MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Oct 11 2019, 10:12 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
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert T. Davis,                                         October 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-463
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D03-1711-FA-3



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-463 | October 11, 2019               Page 1 of 4
[1]   Robert T. Davis appeals his conviction of Class A felony child molesting. 1

      Davis argues the testimony presented was insufficient to find him guilty beyond

      a reasonable doubt. We affirm.



                                Facts and Procedural History
[2]   In June 2012, ten-year-old J.G. and her family were staying with J.G.’s

      grandmother as they waited for their home to be finished. Davis, who is J.G.’s

      uncle, also lived in the home. While staying there, J.G. and her older brother

      slept on the living room floor. Davis slept on the couch in the living room.

      One night, J.G. woke up to Davis digitally penetrating her vagina. When J.G.

      woke up, Davis told her not to tell anyone, and he continued to molest her.

      J.G. fled to the bathroom and began to cry. J.G.’s grandmother found J.G’s

      nightgown in the trash the next day, but J.G. would not tell her why it was in

      the trash. The J.G. and her family soon moved into their own home. Since

      then, J.G. has stayed away from Davis and her grandmother’s home.


[3]   In 2016, J.G. told her cousin about the incident. The cousin encouraged J.G.

      to tell her mother. Eventually, J.G. told her mother, who reported the incident

      to the police. On November 21, 2017, the State charged Davis with Class A

      felony child molesting. A jury found him guilty. The court sentenced Davis to




      1
          Ind. Code § 35-42-4-3(a)(1) (2007).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-463 | October 11, 2019   Page 2 of 4
       forty years, with thirty years to be served in prison and ten years suspended to

       probation.



                                  Discussion and Decision
[4]    Davis argues there was insufficient evidence to support his conviction. When

       considering the sufficiency of evidence, “a reviewing court does not reweigh the

       evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d

       124, 126 (Ind. 2005). We must affirm “if the probative evidence and reasonable

       inferences drawn from the evidence could have allowed a reasonable trier of

       fact to find the defendant guilty beyond a reasonable doubt.” Id. at 126

       (internal citation omitted).


 [5]   To prove Davis committed Class A felony child molesting, the State needed to

       prove: (1) Davis, (2) who was at least twenty-one years of age, (3) with J.G.,

       who was ten, (4) performed or submitted to sexual intercourse or deviate sexual

       conduct. See Ind. Code § 35-42-4-3(a)(1) (2007). Deviate sexual conduct was

       “an act involving a sex organ of one person and the mouth or anus of another

       person or the penetration of the sex organ or anus of a person by an object.”

       Ind. Code § 35-41-1-9 (1984).


 [6]   Davis contends J.G.’s testimony was not sufficient to prove penetration. When

       asked where Davis’ fingers were when he touched her, J.G. said “in the slit.”

       (Tr. Vol. II at 159.) Davis argues J.G.’s failure to use anatomical terminology

       to describe the incident left the jury with too vague a description for them to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-463 | October 11, 2019   Page 3 of 4
      determine that Davis committed deviate sexual conduct. However, Davis does

      not cite case law supporting his contention that correct anatomical terms must

      be used by the victim to prove penetration. As the Indiana Supreme Court

      explained:


              [A] detailed anatomical description of penetration is unnecessary
              and undesirable for two reasons. First, many people are not able
              to articulate the precise anatomical features that were or were not
              penetrated. Second, to require such detailed descriptions would
              subject victims to unwarranted questioning and cross-
              examination regarding the details and extent of penetration.


      Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996). J.G.’s testimony was

      sufficient to allow the jury to draw an inference as to whether penetration

      occurred. See, e.g., D’Paffo v. State, 749 N.E.2d 1235, 1239 (Ind. Ct. App. 2001)

      (minor victim’s testimony as to defendant sexually assaulting her with fingers

      was sufficient to support child molesting conviction), summarily aff’d in relevant

      part 778 N.E.2d 798, 803 n.2 (Ind. 2002).



                                              Conclusion
[7]   J.G.’s testimony was sufficient to permit the jury to reasonably infer penetration

      occurred. The evidence therefore was sufficient to support Davis’s conviction

      of Class A felony child molesting. Accordingly, we affirm.


[8]   Affirmed.


      Najam, J., and Bailey, J., concur.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-463 | October 11, 2019   Page 4 of 4
