MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Nov 30 2016, 7:54 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                     Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Shrum,                                           November 30. 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1604-CR-829
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G04-1505-F1-16218



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016   Page 1 of 10
[1]   Jeremy Shrum molested his nine-year-old, developmentally-delayed daughter,

      S.S. The jury found him guilty as charged of three counts of child molesting,

      two as Level 1 felonies and one as a Level 4 felony. Due to double jeopardy

      concerns, the trial court entered a judgment of conviction only on Count I, a

      Level 1 felony. Shrum contends that his conviction is not supported by

      sufficient evidence and that the trial court abused its discretion in sentencing

      him.


[2]   We affirm.


                                       Facts & Procedural History


[3]   S.S. was born four months premature in August 2005. She suffered two strokes

      shortly after her birth, has cerebral palsy, and the right side of her brain never

      fully developed. S.S. also began having seizures around the age of eight. S.S. is

      developmentally delayed. She lives with her mother (Mother), step-father, two

      sisters, and younger brother. Shrum is the father of S.S., her older sister (C.S.),

      and her younger brother (J.S.). The three children are all close in age. At some

      point after Shrum and Mother ended their relationship, Shrum began exercising

      parenting time with his children on alternating weekends. Mother allowed

      additional weekends when requested by Shrum.


[4]   On Wednesday, April 29, 2015, Shrum sent Mother a text message asking to

      have the children for the upcoming weekend. Mother agreed. While at

      Shrum’s house that Saturday night, May 2, 2015, S.S. slept on the couch in the

      living room, as she often did. C.S. and J.S. slept in the bottom bunk in Shrum’s

      Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016   Page 2 of 10
      bedroom. Shrum’s father also lived in the house and was asleep in his own

      bedroom.


[5]   At some point during the night, S.S. awoke to find Shrum on top of her. S.S.

      was on her back and her pajama pants and pull-up diaper had been removed.

      Shrum had on boxers, a shirt, and pants at the time. He told S.S. to go in the

      bedroom where C.S. and J.S. were sleeping. Upon entering the bedroom, S.S.

      saw a blanket on the floor. Shrum followed her into the bedroom, placed her

      pants and pull-up on the dresser, and instructed her to lay on the blanket.

      Although still wearing pants, Shrum exposed his penis at some point.


[6]   Shrum spread S.S.’s legs apart and lifted them as he told S.S. to scoot up. He

      then placed one of his hands on the bed and another on the floor and with his

      knees on the ground leaned over his nine-year-old daughter. According to S.S.,

      he then told her to “grab his wiener” and “stick it in [her] pee hole.” Transcript

      at 37. S.S. tried to comply but his “wiener” would not go in her “pee hole”.1

      She testified, however, that she felt his “wiener” touch her “pee hole” and that

      it felt “really gross.” Id. at 38. S.S. indicated that her “pee hole” felt wet.

      Shrum also attempted on his own to put his “wiener” in while supporting

      himself above her. He became mad when it was not going in and was “yelling

      at [S.S.] in a quiet voice.” Id. at 71. His hand then slipped from the bed and hit

      S.S. near her eye. She began to cry, which caused her sister and brother to stir.



      1
       S.S. described a “wiener” as the body part that “boys use to pee” and her “pee hole” as the body part in the
      middle of her body that she uses to “pee”. Id. at 37.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016          Page 3 of 10
      Shrum promptly stood up and told S.S. to go into the bathroom and put her

      pull-up and pants back on.


[7]   The following day, C.S. overheard Shrum apologizing and asking S.S. not to

      tell anyone. He also bought a pool for the children to use on Sunday. While

      alone swimming with C.S., S.S. told her about the sexual abuse. Though not

      customary, Shrum kept the children another night. Mother picked them up at

      school Monday afternoon. After they were home, Mother overheard a

      conversation between S.S. and C.S. that led her to inquire further. S.S. told

      Mother what had happened, and Mother immediately called the police.


[8]   On May 5, 2015, S.S. was seen by Casey O’Neal, a sexual assault nurse. When

      O’Neal asked S.S. if she knew why she was there, S.S. replied, “Yes. Because

      my dad put his wiener in my pee hole and made me touch his wiener.” Id. at

      136. Thereafter, when O’Neal was positioning S.S. in stirrups for the exam,

      S.S. stated, “This is how daddy made me lay.” Id. O’Neal did not observe any

      injuries to S.S.’s genital area, but S.S. did complain of pain during the vaginal

      exam.


