      MEMORANDUM DECISION
                                                                                FILED
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                         Jul 18 2018, 10:41 am

      precedent or cited before any court except for the                        CLERK
      purpose of establishing the defense of res judicata,                  Indiana Supreme Court
                                                                               Court of Appeals
      collateral estoppel, or the law of the case.                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Ruth A. Johnson                                           Curtis T. Hill, Jr.
      Marion County Public Defender                             Attorney General of Indiana
      Indianapolis, Indiana
                                                                Lee M. Stoy
      Joel M. Schumm                                            Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      C.M.,                                                     July 18, 2018

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1712-JV-2762
              v.                                                Appeal from the Marion Superior
                                                                Court, Juvenile Division

      State of Indiana,                                         The Honorable Marilyn Moores,
                                                                Judge
      Appellee-Plaintiff.
                                                                The Honorable Geoffrey Gaither,
                                                                Magistrate
                                                                Trial Court Cause No.
                                                                49D09-1708-JD-1120



      Barnes, Senior Judge.


                                               Case Summary
[1]   C.M. appeals his adjudication as a juvenile delinquent for committing an act

      that would be Level 3 felony attempted child molesting. We affirm.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018          Page 1 of 7
                                                     Issues
[2]   C.M. raises two issues, which we restate as:


                         I.    whether C.M.’s due process rights were
                               violated by an error in the petition; and

                        II.    whether the evidence is sufficient to sustain
                               C.M.’s adjudication.


                                                      Facts
[3]   On July 16, 2017, Barbara Humphrey was babysitting her four-year-old great

      niece, H.S. H.S. was swinging in her fenced backyard, and Humphrey went

      inside to use the restroom. When she returned to the backyard, she could not

      locate H.S. She saw that the side gate was open and walked through the gate.

      She saw H.S. on the ground on her stomach with her arms out and her pants

      and underwear pulled down. Thirteen-year-old C.M., who lived next door, was

      on top of H.S. and had his pants and underwear pulled down. He was making

      a thrusting motion on top of H.S. When Humphrey yelled at C.M., he jumped

      away. H.S. was crying hysterically and had urinated on herself, which was

      unusual for H.S. H.S. told Humphrey that C.M. “said he was gonna show me

      how he could put his ‘pee pee’ in my butt.” Tr. Vol. II p. 25.


[4]   The State alleged that C.M. was delinquent for committing acts that would be

      Level 3 felony attempted child molesting and Level 4 felony child molesting.

      The petition alleged:

              Count 1 Attempted Child Molesting, Level 3 Felony


      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018   Page 2 of 7
              I.C. 35-42-4-3(a) and I.C. 35-41-5-1
              On or about the 16th day of July, 2017, said child did attempt to
              knowingly or intentionally perform or submit to sexual intercourse or
              other sexual conduct (as defined in IC 35-3l.5-2-221.5) with a Child
              under fourteen (14) years of age, to wit: [H.S.], who was four (4) years
              of age, when [H.S.] was on her [stomach] on the ground with her
              pants and underwear pulled halfway down and said child was on top
              of [H.S.] with his pants and underwear pulled all the way down, which
              constituted a substantial step toward the commission of Attempted
              Child Molesting, Level 3 Felony.


              Count 2 Child Molesting, Level 4 Felony
              I.C. 35-42-4-3(b)
              On or about the 16th day of July, 2017, said child did with [H.S.], a
              child under fourteen (14) years of age, to wit: 4 years of age, perform
              or submit to fondling or touching with intent to arouse or satisfy the
              sexual desires of [C.M. or H.S.].


      Appellant’s App. Vol. II p. 24; Tr. Vol. II p. 5. After a fact-finding hearing, the

      trial court found that the allegations were true. Due to double jeopardy

      concerns, the trial court “merged” the Level 4 felony adjudication. Appellant’s

      App. Vol. II p. 180. C.M. now appeals.


                                                   Analysis
                                                I. Due Process

[5]   C.M. argues that his due process rights were violated because the petition

      alleged a “non-existent offense” of “attempted attempted child molesting.”

      Appellant’s Br. pp. 8, 10. C.M. points out the petition alleged that he

      committed a “substantial step toward the commission of Attempted Child

      Molesting, Level 3 Felony,” which he interprets as attempted attempted child
      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018   Page 3 of 7
      molesting. Appellant’s App. Vol. II p. 24. C.M. contends that this offense does

      not exist.


[6]   First, we note that C.M. did not object to this language in the petition. “‘The

      proper method to challenge deficiencies in a charging information is to file a

      motion to dismiss the information, no later than twenty days before the

      omnibus date.’” Leggs v. State, 966 N.E.2d 204, 207 (Ind. Ct. App. 2012)

      (quoting Miller v. State, 634 N.E.2d 57, 60 (Ind. Ct. App. 1994) (citing Ind.

      Code § 35-34-1-4)). C.M. did not object or move for dismissal of the petition

      and has waived the issue.


