MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                        FILED
regarded as precedent or cited before any                                          Jan 17 2020, 10:19 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
Stephenie K. Gookins                                     Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC                                Attorney General of Indiana
Carmel, Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Harry H. Rogers,                                         January 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1509
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Michael A. Casati,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D01-1802-FA-1470



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020                  Page 1 of 13
                                          Case Summary
[1]   Harry H. Rogers was charged with and convicted of Count I–Class A felony

      child molestation (“Count I”), Count II–Class A felony child molestation

      (“Count II”), Count III–Class C felony child molestation (“Count III”), and

      Count IV–Class D felony performing sexual conduct in the presence of a minor

      (“Count IV”) for acts involving his granddaughter. He was subsequently

      sentenced to an aggregate term of forty years and found to be a credit-restricted

      felon. On appeal, Rogers challenges the sufficiency of the evidence to sustain

      his convictions. Alternatively, he contends that the trial court erred by

      sentencing him as a credit-restricted felon. Because we conclude that the

      evidence is sufficient to sustain Rogers’s convictions and that Rogers was

      properly found to be a credit-restricted felon, we affirm.



                            Facts and Procedural History
[2]   Kelly Barresi is the mother of K.Y., who was born February 6, 2002.

      Christopher Yazel is the adoptive father of K.Y. Barresi and Yazel are also the

      parents of C.Y., who was born in 2005. Rogers is Yazel’s step-father.


[3]   In or about September of 2005, Barressi, Yazel, K.Y. and C.Y. moved to

      Indianapolis from Michigan City. Yazel’s mother Diane and Rogers eventually

      followed the family to the Indianapolis area. Diane and Rogers served as a

      support system for Barressi and Yazel and frequently babysat for K.Y. and C.Y.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020   Page 2 of 13
      Diane and Rogers typically babysat for the children at either their residence in

      Carmel or Yazel’s apartment.


[4]   On one occasion when Rogers was babysitting for then-six-year-old K.Y. at his

      residence in Carmel, Rogers inappropriately touched K.Y. by rubbing “[i]n

      between” her labia for approximately ten to fifteen minutes. Tr. Vol. II p. 246.

      Rogers instructed K.Y. not to tell anyone. K.Y. indicated that similar acts

      occurred “more than once” at Rogers’s home “[w]henever [Rogers] got the

      chance to babysit [K.Y. and C.Y.] alone.” Tr. Vol. II p. 247. Similar acts also

      occurred when Rogers babysat for K.Y. at Yazel’s apartment when K.Y. was

      seven or eight years old.


[5]   On another occasion when K.Y. was six or seven years old, K.Y. went with

      Rogers from his residence in Carmel to a nearby Dairy Queen. While in the

      Dairy Queen parking lot, Rogers started tickling and rubbing K.Y.’s vagina

      with his hand over her clothes. Rogers again instructed K.Y. “[d]on’t tell.” Tr.

      Vol. III p. 3.


[6]   On yet another occasion when Rogers was babysitting for K.Y., Rogers took

      K.Y. into an upstairs bedroom of Yazel’s apartment and “touched [her] vagina

      with his penis.” Tr. Vol. III p. 5. Rogers took K.Y.’s “pants off and pulled

      [her] under down and started rubbing [her] with his hand again and put his

      penis … [i]n between” her labia. Tr. Vol. III p. 5. Rogers’s conduct lasted for

      five or ten minutes and made K.Y. feel “[c]onfused and uncomfortable.” Tr.

      Vol. III p. 5. K.Y. was seven or eight years old during this occurrence.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020   Page 3 of 13
      Following one of the instances of touching in Yazel’s apartment, Rogers

      collected lotion from an upstairs bedroom and rubbed lotion on his penis while

      in K.Y.’s presence.


[7]   When K.Y. was about eight or nine years old, she began doing “everything in

      [her] power to avoid” Rogers. Tr. Vol. III p. 3. As she grew older, K.Y.

      developed physical and verbal “tics” and, when she was twelve years old, began

      engaging in self-harming behaviors. Tr. Vol. II p. 222. On February 12, 2018,

      K.Y. cut her wrists after an argument with Barresi. Barresi took K.Y. to the

      hospital where K.Y. first disclosed Rogers’s prior inappropriate actions. K.Y.

      was hesitant to disclose Rogers’s actions because she thought nothing could be

      done about it.1 She also “wasn’t sure if [she] would be believed” because

      Rogers “has been made out to seem like a person who loves his family and God

      and is hard working, and [K.Y.] didn’t know if they would believe a troubled

      teenager who had this happen so long ago.” Tr. Vol. III pp. 9, 10. Following

      disclosure, K.Y. has seemed happier, smiled more, been more social and

      affectionate, and has experienced an improved relationship with Yazel. K.Y.

