MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Mar 25 2020, 8:48 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kelly M. Starling                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Lauren A. Jacobsen
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.G.,                                                    March 25, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-JV-2138
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark A. Jones,
Appellee-Petitioner.                                     Judge
                                                         The Honorable Ryan K. Gardner,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D15-1904-JD-352



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020                      Page 1 of 13
                                          Case Summary
[1]   D.G. was adjudicated a delinquent child for committing an act that would

      constitute Level 3 felony Rape if committed by an adult.1 D.G. now appeals,

      challenging the admission of evidence and whether there is sufficient evidence

      to support a true finding.


[2]   We reverse.



                                Facts and Procedural History
[3]   In April 2019, the State filed a petition alleging D.G. committed a delinquent

      act that would constitute Rape, as a Level 3 felony, if committed by an adult.

      The petition was filed after M.J. recognized herself in a video depicting her

      sexual penetration by an unknown male (whom she believed to be D.G.). The

      State alleged that D.G. had the opportunity to commit the act in December

      2016. At that time, D.G. was fifteen years old. He attended a house party at

      the residence of M.J., who was also fifteen years old. About a year and a half

      later, an unknown person showed M.J. a five-second cellphone video that M.J.

      believed depicted D.G. sexually penetrating her. M.J. reported seeing the

      video, which led to the instant matter. Before the fact-finding hearing, D.G.

      sought to exclude testimony concerning the content of the video, which had not

      been located. Following a hearing on the issue of admissibility, the court




      1
          Ind. Code § 35-42-4-1(a)(2).


      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 2 of 13
      declined to exclude the evidence. The case proceeded to a fact-finding hearing

      at which the court admitted the challenged evidence over D.G.’s objection.


[4]   At the fact-finding hearing, there was testimony that M.J. and a female friend,

      D.P., were drinking alcohol at M.J.’s house while her parents were at work.

      Two boys came over—D.G. and his friend, B.W. The group hung out together

      in a downstairs room, where D.G. and M.J. drank alcohol and smoked weed.

      M.J. became intoxicated to the point that she could not walk. D.P. asked D.G.

      and B.W. to carry M.J. to her upstairs bedroom. As they did so, D.P. stayed

      downstairs, cleaning up before M.J.’s parents came home. Once M.J. was

      upstairs, M.J. was sitting on her bed, leaning over and attempting to vomit.

      B.W. thought M.J. might need medical attention. He went to speak with D.P.

      about his concerns, leaving D.G. alone with M.J. When B.W. left the room,

      D.G. was beside M.J., holding her hair as she attempted to vomit.


[5]   D.P. did not recall a conversation with B.W. She recalled being downstairs for

      “ten to fifteen minutes before [she] got back up there” to M.J.’s room. Tr. Vol.

      II at 55. B.W. testified that he spoke to D.P. for “[n]ot even five minutes.” Id.

      at 68. He testified that he spoke to D.P. in the kitchen, which was “three or

      four steps outside of [M.J.’s] room.” Id. at 67. He testified that the door to

      M.J.’s room was open, and the only sound coming from M.J.’s room was “her

      puking and trying to puke.” Id. at 70. B.W. testified that, when he returned to

      M.J.’s bedroom, he saw D.G. “still sitting there holding her hair.” Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 3 of 13
[6]   After B.W. spoke with D.P., B.W. and D.G. left. D.P. testified that she went to

      M.J.’s bedroom, where M.J. was on the floor with her eyes closed. D.P. tried

      but could not wake M.J. D.P. noticed that M.J.’s pants were unzipped. D.P.

      stayed with M.J., concerned M.J. might choke on vomit. After M.J.’s mother

      came home, D.P. left. M.J.’s mother noticed that one of the buttons on M.J.’s

      shorts was unbuttoned. As to M.J., she recalled being brought upstairs. She

      recalled waking up with her pants unzipped and “puke everywhere.” Id. at 37.


[7]   M.J. later heard that D.G. “was telling people that [they] had sex.” Id. at 39. In

      February 2017, M.J. confronted D.G. through a social-media program:2


               [M.J.:]           why you tellin people you fucked me
                                 ?


               [D.G.:]           Whattttt [a series of emoticons]


               [M.J.:]           don’t fucking lie to me about it. why is everyone
                                 telling me that they’re hearing i you fucked me.


