                                                                     FILED
MEMORANDUM DECISION
                                                                Aug 11 2016, 7:22 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                      Gregory F. Zoeller
Elkhart, Indiana                                         Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason D. Penninger,                                      August 11, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A04-1509-CR-1545
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1411-FA-27



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 1 of 15
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jason D. Penninger (Penninger), appeals his conviction

      for child molesting as a Class A felony, Ind. Code § 35-42-4-3(a)(1) (2012); and

      child molesting as a Class C felony, I.C. § 35-42-4-3(b) (2012).


[2]   We affirm.


                                                    ISSUES

[3]   Penninger raises two issues on appeal, which we restate as follows:

      (1) Whether the State presented sufficient evidence to support Penninger’s

      conviction for child molesting as a Class A felony; and

      (2) Whether the trial court abused its discretion by admitting hearsay statements

      into evidence.


                           FACTS AND PROCEDURAL HISTORY

[4]   In January of 2013, A.G. (Mother) met and began dating one of her co-

      workers, Penninger. At the time, Mother lived in a small, two-bedroom

      apartment in Goshen, Elkhart County, Indiana, with her five-year-old daughter,

      N.G., and her mother/N.G.’s grandmother, L.S. (Grandmother). Mother and

      Grandmother were employed by the same company in Goshen; Grandmother

      worked first shift (6:00 a.m. to 2:30 p.m.), and Mother worked second shift

      (3:00 p.m. to 11:30 p.m.). During the week, Mother would pick N.G. up from

      kindergarten on her way to work and drop N.G. off with Grandmother.

      Grandmother would then take N.G. home to play with her, feed her, bathe her,

      and put her to bed.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 2 of 15
[5]   Penninger worked second shift when he met Mother, but he was transferred to

      first shift shortly thereafter. Between January and March of 2013, Penninger

      frequently spent time at Mother’s apartment, and N.G. got along well with

      Penninger. In fact, Mother and Penninger rarely spent time alone together

      because they were usually accompanied by N.G. Even when Mother was not

      there, Penninger had a key to the apartment and would sometimes stop over to

      eat dinner or watch television with Grandmother and N.G. while he waited for

      Mother to get home. Although Mother denied that she was involved in a

      sexual relationship with Penninger, both Mother and Penninger stated that

      Penninger frequently stayed overnight during those few months, and he slept in

      Mother’s bed. Because N.G. shared a bedroom with Mother, on the nights that

      Penninger spent the night, N.G. slept in Grandmother’s room.


[6]   At some point in mid-to-late March 2013, Mother was at work, and

      Grandmother was babysitting N.G. On this night, Grandmother put N.G. to

      bed, in N.G.’s own bed in Mother’s room, between 9:00 p.m. and 9:30 p.m.

      Before tucking herself into bed, Grandmother turned on the hallway light as a

      nightlight for N.G., and Grandmother left her own bedroom door open about

      four or five inches in case N.G. needed her. After Grandmother fell asleep, she

      heard the thud of footsteps in the hallway and, still half-asleep, assumed that

      Mother had arrived home from work. However, when Grandmother

      subsequently heard blood-curdling screams and the sound of N.G. crying,

      Grandmother looked at her clock and realized that it was still too early for

      Mother to be home from work. At that point, Grandmother observed that her


      Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 3 of 15
      bedroom door, which she had left ajar, was shut. Grandmother walked out to

      the living room and saw N.G. lying face down on the couch. On the floor next

      to her was Penninger, who had arrived at the apartment unbeknownst to

      Grandmother. Penninger was patting N.G.’s back in an apparent effort to

      soothe her. When Grandmother asked N.G. what was wrong, Penninger

      answered that N.G. was crying because she wanted Mother. Both Penninger

      and N.G. were fully clothed—with N.G. wearing pajamas consisting of shorts

      with an elastic waistband and a t-shirt, and Grandmother did not witness any

      inappropriate conduct. However, Grandmother stated that she had never

      before heard N.G. scream or cry like that. Grandmother took N.G. to

      Grandmother’s bedroom, but N.G. refused to tell Grandmother why she was so

      upset. Grandmother attempted to console N.G., who continued to cry until she

      fell asleep.


[7]   On April 3, 2013, N.G. disclosed to her aunt, C.S. (Aunt), that she had been

      touched inappropriately. Using dolls to demonstrate what had happened, N.G.