[9]   On May 11, 2015, the State charged Shrum with four counts: Count I, child

      molesting as a Level 1 felony; Count II, child molesting as a Level 1 felony;

      Count III, child molesting as a Level 4 felony; and Count IV, battery as a Level

      5 felony. Count IV was later dismissed on the State’s motion. Shrum was tried

      by a jury on February 22 and 23, 2016. The jury found him guilty as charged.

      At the sentencing hearing on March 23, 2016, the trial court vacated Counts II


      Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016   Page 4 of 10
       and III on double jeopardy grounds and sentenced Shrum on Count I to thirty-

       five years in prison, with five of those years suspended to probation. Shrum

       now appeals his conviction and sentence. Additional facts will be provided

       below as needed.


                                           Discussion & Decision


                                        Sufficiency of the Evidence


[10]   Shrum contends that the evidence was insufficient to support his conviction for

       child molesting as a Level 1 felony. Specifically, he argues that there was scant

       evidence of penetration because S.S. testified that, despite trying, Shrum’s penis

       “didn’t go in” and there was no medical or physical evidence of penetration.

       Transcript at 38.


[11]   Our standard of review for sufficiency of the evidence claims is well settled.

       We consider only the probative evidence and reasonable inferences supporting

       the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

       assess the credibility of witnesses or reweigh evidence, and we will affirm unless

       no reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Id. It is not necessary that the evidence overcome every

       reasonable hypothesis of innocence; rather, the evidence will be found sufficient

       if an inference may reasonably be drawn from it to support the conviction. Id.

       at 147.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016   Page 5 of 10
[12]   To obtain a conviction for Level 1 child molesting as charged, the State was

       required to prove that Shrum, being over the age of twenty-one, knowingly or

       intentionally performed sexual intercourse with S.S., a child under the age of

       fourteen. Ind. Code § 35-42-4-3(a)(1). The legislature has defined “sexual

       intercourse” as “an act that includes any penetration of the female sex organ by

       the male sex organ.” Ind. Code § 35-31.5-2-302. “The statute does not require

       that the vagina be penetrated, only that the female sex organ be penetrated.”

       Thompson v. State, 674 N.E.2d 1307, 1311 (Ind. 1996). Penetration of the

       external genitalia is sufficient to sustain a conviction, and “any reference to the

       part of the female anatomy which is used to urinate also refers to the external

       genitalia, and consequently, to the ‘sex organ.’” Scott v. State, 771 N.E.2d 718,

       724-25 (Ind. Ct. App. 2002), trans. denied, disapproved of on other grounds by

       Louallen v. State, 778 N.E.2d 794 (Ind. 2002). “Proof of the slightest penetration

       is sufficient to sustain convictions for child molesting.” Spurlock v. State, 675

       N.E.2d 312, 315 (Ind. 1996).


[13]   Shrum likens this case to Spurlock. The victim in Spurlock was twelve years old

       at the time of her molestation and, according to our Supreme Court, “of an age

       to understand and respond to the questions” at trial. Id. at 315. She testified

       that the defendant tried to have sexual intercourse with her on one occasion.

       When asked if the defendant had put his penis inside her, the victim responded,

       “I don’t know.” Id. Although the victim testified that the defendant’s penis

       touched her vagina, the Court observed that she “never said that it penetrated

       or went inside, and explicitly said that she did not know whether that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016   Page 6 of 10
       occurred.” Id. The Court also found that the victim had only a generalized

       understanding of the term “vagina”, which “support[ed] the view that any

       penetration, however slight, would have been understood by [the victim] as

       penetration of the vagina.” Id. In the absence of testimony that any

       penetration occurred or other evidence of penetration, the Court concluded that

       “the jury had no evidence from which it could find Spurlock guilty beyond a

       reasonable doubt of the count of child molesting that was based upon an alleged

       act of intercourse.” Id. See also Adcock v. State, 22 N.E.3d 720, 728-29 (Ind. Ct.

       App. 2014) (twenty-year-old witness testified regarding earlier molestations and

       indicated that the abuse escalated to the defendant rubbing his penis against her

       “private area, my vagina”; “[victim] had the capability of describing such

       penetration by Adcock’s penis if it had occurred, but she did not” and there was

       no medical or physical evidence of penetration).


