   The prosecutor asked Clingenpeel what he meant when he stated “deception

       indicated” in the conclusion in his report, and he responded: “That he lied to

       me regarding those relevant – three relevant questions.” Transcript at 67. On

       cross-examination, when asked if the examiner has discretion as far as making a

       call regarding deception, Clingenpeel responded affirmatively. He stated that

       “[w]hen they’re close calls, it’s inconclusive.” Id. at 73. The trial court

       instructed the jury and stated:



       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 11 of 22
               Ladies and gentlemen, I do want to instruct you that under the . .
               . law, polygraph tests are not admissible absent stipulation. So
               while I have admitted the results of the stipulation, you are
               cautioned that [the polygraph examination report] tends only to
               show whether [Kimble] was being truthful at the time of the
               examination and it is within your province as the jury what
               weight and effect you will give to [the report] and Mr.
               Clingenpeel’s testimony. Do you understand that? Okay.


       Id. at 74.


[16]   The record reveals that the State presented evidence and elicited testimony from

       Clingenpeel establishing his training and experience and the conditions of the

       examination. Based upon the record, we conclude there was sufficient evidence

       to determine the examiner’s qualifications and test conditions and the trial court

       did not abuse its discretion in admitting the polygraph examination report into

       evidence. See Davidson v. State, 558 N.E.2d 1077, 1085-1086 (Ind. 1990)

       (holding the polygraph examiner testified as to his training and experience and

       the conditions under which the appellant’s examination was conducted and the

       trial court thus had sufficient testimonial foundation before it to rule the

       polygraph results admissible).


[17]   Further, even if the trial court erred in admitting the polygraph examination

       report, we conclude any such error is harmless. D.C. testified as set forth below

       that Kimble touched her with his hands and penis, he touched her “around

       [her] vagina area,” and he “went around it, and then tried to go inside.”

       Transcript at 33-34. During redirect examination of D.C. by the State, the

       prosecutor noted that D.C. had stated in her deposition “I knew he touched

       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 12 of 22
       me” and he touched her “vagina area,” that when asked how certain she was

       that Kimble touched her, she had answered “I’m really certain that’s where he

       touched me at,” and that D.C. agreed that is what she had stated. Id. at 41.

       We also note that the trial court gave the jury a cautionary instruction regarding

       the polygraph examination report, and conclude, in viewing the evidence as a

       whole including D.C.’s testimony, that any error in the admission of the

       polygraph examination report was harmless. See Majors, 773 N.E.2d at 239

       (holding that, viewing the evidence as a whole, the polygraph evidence likely

       had little effect on the jury and any error in its admission was harmless).


                                                         II.


[18]   The next issue is whether the trial court abused its discretion in granting the

       State’s motion to amend the charging information following its presentation of

       its case-in-chief. Kimble argues that his defense was centered around the

       specific allegations of the original Count II, that when preparing for the case

       defense counsel prepared to refute the allegations that Kimble “moved his penis

       up and down” while his penis was between D.C.’s legs, and that, “[b]y allowing

       the amendment, the State was allowed to remove the primary allegation of the

       attempt charge that would have been most indicative of [Kimble’s] intent to

       attempt intercourse.” Appellant’s Brief at 16. The State argues that the

       amendment was not substantive because the material element, namely, that

       Kimble took a substantial step towards sexual intercourse, remained the same,

       that the phrase “moving in an up and down movement” was surplusage not

       required for establishing the attempted child molesting charge, and that without

       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 13 of 22
       the deleted language it was still required to prove that Kimble took a substantial

       step towards sexual intercourse with D.C. The State also argues that, assuming

       Kimble’s cross-examination of D.C. revolved solely around the deleted

       language in the charging information, Kimble had the opportunity to recall

       D.C. for further questioning and did not do so.


[19]   A charging information may be amended at various stages of a prosecution,

       depending on whether the amendment is as to form or substance, which is a

       question of law. Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014), reh’g denied.

       Amendments to a charging information are governed by Ind. Code § 35-34-1-5.