      “put one of the heads down by the private areas.” (Tr. p. 244). Although N.G.

      indicated that she was scared that Mother “was going to hate her,” Aunt

      convinced N.G. to tell Mother what had happened. (Tr. p. 239). The next

      morning, April 4, 2013, Mother contacted the police and reported that N.G.

      had been molested. Later that day, Sara Atkinson, a licensed social worker,

      conducted a forensic interview with N.G. During the interview, N.G. was

      “very articulate,” and, using age-appropriate terminology, described acts of

      sexual molestation to which she had been subjected. (Tr. p. 394).


      Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 4 of 15
[8]   On April 19, 2013, N.G. received a medical evaluation at the Fort Wayne

      Sexual Assault Treatment Center. A board-certified sexual assault nurse

      examiner, Leslie Cook (Nurse Cook), examined N.G. In order to formulate a

      diagnosis and treatment plan, Nurse Cook questioned N.G. about her reported

      molestation. N.G. reported


              that Jason [i.e., Penninger] touched her privacy with his hand
              and . . . she indicated that her privacy was where she goes pee
              from. She went on to say that it was on her skin, that he touched
              on the inside, and that it made her privacy feel like a needle. She
              also stated that she saw some blood in her underwear afterwards.


      (Tr. p. 347). N.G. further stated

              that [Penninger] had pulled his pee-pee out of his pants and had
              asked her to touch it. And she indicated to me that she did not.
              And when I asked her if these events happened one time or more
              than one time, she indicated to me more than one time.


      (Tr. p. 348). When Nurse Cook conducted a physical examination, she found

      no injuries to N.G.’s internal structures—i.e., “the labia minora, the urethra, the

      hymen, the vagina, the clitoris, the clitoral hood.” (Tr. p. 360). However,

      Nurse Cook explained that the lack of documented injuries is not abnormal in

      light of the fact that the type of sex acts involved (i.e., the use of fingers) “don’t

      always cause injury.” (Tr. p. 359). Furthermore, the tissue comprising these

      structures is “more of a mucous membrane” which has rapid healing

      capabilities. Thus, Nurse Cook would not necessarily expect to see any injuries

      unless the sex act occurred within the seventy-two hours preceding the


      Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 5 of 15
       examination. Nurse Cook also observed that N.G.’s hymen was

       “unestrogenized.” (Tr. p. 355). According to Nurse Cook, the lack of estrogen

       in a prepubescent hymen causes it to be “extremely painful to touch.” (Tr. p.

       357).


[9]    As a result of N.G.’s allegations, the Elkhart County Sheriff’s Department

       conducted an interview with Penninger. Penninger denied that he had ever

       touched N.G. inappropriately, specifically claiming that he does not “have time

       to do this sort of thing.” (Tr. p. 121). When confronted with the incident in

       which Grandmother woke up to a hysterical N.G., Penninger first explained

       that he had been in the living room and that he and Grandmother had both

       gone into N.G.’s bedroom to comfort her when they heard her crying. Later in

       the interview, the detective indicated that it had been reported that N.G. had

       actually been in the living room with Penninger when she was crying. At that

       point, Penninger altered his version of events and stated that N.G. had come

       out of her bedroom crying, and he was in the living room with her trying to

       console her and ascertain the cause of her distress.


[10]   On November 20, 2014, the State filed an Information, charging Penninger

       with Count I, child molesting as a Class A felony; and Count II, child molesting

       as a Class C felony. On July 27 through 29, 2015, the trial court conducted a

       jury trial. N.G., who was eight years old at the time of trial, testified that

       Penninger had touched her “no-no spot” with “[h]is hand” “[u]nder” her

       clothing when she was five years old. (Tr. p. 418). N.G. indicated that he had

       touched “[b]oth” the inside and outside of her “no-no spot.” (Tr. p. 419).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 6 of 15
       When asked to define her “no-no spot,” N.G. pointed to her pants and

       indicated that it was on the front side and would be covered by a bathing suit.