               [D.G.:]           U don’t remember shit bout that night do u
                                 [emoticon] u don’t need to drink anymore Stg
                                 I never lied [emoticon]


               [M.J.:]           so you raped me




      2
        The evidence of their exchange consists of a series of screenshots. Unless otherwise noted, we transcribed
      the pertinent image content verbatim. See McGuire v. State, 132 N.E.3d 438, 442 at n.3 (Ind. Ct. App. 2019)
      (transcribing the content of screenshots “without denoting deviation from Modern English”), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020                    Page 4 of 13
        [D.G.:]          Hell no wtf
                         U was grabbin on my dick and all kinds of shit
                         That night


        [M.J.:]          even if I remember that you decided to rape me
                         is this some kind of joke [D.G.] ?
                         i was passed out


        [D.G.:]          No I didn’t u was awake u got me fuck up then
                         U passed out then me and [B.W.] took u up to ur
                         room


        [M.J.:]          and you stuck your fucking dick in me ??


        [D.G.:]          Bc if not u was gonna eat in trouble
                         Get*
                         Then me and [B.W.] and [another person] picked
                         up the house so I didn’t get in so much trouble we
                         tried to help u as much as we cook


        [M.J.:]          that doesn’t have anything to do with you fucking
                         me


        [D.G.:]          And that mean [D.P.] took them back out if thy still
                         found them and u wanted me to u was with it I
                         wasn’t raping you tf
                         U was grabbing on my dick all on me


        [M.J.:]          that doesn’t mean YOU FUCK ME [D.G.]


        [D.G.:]          We was both drunk and it happen sorry Ig but I
                         didn’t rape u don’t say that [emoticon] that’s fuck
                         up if u say that
                         I really didn’t
Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 5 of 13
               [M.J.:]          no no you weren’t even drunk
                                just stop texting me please


               [D.G.:]          Whatttttttttttt [emoticon]
                                Ight
                                Sorry [emoticon]


       Ex. Vol. I at 4-9.


[8]    M.J. testified about events that led to the instant proceedings. In September

       2018, there was a fire drill and M.J. was outside of school. An unknown person

       then showed M.J. a five-second video on a cellphone. M.J. recognized herself

       in the video: “[I]t was my room, my hair and my body.” Tr. Vol. II at 45. M.J.

       testified that the video showed her pants down and a penis penetrating her

       vagina. M.J. could not identify the male in the video. She believed it was D.G.


[9]    M.J. spoke to school personnel and an investigation ensued. The investigation

       included reviewing surveillance footage of the fire drill. The footage was not

       clear enough to corroborate the showing of a cellphone video—or generate

       leads to identify who possessed the video. The parties stipulated to evidence

       that M.J. eventually provided the names of three people who were with her

       outside. M.J. did so only after the instant proceedings began. The stipulated

       evidence is that all three were contacted. One did not recall being shown a

       video. The other two recalled hearing about a video, but only from M.J.


[10]   In a police interview, D.G. admitted to telling M.J. they had sex. He denied

       that any sexual contact occurred, claiming he told M.J. so he would seem cool.


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 6 of 13
[11]   The trial court ultimately entered a true finding. The court placed D.G. on

       probation and entered a no-contact order. The court also ordered D.G. to

       participate in psycho-education services and follow all recommendations.


[12]   D.G. now appeals.



                                  Discussion and Decision
[13]   A true finding “must be based upon proof beyond a reasonable doubt.” I.C. §

       31-37-14-1. When reviewing a challenge to the sufficiency of evidence

       supporting a true finding, “we do not reweigh the evidence or judge witness

       credibility.” B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). Rather, “[w]e

       consider only the evidence favorable to the judgment and the reasonable

       inferences supporting it.” Id. We will affirm so long as there is “substantial

       evidence of probative value . . . from which a reasonable fact finder could

       conclude beyond a reasonable doubt” that the juvenile engaged in the unlawful

       conduct. A.B. v. State, 885 N.E.2d 1223, 1226 (Ind. 2008) (quoting Al-Saud v.

       State, 658 N.E.2d 907, 909 (Ind. 1995)). However, where the evidence is such

       that no reasonable person could be convinced of guilt beyond a reasonable

       doubt, the judgment cannot stand. Easton v. State, 228 N.E.2d 6, 11 (Ind. 1967).


[14]   The State alleged in its petition that, in December 2016, D.G. “did knowingly

       or intentionally have sexual intercourse with another person, [M.J.], when

       [M.J.] was unaware that sexual intercourse was occurring.” App. Vol. II at 17.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 7 of 13
       The alleged conduct is proscribed by Indiana Code Section 35-42-4-1(a)(2).3

       The term “sexual intercourse” means “an act that includes any penetration of

       the female sex organ by the male sex organ.” I.C. § 35-31.5-2-302. The term

       “unaware” means “not aware: lacking knowledge or acquaintance;

       Unconscious.” Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct. App. 2002)

       (quoting Becker v. State, 703 N.E.2d 696, 698 (Ind. Ct. App. 1998)), trans. denied.