[14]   Here, the victim was a developmentally-disabled, nine-year-old girl. She

       testified that despite more than one attempt, her father’s penis “didn’t go in”

       her “pee hole”. Transcript at 38. Were this all the evidence, we would be

       constrained to reach the same result as Spurlock. S.S. provided much more

       detailed testimony, however, that must not be overlooked.


[15]   S.S. described how her father instructed her to lay on the ground. He then

       positioned S.S. with her legs bent and spread apart for easier access to her

       vagina. On his hands and knees, Shrum lowered his body over S.S. and told

       her to “grab his wiener” and “stick it in [her] pee hole.” Id. at 37. S.S. tried to

       comply with her father’s request but his penis simply would not go in. S.S. felt

       Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016   Page 7 of 10
       the penis touch her “pee hole”, which felt “really gross” and made her “pee

       hole” wet. Id. at 38. Shrum became mad when S.S. could not insert his penis

       as directed, and he made another attempt on his own. The assault ended only

       when his hand slipped from the bed and struck S.S. in the eye.


[16]   Upon meeting with the sexual assault nurse – O’Neal, S.S. informed O’Neal

       that she knew she was being examined because “my dad put his wiener in my

       pee hole and made me touch his wiener.” Id. at 136. Further, while being

       positioned in the stirrups for the vaginal exam, S.S. volunteered, “This is how

       daddy made me lay.” Id.


[17]   In sum, the record reveals that Shrum made at least two attempts to penetrate

       S.S.’s vagina with S.S. carefully positioned by Shrum for easier entry. While

       his adult penis would not go in the child’s “pee hole”, S.S. testified that it did

       touch her “pee hole”. S.S.’s limited ability to understand and differentiate

       between various areas of her genitalia is understandable given her age and

       developmental delays. Considering the totality of the evidence, we conclude

       that the jury could reasonably infer that Shrum’s penis at least slightly

       penetrated S.S.’s external genitalia.


                                                   Sentencing


[18]   Shrum next argues that the trial court abused its discretion when it found the

       victim’s age to be a sentencing aggravator. Shrum correctly observes that the

       crime for which he was convicted required that the State prove the victim was

       under the age of fourteen. I.C. § 35-42-4-3.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016   Page 8 of 10
[19]   “Where a trial court’s reason for imposing a sentence greater than the advisory

       sentence includes material elements of the offense, absent something unique

       about the circumstances that would justify deviating from the advisory

       sentence, that reason is ‘improper as a matter of law.’” Gomillia v. State, 13

       N.E.3d 846, 852-53 (Ind. 2014) (quoting Anglemyer v. State, 868 N.E.2d 482, 491

       (Ind. 2007)). In this case, however, the trial court expressly indicated at

       sentencing, “I can’t use age as an aggravator because it’s an element of the

       offense.” Transcript at 266. In its sentencing statement, the court then

       specifically found as aggravating the fact that the victim had disabilities and that

       Shrum was in a position of trust with the victim. 2 As mitigating, the court

       addressed Shrum’s minimal criminal history and his mental health issues.


[20]   After setting out the aggravating and mitigating circumstances, the court

       generally addressed the harm and damage to child molest victims, and the court

       expressed its desire that S.S. receive counseling. In this context, the court noted

       S.S.’s emotional responses when looking at Shrum during her testimony, her

       age at trial and at the time of the offense, and the traumatic nature of this event

       in S.S.’s life. When read in context, it is clear that the trial court’s reference to

       the age of the victim was not intended as a finding of aggravation, which the



       2
           In this regard, the trial court stated:

                It’s an aggravating circumstance that the victim is a person who does have disabilities. And for
                the record, she’s special needs due to her disabilities from birth which include Cerebral Palsy, a
                brain injury resulting from a stroke, and developmental delays….And it’s an aggravating
                circumstance that the Defendant was in a position of trust with the victim as he’s the victim’s
                father.
       Id. at 273-74.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016               Page 9 of 10
       trial court recognized would be improper. The trial court’s written sentencing

       statement further reveals that the victim’s age was not used by the trial court as

       an aggravating factor. Accordingly, there is no basis for Shrum’s abuse of

       discretion argument.


[21]   Judgment affirmed.


[22]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-829 | November 30, 2016   Page 10 of 10
