MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Nov 10 2015, 10:06 am
this Memorandum Decision shall not be
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
Bruce W. Graham                                         Gregory F. Zoeller
Graham Law Firm, P.C.                                   Attorney General of Indiana
Lafayette, Indiana
                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Payton Jarrard,                                         November 10, 2015
Appellant-Petitioner,                                   Court of Appeals Cause No.
                                                        79A02-1503-CR-159
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
State of Indiana,                                       The Honorable Randy J. Williams,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        79D01-1409-F1-1



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 79A02-1503-CR-159 | November 10, 2015   Page 1 of 8
                                             Case Summary
[1]   Payton Jarrard appeals his conviction for Level 1 felony child molesting. We

      affirm.


                                                    Issues
[2]   Jarrard raises three issues, which we reorder and restate as:


                      I.       whether the trial court properly sustained an
                               objection on hearsay grounds;

                      II.      whether the jury was properly instructed; and

                      III.     whether there is sufficient evidence to support
                               his conviction.

                                                    Facts
[3]   In August 2014, Jarrard was in a relationship with eleven-year-old T.C.’s

      mother. One night, T.C. was home with her two older brothers while her

      mother was gone. Although Jarrard lived elsewhere, he was at the home with

      T.C. and her brothers. After T.C. went to bed, she was awoken by Jarrard

      shaking her bed as he touched her “bottom area” on the front, in the area she

      used to urinate. Tr. p. 128. T.C. described feeling Jarrard touch inside her and

      it hurting. T.C. immediately reported the incident to her brother, who called

      their mother. Their mother told the children to go to a friend’s house, and the

      incident was reported to the police.


[4]   On September 3, 2014, the State charged Jarrard with Level 1 felony child

      molesting and alleged that he was an habitual offender. A jury found Jarrard


      Court of Appeals of Indiana | Memorandum Decision 79A02-1503-CR-159 | November 10, 2015   Page 2 of 8
      guilty of the child molesting allegation, and he pled guilty to the habitual

      offender allegation. Jarrard now appeals.


                                                  Analysis
                                                  I. Hearsay

[5]   Jarrard argues that the trial court improperly sustained the State’s objection to

      testimony by Anna Gordon, the public health nurse who participated in T.C.’s

      medical examination after the incident was reported. The trial court has broad

      discretion to rule on the admissibility of evidence, and its rulings are reviewed

      for abuse of that discretion. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).

      We reverse only when admission is clearly against the logic and effect of the

      facts and circumstances and the error affects a party’s substantial rights. Id.


[6]   At trial, Gordon explained that a history of the incident was obtained from

      T.C.’s mother. Gordon’s report indicated that T.C. told her mother that Jarrard

      had touched her but did not put anything inside of her. The State objected to

      this line of questioning, arguing that the content of the report was hearsay.

      Jarrard’s attorney responded by arguing that he was trying to impeach T.C.’s

      earlier testimony that Jarrard had put his finger inside of her. The trial court

      sustained the State’s objection.


[7]   Indiana Evidence “Rule 613 allows the use of a prior inconsistent statement to

      impeach a witness, and when so used, the statement is not hearsay.” Jackson v.

      State, 925 N.E.2d 369, 375 (Ind. 2010). “This rule permits prior inconsistent

      statements by the person being impeached.” Id. Here, however, Gordon was

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      not the declarant of the statement Jarrard sought to introduce, nor was she the

      person Jarrard sought to impeach. Instead, the statement was attributable to

      T.C. through her mother, and Jarrard did not question either T.C. or her

      mother about the purported statement. The trial court properly excluded this

      testimony from Gordon.1


                                             II. Jury Instruction

[8]   Jury instructions inform the jury of the law applicable to the facts without

      misleading the jury and enable the jury to comprehend the case clearly to arrive

      at a just, fair, and correct verdict. Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015),

      cert. pending. We review jury instructions for an abuse of discretion, which

      occurs when the instruction is erroneous and the instructions taken as a whole

      misstate the law or otherwise mislead the jury. Id. at 484-85. When evaluating

      jury instructions, we look to whether the tendered instructions correctly state

      the law, whether there is evidence in the record to support giving the

      instruction, and whether the substance of the proffered instruction is covered by

      other instructions. Id. at 485.