[15]   The State’s theory was that the actor in the video was D.G. and he penetrated

       M.J. at the house party.4 There is evidence of D.G. and M.J. being alone for a

       few minutes. That is, there is evidence that, after D.G. and B.W. carried M.J.

       to her room, M.J. was in a seated position and was vomiting. B.W. testified

       that, when he left the bedroom, D.G. was holding M.J.’s hair as she vomited.

       D.P. did not recall having a conversation with B.W.—only that about “ten to

       fifteen minutes” elapsed before she went up to M.J.’s room. Tr. Vol. II at 55.

       B.W. recalled speaking with D.P. for “[n]ot even five minutes, less than that.”




       3
         The delinquency petition contained factual allegations under subsection (a)(2)—which proscribes engaging
       in sexual intercourse with a person unaware of the intercourse—but the petition cites only subsection (a)(3),
       which proscribes engaging in sexual intercourse with a person who is “so mentally disabled or deficient that
       consent . . . cannot be given.” I.C. § 35-42-4-1(a)(3). The dispositional decree reflects a true finding under
       subsection (a)(3), not (a)(2). However, at a prior hearing, the court recited the elements of both subsections
       and then concluded that “the State has met its burden beyond a reasonable doubt and or a true finding.” Tr.
       Vol. 2 at 93. In its brief, the State now cites only subsection (a)(2). As to D.G., he cites only subsection
       (a)(3) but recites only the elements of subsection (a)(2). See Br. of Appellant at 19. Ultimately, despite these
       inconsistent references, D.G. and the State appear to agree that the true finding arose under subsection (a)(2).
       4
         On appeal, the State argues that “M.J.’s testimony about the video was not being used to prove its content,
       and instead was only testimony of her own opinion and mindset . . . .” Br. of Appellee at 9 n.1. However, in
       its closing argument, the State asserted that M.J. “was clearly upset because she saw this video and in her
       words of [D.G.] penetrating her. He had is [sic] penis in her vagina and she was passed out.” Tr. Vol. 2 at
       87-88. Thus, the State invited use of M.J.’s testimony to establish elements of the offense.

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020                     Page 8 of 13
       Id. at 68. Based on D.P.’s and B.W.’s testimony, a fact-finder could reasonably

       conclude that D.G. and B.W. were with M.J. for about five to ten minutes—

       during which time they carried M.J. upstairs and then were in her bedroom

       while she was seated and vomiting. Moreover, based on D.P.’s and B.W.’s

       testimony, a reasonable fact-finder could also conclude that D.G. was alone

       with M.J. for approximately five minutes—during B.W.’s conversation with

       D.P. B.W. testified that, while he was four steps away speaking to D.P., the

       only sound he heard coming from M.J.’s bedroom was “her puking and trying

       to puke.” Id. at 70. B.W. testified that, when he returned to M.J.’s bedroom to

       retrieve D.G., he saw D.G. “still sitting there holding her hair.” Id.


[16]   The State asserts that “[t]he most compelling evidence before the . . . court is

       D.G.’s own texted statement that he and M.J. had sex that night, although he

       claimed it was not rape.” Br. of Appellee at 7. To the extent that D.G.’s

       statement, “it happen,” can be characterized as an unequivocal admission of

       guilt, the State is responsible for laying a sufficient foundation to support the

       admission of that statement under our well-settled corpus delicti rule. The

       Indiana Supreme Court explained the pertinent foundation requirement in

       Shinnock, a criminal case:


               In Indiana, a person may not be convicted of a crime based solely
               on a nonjudicial confession of guilt. Green v. State, 159 Ind. App.
               68, 304 N.E.2d 845, 848 (1973). Rather, independent proof of
               the corpus delicti is required before the defendant may be
               convicted upon a nonjudicial confession. Id. Proof of the corpus
               delicti means “proof that the specific crime charged has actually
               been committed by someone.” Walker v. State, 249 Ind. 551, 233

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 9 of 13
               N.E.2d 483, 488 (1968). Thus, admission of a confession
               requires some independent evidence of commission of the crime
               charged. Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999).
               The independent evidence need not prove that a crime was
               committed beyond a reasonable doubt, but merely provide an
               inference that the crime charged was committed. Malinski v.
               State, 794 N.E.2d 1071, 1086 (Ind. 2003). This inference may be
               created by circumstantial evidence. Id.


       Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017). The purpose of this rule is to

       “prevent the admission of a confession to a crime which never occurred.” Id.