[7]   To avoid waiver, C.M. must demonstrate fundamental error. See id. Although

      C.M. makes no fundamental error argument, we will address the issue. “[I]t is

      a due process violation for the State to convict people of crimes that do not

      exist.” Wilhoite v. State, 7 N.E.3d 350, 352 (Ind. Ct. App. 2014). “For error in a

      charging information to be fundamental, ‘it must mislead the defendant or fail

      to give him notice of the charges against him so that he is unable to prepare a

      defense to the accusation.’” Leggs, 966 N.E.2d at 207 (quoting Miller, 634

      N.E.2d at 61). C.M. was adjudicated a delinquent child for committing an act

      that would be Level 3 felony attempted child molesting, not attempted

      attempted child molesting. The language on the petition was merely a

      scrivener’s error, and there is no indication that the parties were confused about

      the charge. C.M. does not argue that he was misled by the petition or he was

      unable to formulate a defense. We find no fundamental error here.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018   Page 4 of 7
                                       II. Sufficiency of the Evidence

[8]    Next, C.M. argues that the evidence is insufficient to sustain his adjudication as

       a delinquent child. 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 that crime beyond a reasonable

       doubt. Z.A. v. State, 13 N.E.3d 438, 439 (Ind. Ct. App. 2014). When reviewing

       the sufficiency of the evidence supporting a juvenile adjudication, we neither

       reweigh the evidence nor judge the credibility of the witnesses. Id. We consider

       only “the evidence of probative value and the reasonable inferences that support

       the determination.” Id.


[9]    To prove Level 3 felony child molesting if committed by an adult, the State had

       to prove that C.M. knowingly or intentionally attempted to perform or submit

       to sexual intercourse or other sexual conduct with H.S., who was under

       fourteen years old. C.M. argues that there was no evidence that he intended to

       make “contact with H.S.’s anus.” Appellant’s Br. p. 13. He points to his young

       age and argues that “age does matter in assessing intent.” Appellant’s Reply

       Br. p. 7.


[10]   We addressed a similar argument in T.G. v. State, 3 N.E.3d 19, 24-25 (Ind. Ct.

       App. 2014), trans. denied. There, we noted:

               This Court has held that “the Legislature intended that minors under
               the age of fourteen may be adjudged to be juvenile delinquents under
               the child molesting statute.” W.C.B. v. State, 855 N.E.2d 1057, 1061
               (Ind. Ct. App. 2006) (citing State v. J.D., 701 N.E.2d 908, 910 (Ind. Ct.
               App. 1998)), trans. denied (1999). However, “‘in situations where there

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018   Page 5 of 7
               clearly is no criminal intent, such as where very young children engage
               in innocent sexual play, an allegation of juvenile delinquency based
               upon such play would be inappropriate.’” Id. (quoting J.D., 701
               N.E.2d at 909-10). When a child is accused of child molestation,
               evidence that the accused intentionally touched the younger child’s
               genitals may not be, by itself, sufficient to establish that the touching
               was committed with the intent to arouse or satisfy sexual desire.
               Although “the intent to arouse or satisfy sexual desires required to
               support a class C felony child molesting conviction may be inferred
               from evidence that the accused intentionally touched a child’s
               genitals,” Spann [v. State, 850 N.E.2d 411, 414 (Ind. Ct. App.
               2006)](emphasis added), our standard also provides that the “intent
               element of child molesting 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.” Bowles [v.
               State, 737 N.E.2d 1150, 1152 (Ind. 2000)]. Therefore, in assessing
               whether the evidence is sufficient to establish that T.G. touched
               T.A.G. with the intent to arouse or satisfy sexual desire, we will
               consider whether the circumstantial evidence and the actor’s conduct
               and the natural and usual sequence to which such conduct usually
               points supports the inference.
       T.G., 3 N.E.3d at 24-25.


[11]   Here, C.M. was thirteen years old, and H.S. was four years old. C.M. is “not a

       very young child,” and is significantly older than H.S. Id. at 25. Humphrey left

       H.S. swinging in the fenced backyard. When she returned a couple minutes

       later, she found H.S. and C.M. outside the opened gate. H.S. was on her

       stomach with her pants and underwear down, and C.M. was on top of H.S.

       with his pants and underwear down and was making a thrusting motion. H.S.

       was crying hysterically and had urinated on herself. H.S. told Humphrey that




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018   Page 6 of 7
       C.M. “said he was gonna show me how he could put his ‘pee pee’ in my butt.”1

       Tr. Vol. II p. 25. Despite C.M.’s young age, the evidence supports the inference

       that C.M. knowingly or intentionally attempted to perform or submit to sexual

       intercourse or other sexual conduct with H.S., who was under fourteen years

       old. The evidence is sufficient to sustain C.M.’s adjudication. See, e.g., T.G., 3

       N.E.3d at 25 (holding that the evidence was sufficient to sustain the true

       finding).


                                                  Conclusion
[12]   C.M.’s due process rights were not violated, and the evidence is sufficient to

       sustain his adjudication. We affirm.


[13]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       1
        At the fact-finding hearing, C.M. objected to this testimony by Humphrey. On appeal, C.M. mentions the
       objection but does not appeal the admission of the evidence.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JV-2762 | July 18, 2018          Page 7 of 7