       Id. Subsection (b) of the statute provides in part that the indictment or

       information may be amended in matters of substance before the

       commencement of trial if the amendment does not prejudice the substantial

       rights of the defendant. Id. Subsection (c) provides that, “[u]pon motion of the

       prosecuting attorney, the court may, at any time before, during, or after the

       trial, permit an amendment to the indictment or information in respect to any

       defect, imperfection, or omission in form which does not prejudice the

       substantial rights of the defendant.” Id. (quoting Ind. Code § 35-34-1-5(c)).


[20]   A defendant’s substantial rights include a right to sufficient notice and an

       opportunity to be heard regarding the charge; if the amendment does not affect

       any particular defense or change the positions of either of the parties, it does not

       violate these rights. Id. Ultimately, the question is whether the defendant had a

       reasonable opportunity to prepare for and defend against the charges. Id. at

       405-406. An amendment is one of form and not substance if a defense under

       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 14 of 22
       the original information would be equally available after the amendment and

       the accused’s evidence would apply equally to the information in either form,

       and an amendment is of substance only if it is essential to making a valid charge

       of the crime. Id. at 406 (citations omitted).


[21]   Here, the State’s requested amendments to Count II did not delete an allegation

       essential to making a valid charge of the crime and did not prejudice Kimble’s

       substantial rights. Ind. Code § 35-42-4-3(a) provided at the time of the offense

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

       submits to sexual intercourse or deviate sexual conduct commits child

       molesting, a Class B felony.” A person attempts to commit a crime when,

       acting with the culpability required for commission of the crime, he engages in

       conduct that constitutes a substantial step toward commission of the crime.

       Ind. Code § 35-41-5-1. Count II of the information filed on December 19, 1997,

       alleged:

               [I]n May or June of 1996, at the County of Wabash, and State of
               Indiana, one CHRISTOPHER LEE KIMBLE did attempt to
               commit the crime of child molesting by knowingly or
               intentionally pulling [D.C.’s] pants down, a child under 14 years
               of age, and placing his penis between her legs and moving it in an
               up and down movement, which conduct constituted a substantial
               step toward the commission of the crime of child molesting, a
               Class “B” Felony, which is performing sexual intercourse with a
               child under 14 years of age.


       Appellant’s Appendix Volume II at 22.




       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 15 of 22
[22]   At trial, D.C. testified that Kimble took off her underwear from underneath her

       nightgown, touched her with his hands and penis, and touched her vagina area.

       On re-cross examination, Kimble’s defense counsel stated that Kimble was

       “charged in Count II with an action that included an allegation that he placed

       his penis between your legs and moved it up and down in an up and down

       movement” and asked “[d]o you remember anything like that occurring,” and

       D.C. answered “I do not.” Transcript at 43. The State, after it rested its case-

       in-chief, moved to amend Count II of the information to replace the word

       “pants” with the word “underwear,” to delete the language “and moving it . . .

       in an up and down movement,” and to insert language that Kimble placed his

       penis near her vagina. Id. at 79, 84. Kimble’s defense counsel objected and

       argued that his cross-examination of D.C. was geared specifically toward the

       language in Count II regarding “the penis moving up and down.” Id. at 84.

       The court stated “whether he placed it – rubbed it up and down her leg or

       placed it around her vagina, I don’t think that substantively changes do they

       feel that either of those actions constitute a substantial step.” Id. at 85. The

       court granted the State’s request to amend Count II and stated that the charge

       would include the phrase “[a]nd touched his penis around her vaginal area”

       and that the final instructions would reflect the language of the amended

       charge. Id. at 86. The court instructed the jury:


               The crime of Attempted Child Molesting is a Class B Felony.
               Before you may convict the Defendant, the State must have
               proved each of the following beyond a reasonable doubt. (1) The
               Defendant, Christopher Kimble, (2) when [D.C.] was a child
               under fourteen years of age, (3) knowingly or intentionally, (4)
       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 16 of 22
               did pull [D.C.’s] underwear down and touched his penis around
               her vaginal area, (5) which conduct constituted a substantial step
               toward the commission of the crime of child molesting.