      1
        On appeal, Jarrard argues that the statement in Gordon’s report was admissible because Gordon was an
      expert witness, because it was a statement made for medical diagnosis and treatment, and because it
      impacted his Sixth Amendment right to cross-examination. However, it is well settled that a defendant may
      not argue one ground for objection at trial and then raise new grounds on appeal. Halliburton v. State, 1
      N.E.3d 670, 683 (Ind. 2013). Because Jarrard did not raise these claims to the trial court, he has waived
      these claims of error for appellate review. See id.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1503-CR-159 | November 10, 2015        Page 4 of 8
[9]    At trial, Jarrard argued that the State’s tendered instruction regarding

       penetration was confusing. The trial court sustained Jarrard’s objection in part

       and deleted the third paragraph of the tendered instruction. The trial court

       instructed the jury as follows:


               Proof of the slightest penetration is sufficient to sustain a
               conviction for the crimes charged. Penetration does not require
               the vagina to be penetrated, only that the female sex organ
               including the external genitalia be penetrated.


               The female external genitalia is defined as “the vulva in the
               female.” The vulva is defined as the “external genitalia of the
               female, comprised of the opening of the urethra and of the
               vagina.”


       App. p. 92.


[10]   On appeal, Jarrard suggests that the instruction improperly emphasized one

       particular evidentiary fact and that it improperly gave the jury a lesson in

       anatomy. However, because these are not the same arguments Jarrard made at

       trial, they are waived. See Ind. Trial Rule 51(C) (“No party may claim as error

       the giving of an instruction unless he objects thereto before the jury retires to

       consider its verdict, stating distinctly the matter to which he objects and the

       grounds of his objection.”); Helsley v. State, 809 N.E.2d 292, 302 (Ind. 2004)

       (“The defendant may not appeal the giving of an instruction on grounds not

       distinctly presented at trial.”). Regardless, we do not agree that this instruction

       improperly emphasized one particular evidentiary fact or improperly defined

       certain terms because it informed the jury of the law applicable to the facts.

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       Jarrard has not established that the manner in which the jury was instructed

       was reversible error.


                                     III. Sufficiency of the Evidence

[11]   Jarrard argues there is insufficient evidence to support his Level 1 felony child

       molesting conviction. When reviewing a challenge to the sufficiency of the

       evidence, we neither reweigh the evidence nor assess the credibility of

       witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We view the

       evidence—even if conflicting—and all reasonable inferences drawn from it in a

       light most favorable to the conviction and affirm if there is substantial evidence

       of probative value supporting each element of the crime from which a

       reasonable trier of fact could have found the defendant guilty beyond a

       reasonable doubt. Id.


[12]   A person, at least twenty-one years of age, who, with a child under fourteen

       years of age, knowingly or intentionally performs or submits to sexual

       intercourse or other sexual conduct commits child molesting, a Level 1 felony

       child molesting. Ind. Code § 35-42-4-3(a)(1). Other sexual conduct means in

       part an act involving “the penetration of the sex organ or anus of a person by an

       object.” I.C. § 35-31.5-2-221.5. Here, the State alleged that Jarrard used his

       hand to engage in other sexual conduct with T.C.


[13]   Jarrad contends T.C.’s testimony did not establish that he used his finger to

       penetrate T.C.’s sex organ. He argues, “While it is possible that Jarrard




       Court of Appeals of Indiana | Memorandum Decision 79A02-1503-CR-159 | November 10, 2015   Page 6 of 8
       penetrated the sex organ, it is also just as likely, that Jarrard penetrated the

       urethral opening of T.C.” Appellant’s Br. p. 11.


[14]   T.C. testified that she woke up to Jarrard touching her in “bottom area.” Tr. p.

       128. She elaborated that he was touching the “front,” the area for using “the

       restroom.” Id. She further clarified that it was the area from where she

       urinates. T.C. stated that she could feel Jarrard touching her on the inside and

       that it hurt.


[15]   In Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996),our supreme court

       observed:

               We believe 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.


[16]   Although T.C.’s testimony did not include a precise anatomical description, it

       was sufficient to allow the jury to infer that Jarrard penetrated her vagina with

       his finger. To the extent he argues otherwise, it is a request for us to reweigh

       the evidence, which we cannot do. See Bailey v. State, 979 N.E.2d at 135. There

       is sufficient evidence to support Jarrard’s Level 1 felony child molesting

       conviction.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1503-CR-159 | November 10, 2015   Page 7 of 8
                                                Conclusion
[17]   Jarrard has not established that the trial court abused its discretion in sustaining

       the State’s objection to Gordon’s testimony or in instructing the jury. Further,

       there is sufficient evidence to sustain the child molesting conviction. We

       affirm.


[18]   Affirmed.


       Kirsch, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1503-CR-159 | November 10, 2015   Page 8 of 8