      “seemed to just have this weight lifted off of her shoulders, that she had let go

      of this secret and was instantly different and better.” Tr. Vol. II p. 223.


[8]   On February 23, 2018, the State charged Rogers with Counts I through IV. The

      matter proceeded to a three-day jury trial. During trial, K.Y. detailed numerous




      1
       K.Y. falsely believed that nothing could be done after learning about statutes of limitation on “Law &
      Order: Special Victims Unit.” Tr. Vol. III p. 11.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020                Page 4 of 13
       instances of molestation by Rogers. On May 15, 2019, the jury found Rogers

       guilty as charged. The trial court subsequently sentenced Rogers to terms of

       forty years on each of Counts I and II, six years on Count III, and three years

       on Count IV, all of which were ordered to be served concurrently for an

       aggregate forty-year sentence. The trial court also found Rogers to be a credit-

       restricted felon.



                                  Discussion and Decision
[9]    On appeal, Rogers contends that the evidence is insufficient to sustain his

       convictions. Alternatively, he contends that the trial court erred in sentencing

       him as a credit-restricted felon.


                                I. Sufficiency of the Evidence
[10]   “Our standard of review for challenges to the sufficiency of the evidence is well-

       settled.” Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015).


               We do not reweigh evidence or reassess the credibility of
               witnesses when reviewing a conviction for the sufficiency of the
               evidence. We view all evidence and reasonable inferences drawn
               therefrom in a light most favorable to the conviction, and will
               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.


       Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (internal citation and quotation

       omitted). This is because the factfinder, and not the appellate court, “is obliged

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020   Page 5 of 13
       to determine not only whom to believe, but also what portions of conflicting

       testimony to believe, and is not required to believe a witness’s testimony[.]”

       Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (internal quotation and

       brackets omitted). Further, “the uncorroborated testimony of a child victim is

       sufficient to support a conviction for child molesting.” Stewart v. State, 768

       N.E.2d 433, 436 (Ind. 2002).


                                            A. Counts I & II
[11]   Rogers challenges his convictions under Counts I and II, arguing that the

       evidence is insufficient to prove that he committed two counts of Class A felony

       child molesting. In order to prove that Rogers committed these offenses, the

       State was required to prove that Rogers, on two separate occasions, being at

       least twenty-one years of age, performed or submitted to sexual intercourse or

       sexual deviate conduct with a child under fourteen years of age. Ind. Code §

       35-42-4-3(a).


[12]   The State alleged in Count I that between February 6, 2008 and May 31, 2012,

       “Rogers, a person of at least twenty-one (21) years of age, did perform deviate

       sexual conduct with K.Y., a child under the age of fourteen years.” Appellant’s

       App. Vol. II p. 19. The State alleged in Count II that between February 6, 2008

       and May 31, 2012, “Rogers, a person of at least twenty-one (21) years of age,

       did perform sexual intercourse or deviate sexual conduct with K.Y., a child

       under the age of fourteen years … such conduct involving the penis of [Rogers]

       and the vagina of K.Y.” Appellant’s App. Vol. II p. 19. Penetration “may be

       proven by evidence of any penetration of the female sex organ, including
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020   Page 6 of 13
       external genitalia such as the vulva or labia.” Adcock v. State, 22 N.E.3d 720,

       728 (Ind. Ct. App. 2014) (citing Short v. State, 564 N.E.2d 553, 559 (Ind. Ct.

       App. 1991)). Deviate sexual conduct includes the penetration of the sex organ

       with a finger. See Simmons v. State, 746 N.E.2d 81, 86 (Ind. Ct. App. 2001),

       trans. denied.


[13]   Rogers often babysat for K.Y. at his residence in Carmel. On one such

       occasion when K.Y. was six years old, Rogers, while alone in a room with

       K.Y., removed K.Y.’s jeans, “pulled [her] underwear down,” and “started

       touching” her vagina. Tr. Vol. II p. 245. While doing so, Rogers rubbed K.Y.

       “[i]n between” the labia for approximately ten to fifteen minutes. Tr. Vol. II p.

       246. Rogers told K.Y. “[s]omething along the lines of don’t tell anyone,”

       making her feel “[w]eird” and “[u]ncomfortable.” Tr. Vol. II p. 246. K.Y.

       indicated that similar acts occurred “more than once” at Rogers’s home

       “[w]henever [Rogers] got the chance to babysit [K.Y. and C.Y.] alone.” Tr.

       Vol. II p. 247.