       Id. at 104-105.


[23]   Whether Kimble moved his penis in an up and down movement after he placed

       it between D.C.’s legs was not essential to proving the charge of attempted child

       molesting as a class B felony or to prove that Kimble took a substantial step

       toward the commission of the crime, and the amendment did not affect

       Kimble’s opportunity to prepare for and defend against the charge. The

       amendments to Count II did not prejudice Kimble’s substantial rights and were

       not improper. See Erkins, 13 N.E.3d at 406 (concluding the particular identity

       of the co-conspirator performing the overt act was not essential to making a

       valid conspiracy charge and the State’s amendment did not affect the

       defendant’s ability to prepare a defense); Forney v. State, 742 N.E.2d 934, 939

       (Ind. 2001) (holding the removal of an alleged overt act from the charging

       information did not prejudice the defendant’s substantial rights).


                                                        III.


[24]   The next issue is whether the evidence is sufficient to sustain Kimble’s

       conviction for attempted child molesting as a class B felony. When reviewing

       claims of insufficiency of the evidence, we do not reweigh the evidence or judge

       the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995),

       reh’g denied. Rather, we look to the evidence and the reasonable inferences


       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 17 of 22
       therefrom that support the verdict. Id. We will affirm the conviction if there

       exists evidence of probative value from which a reasonable trier of fact could

       find the defendant guilty beyond a reasonable doubt. Id.


[25]   Kimble argues that D.C.’s testimony was contradictory, that judging solely by

       the acts he completed his intent is not clear, and that D.C.’s statement that he

       “tried to go inside” was made from the viewpoint of an adult who twenty years

       later was asked to recall what happened when she was four years old.

       Appellant’s Brief at 13. The State responds that D.C. testified that Kimble

       “tried to go inside” although she did not recall him penetrating her, Kimble’s

       completed acts were strongly corroborative of his criminal intent, D.C.’s

       testimony was not inherently contradictory or improbable, and the jury was

       fully aware of D.C.’s incomplete memory and nonetheless found her testimony

       convincing. Appellee’s Brief at 13.


[26]   Ind. Code § 35-42-4-3(a) provided at the time of the offense that “[a] person

       who, with a child under fourteen (14) years of age, performs or submits to

       sexual intercourse or deviate sexual conduct commits child molesting, a Class B

       felony.” The culpability requirement of the child molesting statute is knowingly

       or intentionally. See Louallen v. State, 778 N.E.2d 794, 798 (Ind. 2002). A

       person engages in conduct “intentionally” if, when he engages in the conduct, it

       is his conscious objective to do so, and 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. “Sexual intercourse”

       means “an act that includes any penetration of the female sex organ by the male

       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 18 of 22
       sex organ.” Ind. Code § 35-31.5-2-302. The uncorroborated testimony of the

       victim of a sexual attack, even if the victim is a minor, is sufficient to sustain a

       conviction for child molesting. Feyka v. State, 972 N.E.2d 387, 393 (Ind. Ct.

       App. 2012) (citing Morrison v. State, 462 N.E.2d 78, 79 (Ind. 1984)), rev. denied.


[27]   A person attempts to commit a crime when, acting with the culpability required

       for commission of the crime, he engages in conduct that constitutes a

       substantial step toward commission of the crime. Ind. Code § 35-41-5-1. A

       “substantial step” for purposes of the crime of attempt, is any overt act beyond

       mere preparation and in furtherance of intent to commit an offense. Hughes v.

       State, 600 N.E.2d 130, 131 (Ind. Ct. App. 1992). Whether a defendant has

       taken a substantial step toward the commission of the crime is a question of fact

       to be decided by the trier of fact based on the particular circumstances of the

       case. Id. When determining whether the defendant has taken a substantial step

       toward a crime, the focus is on what has been completed, not on what remains

       to be done. Id. at 132.