       (Tr. p. 418). N.G. stated that the touching had occurred “during the night”

       while she was on the couch, in the living room. (Tr. p. 419). During that same

       interaction, N.G. testified that Penninger directed N.G. to touch “[h]is no-no

       spot” with her hand and that it felt “[s]limy.” (Tr. pp. 420, 422). N.G. added

       that Penninger told her to keep it a secret. Over Penninger’s hearsay objections,

       Nurse Cook testified as to her findings and the statements that N.G. made

       during her medical examination, including the fact that N.G. had identified

       Penninger as the perpetrator. After the State rested its case-in-chief, Penninger

       moved for a directed verdict as to Count I, Class A felony child molesting,

       arguing that there was no evidence of penetration of the female sex organ. The

       trial court denied Penninger’s motion. At the close of the evidence, the jury

       returned a guilty verdict on both Counts, and the trial court entered a judgment

       of conviction on the same. On August 27, 2015, the trial court held a

       sentencing hearing. The trial court imposed a term of forty years on Count I

       and five years on Count II, to run consecutively, for an aggregate sentence of

       forty-five years, fully executed in the Indiana Department of Correction.


[11]   Penninger now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                         I. Sufficiency of the Evidence

[12]   Penninger first claims that the State presented insufficient evidence to support

       his conviction for child molesting as a Class A felony. Our standard of review
       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 7 of 15
       for cases dealing with the sufficiency of evidence is well established. We will

       consider only the probative evidence and the reasonable inferences supporting

       the verdict in order to determine whether a reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt. Mastin v. State, 966

       N.E.2d 197, 201-02 (Ind. Ct. App. 2012), trans. denied. In so doing, we neither

       assess the credibility of witnesses nor reweigh the evidence. Id. at 202.


[13]   In order to convict Penninger of Class A felony child molesting, the State was

       required to prove that he, being “at least twenty-one (21) years of age,” “with a

       child under fourteen (14) years of age, perform[ed] or submit[ted] to sexual

       intercourse or deviate sexual conduct.” I.C. § 35-42-4-3(a)(1) (2012). At the

       time of the offense, “deviate sexual conduct” was defined as “an act involving

       (1) a sex organ of one (1) person and the mouth or anus of another person; or

       (2) the penetration of the sex organ or anus of a person by an object.” I.C. § 35-

       31.5-2-94 (2012). On appeal, Penninger contends that the State failed to carry

       its burden because there is no evidence of sexual deviate conduct. Specifically,

       Penninger asserts that no evidence was presented at trial to show that he

       penetrated N.G.’s sex organ by an object. 1


[14]   Penninger contends that the only evidence presented at trial establishes that

       Penninger touched “the inside and outside of [N.G.’s] no-no spot,” but it is




       1
         Both parties agree that the first part of the statute for establishing deviate sexual conduct, i.e., an act
       involving a sex organ of one person and the mouth or anus of another person, is not relevant given the facts
       of this case. I.C. § 35-31.5-2-94(1) (2012).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016            Page 8 of 15
       unclear whether that touching amounted to a penetration. (Appellant’s Br. p.

       8). Additionally, Penninger directs our attention to the testimony of Nurse

       Cook, who stated that there was no medical or physical evidence of

       penetration. Accordingly, Penninger insists that his case is analogous to

       Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), on reh’g, in which our

       supreme court stated that “evidence of a touching without more does not

       support a conviction for child molesting as a Class A felony, which requires

       ‘penetration of the female sex organ.’” 2 In Spurlock, “[t]he victim testified that

       Spurlock’s penis touched her vagina; however, she never said that it penetrated

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

       occurred.” Id. In addition, “there was no medical or physical evidence of

       penetration.” Id. Thus, the supreme court determined that there was

       insufficient evidence to sustain Spurlock’s conviction. Id.


[15]   We find the present case to be sufficiently distinct from Spurlock. Although

       Penninger is correct in his assertion that there is no medical or physical

       evidence of penetration, which Nurse Cook explained is not abnormal in these

       types of cases, unlike in Spurlock, there is testimony in the present case that

       Penninger’s hand penetrated N.G.’s sex organ. It is well established that “proof

       of the slightest penetration is enough to support a conviction.” Id. In addition,

       the deviate sexual conduct statute “does not require that the vagina be



       2
         Although the alleged Class A felony child molesting act in Spurlock was sexual intercourse rather than
       deviate sexual conduct, both definitions require penetration of the sex organ—the former “by the male sex
       organ” and the latter “by an object.” See I.C. §§ 35-31.5-2-94; -302 (2012).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016          Page 9 of 15
       penetrated, only that the female sex organ, including the external genitalia, be

       penetrated.” Smith v. State, 779 N.E.2d 111, 115 (Ind. Ct. App. 2002), trans.