[17]   For the moment, we will put aside M.J.’s testimony about the content of the

       video. Looking to the remaining evidence, there is no indication that M.J. was

       concerned about what happened at the party—other than getting in trouble—

       until D.G. boasted about having sex. We cannot say that an equivocal

       admission to a sexual encounter—one that D.G. first represented was

       consensual and then recanted altogether in a police interview—is admissible

       under Shinnock. Indeed, the potential corroborating evidence is essentially that

       D.G. was alone with M.J., who was observed to have slightly disheveled

       clothing after having been recently carried up a flight of stairs. We emphasize

       that the State did not elicit testimony about the condition of M.J.’s clothing

       when she was carried upstairs or when B.W. left the room. All in all, the record

       is devoid of corroborating evidence that a rape occurred at the party.


[18]   Turning to events in September 2018—well over a year after the party at issue—

       M.J. viewed a video clip on a cellphone during a fire drill. From the evidence

       presented, it seems the State made little effort to locate that video. Indeed, it

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 10 of 13
       appears that the investigation into locating the video consisted primarily of

       viewing surveillance footage of the fire drill. M.J. communicated her belief that

       the unidentifiable male in the video was D.G. Yet, there is no indication that

       the State pursued a warrant to search D.G.’s cellphone or electronic data.

       Moreover, although there is evidence that those nearby M.J. were questioned

       about a video, there is no indication that D.G.’s social circle was questioned.


[19]   Critically, Indiana Evidence Rule 1002—referred to as the “best evidence”

       rule—provides as follows: “An original writing, recording, or photograph is

       required in order to prove its content unless these rules or a statute provides

       otherwise.” There are limited exceptions. Indeed, Rule 1003 provides for the

       admission of a duplicate. Moreover, Rule 1004 provides as follows:


               An original is not required and other evidence of the content of a
               writing, recording, or photograph is admissible if:


               (a) all originals are lost or destroyed, and not by the proponent
               acting in bad faith;


               (b) an original cannot be obtained by any available judicial
               process;


               (c) the party against whom the original would be offered had
               control of the original; was at that time put on notice, by
               pleadings or otherwise, that the original would be a subject of
               proof at the trial or hearing; and fails to produce it at the trial or
               hearing; or


               (d) the writing, recording, or photograph is not closely related to
               a controlling issue.
       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 11 of 13
[20]   To support admission under subsection (a), “[t]he proponent of the evidence

       must demonstrate that the original was lost or destroyed by showing that a

       diligent but unsuccessful search has been made in the place or places where the

       original was most likely to be found.” In re J.V., 875 N.E.2d 395, 401 (Ind. Ct.

       App. 2007) (citing Cua v. Ramos, 433 N.E.2d 745, 753 (Ind. 1982)), trans. denied.


[21]   From the evidence, we cannot say that the State laid a sufficient foundation to

       admit M.J.’s testimony under an exception to the “best evidence” rule. Thus,

       to the extent it can be said that M.J.’s testimony about an unidentifiable person

       in a five-second video is relevant and corroborative of any admission of guilt,

       the testimony was inadmissible. The court should have excluded the testimony.

       Furthermore, as D.G suggested when seeking to exclude that testimony, the

       State otherwise lacks independent evidence that a crime occurred. See App.

       Vol. II at 96. It follows, then, that any admission of guilt was also inadmissible.

       See Shinnock, 76 N.E.3d at 843 (discussing the corpus delicti rule).


[22]   Reversal is appropriate where evidentiary error affects a party’s substantial

       rights. See Evid. R. 103(a); Ind. Appellate Rule 66(A). However, retrial is

       appropriate only where “considering all the trial evidence, including that

       erroneously admitted, sufficient evidence exists to support [the judgment].”

       Bowman v. State, 577 N.E.2d 569, 571 (Ind. 1991) (applying principles of double

       jeopardy); Carr v. State, 934 N.E.2d 1096, 1109 (Ind. 2010) (“A reversal for

       insufficient evidence bars retrial under the Double Jeopardy Clause, but an

       analysis for such sufficiency includes consideration of the erroneously admitted

       evidence.” (footnote omitted) (citing Lockhart v. Nelson, 488 U.S. 33, 40 (1988))).

       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 12 of 13
[23]   Here, a sufficiency inquiry turns on proof that, in the five or so minutes that

       B.W. spoke with D.P., M.J. lacked awareness while D.G. pulled down M.J.’s

       shorts; engaged in sexual intercourse; pulled up her shorts, leaving the shorts

       unzipped and partially unbuttoned; and returned M.J. to a seated position, all

       without drawing the attention of those in a nearby room. In view of the

       evidence presented, we conclude that the State failed to prove that which is

       necessary to support a true finding.


[24]   Reversed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2138 | March 25, 2020   Page 13 of 13