[28]   “Mens rea can be established by circumstantial evidence and inferred from the

       defendant’s conduct and the natural and usual sequence to which such conduct

       reasonably points.” Boling v. State, 982 N.E.2d 1055, 1057 (Ind. Ct. App. 2013)

       (citing C.L.Y. v. State, 816 N.E.2d 894, 905 (Ind. Ct. App. 2004) (“The intent

       element of child molesting may be established by circumstantial evidence and

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

       such conduct usually points.”), trans. denied ).



       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 19 of 22
[29]   The record reveals that D.C. testified that Kimble entered her bedroom, took off

       his pants, removed her underwear from underneath her nightgown, touched her

       with his hands and penis, and touched around her vagina area. D.C. testified

       that Kimble “went around it, and then tried to go inside.” Transcript at 34.

       When asked “did he have penetration at all,” D.C. replied “[n]ot that I

       remember.” Id. On cross-examination, Kimble’s defense attorney referenced

       D.C.’s previous deposition and stated “you told me that Mr. Kimble came in,

       pulled your underwear down, and then you blacked out,” and D.C. replied

       affirmatively. Id. at 40. On redirect examination, the prosecutor stated “[n]ow,

       of course, we didn’t go down . . . through the rest of that deposition” and noted

       that D.C. was asked “[d]o you recall touching itself or did you black out” and

       that she answered “I knew he touched me, uh, it’s just I think my mind kind of

       forgot how much.” Id. at 41. The prosecutor noted that D.C. was asked which

       private area Kimble touched and that D.C. had replied “[m]y vagina area,” and

       D.C. indicated that was correct. Id. The prosecutor also noted D.C. was asked

       “how certain are you that Mr. Kimble touched you,” that D.C. replied “I’m

       really certain that’s where he touched me at because I have,” that defense

       counsel then interrupted her and noted her reference to blacking out, and that

       D.C. then stated “[t]hat’s from like, I don’t mean black out, that means it’s

       where my mind left it, if that makes sense.” Id. D.C. indicated that is what she

       stated in the deposition.


[30]   To the extent Kimble argues D.C.’s testimony was not believable or inherently

       contradictory, we cannot say that D.C.’s testimony that Kimble removed her


       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 20 of 22
       underwear, touched her with his hands and penis, touched around her vagina

       area, and “then tried to go inside,” Transcript at 34, was so inherently

       improbable or equivocal that no reasonable person could believe it. Kimble

       does not show how the testimony against him was somehow internally

       inconsistent or incredibly dubious. See Surber v. State, 884 N.E.2d 856, 869 (Ind.

       Ct. App. 2008) (holding that the testimony of a six-year-old victim was not

       incredibly dubious despite some inconsistencies and that such inconsistencies

       were appropriate to the circumstances presented, the age of the witness, and the

       passage of time between the incident and the time of her statements and

       testimony), trans. denied.


[31]   A reasonable trier of fact could infer from Kimble’s conduct and the natural and

       usual sequence to which his conduct reasonably points that he knowingly and

       intentionally took a substantial step toward the penetration of D.C.’s female sex

       organ by his male sex organ. Based upon the record, we conclude that the State

       presented evidence of a probative nature from which a reasonable jury as the

       trier of fact could find beyond a reasonable doubt that Kimble committed the

       crime of attempted child molesting as a class B felony. See Boling, 982 N.E.2d

       at 1057-1058 (noting that the victim testified that the defendant “touched her

       ‘front private’ first over her underwear and then under her underwear, directly

       on her skin” and holding that “[t]he natural and usual sequence to which such

       conduct reasonably points is that [the defendant] had taken a substantial step

       toward inserting his finger or fingers into [the victim’s] vagina,” a reasonable

       jury could find that the defendant had attempted to commit deviate sexual


       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 21 of 22
       conduct, and the evidence was sufficient to support the defendant’s conviction

       of attempted child molesting as a class A felony).


                                                   Conclusion

[32]   For the foregoing reasons, we affirm Kimble’s conviction for attempted child

       molesting as a class B felony.


[33]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 85A02-1702-CR-417 |September 26, 2017Page 22 of 22