       denied. Here, N.G. clearly testified at trial that Penninger touched “[b]oth” the

       inside and outside of her “no-no spot” with his hand, and she knew his hand

       was on the inside of her sex organ because she “could feel it.” (Tr. p. 419). See

       Smith, 779 N.E.2d at 115 (“[A] detailed anatomical description of penetration is

       unnecessary.”). Furthermore, Nurse Cook testified that, during her

       examination of N.G., N.G. described that Penninger “touched her privacy with

       his hand”—identifying her “privacy” as “where she goes pee from.” (Tr. p.

       347). N.G. stated that “it was on her skin,” “on the inside,” and that she saw

       some blood in her underwear afterwards. (Tr. p. 347). N.G. also indicated that

       Penninger hurt her, explaining “that it made her privacy feel like a needle.”

       (Tr. p. 347). As Nurse Cook illustrated, an unestrogenized hymen such as

       N.G.’s is “extremely painful to touch.” (Tr. p. 357). Accordingly, based on

       this evidence, we find that the jury had sufficient evidence from which it could

       conclude that Penninger penetrated N.G.’s sex organ with an object—that is,

       his hand.


                                                   II. Hearsay

[16]   Penninger next claims that the trial court abused its discretion by admitting

       hearsay testimony into evidence. The admission or exclusion of evidence “is

       squarely within a trial court’s discretion and we accord it great deference on

       appeal.” VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013). We will not

       reverse a trial court’s ruling on an evidentiary matter “unless it is clearly


       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 10 of 15
       contrary to the logic and effect of the facts and circumstances of the case or

       misinterprets the law.” Id.


[17]   In this case, Penninger challenges Nurse Cook’s testimony regarding the

       disclosures N.G. made during her medical examination, particularly the

       identification of Penninger as the perpetrator. According to Penninger, this

       testimony was hearsay and should have been excluded. “Hearsay” is defined as

       a statement that: “(1) is not made by the declarant while testifying at the trial or

       hearing; and (2) is offered in evidence to prove the truth of the matter asserted.”

       Ind. Evidence Rule 801(c). Hearsay is inadmissible unless a specific exception

       to the hearsay rule applies. Evid. R. 802. One particular exception permits the

       admission of a statement that: “(A) is made by a person seeking medical

       diagnosis or treatment; (B) is made for—and is reasonably pertinent to—

       medical diagnosis or treatment; and (C) describes medical history; past or

       present symptoms, pain or sensations; their inception; or their general cause.”

       Evid. R. 803(4).


[18]   The Rule 803(4) exception “is grounded in a belief that the declarant’s self-

       interest in obtaining proper medical treatment makes such a statement reliable

       enough for admission at trial.” VanPatten, 986 N.E.2d at 260. In other words,

       the Rule 803(4) exception for hearsay “reflects the idea that people are unlikely

       to lie to their doctors because doing so might jeopardize their opportunity to be

       made well.” Id. In order for a statement to be admissible under Rule 803(4),

       courts must engage in a two-step analysis. “First, ‘is the declarant motivated to

       provide truthful information in order to promote diagnosis and treatment,’ and

       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 11 of 15
       second, ‘is the content of the statement such that an expert in the field would

       reasonably rely on it in rendering diagnosis or treatment.’” Id. (quoting McClain

       v. State, 675 N.E.2d 329, 331 (Ind. 1996)).


[19]   As to the first prong, Penninger argues that “there was no testimony offered by

       [Nurse] Cook that she checked to ensure that N.G.’s disclosures were motivated

       to provide truthful information for diagnosis or treatment. No evidence was

       presented to show that [Nurse] Cook reviewed with N.G. the importance of

       being truthful in her examination.” (Appellant’s Br. p. 11). During the trial,

       Penninger objected to Nurse Cook’s testimony only to the extent of preventing

       her from revealing N.G.’s identification of Penninger as the perpetrator of the

       molestation. In fact, Penninger explicitly limited his objection to the revelation

       of his name, stating that he was not otherwise objecting “to the context of

       things” and that Nurse Cook could “certainly” testify as to “the specifics of

       what [N.G.] described” under the hearsay exception. (Tr. pp. 328, 341).

       Because, as the State points out, Penninger essentially conceded to “the

       adequacy of the foundation establishing that N.G. was motivated to provide

       truthful information to Nurse Cook” by limiting his objection to N.G.’s

       identification, we find that Penninger has waived this argument for appeal.

       (State’s Br. pp. 14-15). See, e.g., Jackson v. State, 712 N.E.2d 986, 988 (Ind. 1999)

       (stating that the defendant was “limited on appeal to the grounds advanced at

       the trial court and [could not] raise new grounds for the first time on appeal”).


[20]   With respect to the second prong of the analysis, our courts have previously

       determined that “[s]tatements made by victims of sexual assault or molestation

       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 12 of 15
       about the nature of the assault or abuse—even those identifying the perpetrator—

       generally satisfy the second prong of the analysis because they assist medical

       providers in recommending potential treatment for sexually transmitted disease,

       pregnancy testing, psychological counseling, and discharge instructions.”

       VanPatten, 986 N.E.2d at 260 (emphasis added). Here, however, Penninger

       contends that “there is direct testimony that the expert in the field did not

       reasonably rely on the [identification of Penninger] in rendering a diagnosis or

       treatment of N.G.” (Appellant’s Br. p. 11). More specifically, Penninger

       asserts that “[Nurse] Cook specifically testified that she could not think of any

       medical reason why she would need the name of [Penninger].” (Appellant’s Br.

       p. 10). Penninger further argues that the identification of the perpetrator was

       not necessary for a diagnosis or treatment because Nurse Cook “testified that

       there were no concerns for sexually transmitted diseases with N.G., and that no

       follow up was done with respect to counseling or a safety plan.” (Appellant’s

       Br. p. 10). We disagree.


[21]   Although Penninger has cherry-picked and mischaracterized excerpts from

       Nurse Cook’s testimony, a review of the testimony as a whole establishes that

       she relied on N.G.’s identification of Penninger as the perpetrator as part of her

       treatment plan for N.G. Nurse Cook testified that it is her regular practice to

       obtain the name of the alleged perpetrator as “part of the safety plan for the

       child” because she “needed to identify how . . . this was happening to her,

       where that source was coming from.” (Tr. pp. 335, 339). Nurse Cook “would

       certainly want to be sure that the child is . . . going home in a safe environment


       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 13 of 15
       and not going home to somebody who could potentially be causing harm to the

       child.” (Tr. pp. 337); see, e.g., Perry v. State, 956 N.E.2d 41, 49 (Ind. Ct. App.

       2011) (quoting Nash v. State, 754 N.E.2d 1021, 1024-25 (Ind. Ct. App. 2001)

       (“The physician generally must know who the abuser was in order to render

       proper treatment because the physician’s treatment will necessarily differ when

       the abuser is a member of the victim’s family or household.”)). In this case,

       Nurse Cook recommended that N.G. “follow up [with her physician] for any

       new signs of infection,” and she also recommended counseling. (Tr. p. 338). In

       response to Penninger’s questions, Nurse Cook stated that it would not be

       essential to have a perpetrator’s identification “[i]n reviewing the body parts”

       with the victim and that there is not a “medical only” reason for identifying a

       perpetrator. (Tr. pp. 335-36). Nevertheless, it is not the role of this court to

       reweigh evidence, and Nurse Cook testified that the perpetrator’s identification

       is relevant “as part of the holistic care, so that would . . . be part of the nursing

       plan, which would . . . fall under the definition of medical.” (Tr. p. 335).

       Accordingly, we cannot say that the trial court abused its discretion by

       admitting Nurse Cook’s testimony pursuant to Evidence Rule 803(4).


                                               CONCLUSION

[22]   Based on the foregoing, we conclude that the State presented sufficient evidence

       to support Penninger’s conviction for Class A felony child molesting. We

       further conclude that the trial court acted within its discretion in admitting the

       testimony of Nurse Cook under Indiana Evidence Rule 803(4).


[23]   Affirmed.
       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 14 of 15
[24]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A04-1509-CR-1545 | August 11, 2016   Page 15 of 15