[14]   K.Y. testified to another instance of molestation that occurred when she was

       seven or eight years old in Yazel’s two-story townhome apartment. On this

       occasion, Rogers and her grandmother were babysitting for her and C.Y. when

       Rogers took her upstairs into her father’s bedroom alone. Rogers “asked [C.Y.]

       if [her] jeans were uncomfortable,” removed her jeans and underwear, “laid

       [her] down on the bed,” and started licking her vagina. Tr. Vol. II p. 249.

       Rogers also rubbed C.Y.’s vagina “[i]n between” her labia with his hand. Tr.

       Vol. II p. 250. When C.Y. attempted to yell for her grandmother, Rogers “put

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020   Page 7 of 13
       his hand over [her] mouth.” Tr. Vol. II p. 250. This encounter lasted

       approximately five or ten minutes and made K.Y. feel “[w]eird and

       uncomfortable.” Tr. Vol. II p. 250. As with prior instances of molestation,

       Rogers again instructed K.Y. “[d]on’t tell anybody.” Tr. Vol. II p. 250.

       Specifically, he told her “this is what all grandfathers do and that he did it to all

       [her] cousins and that it was okay.” Tr. Vol. III p. 2.


[15]   K.Y. further testified that on another instance in Yazel’s apartment when she

       was seven or eight, Rogers “touched [her] vagina with his penis.” Tr. Vol. III

       p. 5. On this occasion, Rogers took K.Y.’s pants off and pulled her underwear

       down. He then “started rubbing [her] with his hand again and put his penis …

       [i]n between” her labia. Tr. Vol. III p. 5. Rogers’s conduct lasted for five or ten

       minutes and made K.Y. feel “[c]onfused and uncomfortable.” Tr. Vol. III p. 5.


[16]   It is uncontested that Rogers, who was born on December 19, 1955, was well

       over the age of twenty-one when he committed all of the above-described acts.

       K.Y. detailed multiple occurrences of molestation, some involving sexual

       deviate conduct and at least one involving sexual intercourse. K.Y.’s testimony

       is sufficient to prove that Rogers committed Class A felony child molesting as

       charged in Counts I and II.2




       2
         We note that in challenging the sufficiency of the evidence to sustain his conviction under Count II, Rogers
       argues that the State failed to prove proper venue. However, Rogers has waived his challenge relating to
       venue because he did not raise any objection or challenge to venue at trial. See Floyd v. State, 503 N.E.2d 390,
       393 (Ind. 1987) (“Many times this Court has held that a defendant waives error relating to venue when he
       fails to make an objection at the appropriate time in the trial court.”); see also Martin v. State, 247 Ind. 592, 594


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020                        Page 8 of 13
                                                  B. Count III
[17]   Rogers challenges his conviction under Count III, arguing that the evidence is

       insufficient to prove that he committed Class C felony child molesting. In order

       to prove that Rogers committed Class C felony child molesting, the State was

       required to prove that Rogers, with a child under fourteen years of age,

       performed or submitted to any fondling or touching of either himself or the

       child with the intent to arouse or to satisfy the sexual desires of either himself or

       the child. Ind. Code § 35-42-4-3(b).


[18]   The State alleged that between February 6, 2008 and May 31, 2012, Rogers

       performed “fondling or touching with K.Y., a child under the age of fourteen

       years … with the intent to arouse or satisfy the sexual desires of the child or

       defendant.” Appellant’s App. Vol. II pp. 19–20. K.Y. testified that when she

       was six or seven years old, she went with Rogers from his residence in Carmel

       to a nearby Dairy Queen. While in the Dairy Queen parking lot, Rogers started

       tickling and rubbing K.Y.’s vagina with his hand over her clothes. Rogers

       instructed K.Y. “[d]on’t tell.” Tr. Vol. III p. 3.


[19]   In challenging his conviction, Rogers argues that the evidence is insufficient to

       prove that he acted with the intent to arouse either his or K.Y.’s sexual desires.

       “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



       219 N.E.2d 902, 904 (1966) (“In the present case the question of venue was not raised in the trial court and
       therefore could not properly have been raised for the first time on appeal.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020                  Page 9 of 13
       usual sequence to which such conduct usually points.” Bass v. State, 947 N.E.2d

       456, 460 (Ind. Ct. App. 2011), trans. denied. Rogers’s conduct together with the

       natural and usual sequence to which such conduct usually points supports the

       inference that Rogers intended to arouse either his or K.Y.’s sexual desires

       when he tickled and rubbed K.Y.’s sex organ with his hand. The evidence is

       sufficient to sustain Rogers’s conviction for Class C felony child molesting.


                                                C. Count IV
[20]   Rogers also challenges the sufficiency of the evidence to prove that he

       committed Class D felony performing sexual conduct in the presence of a

       minor. In order to prove that Rogers committed this crime, the State was

       required to prove that Rogers, with a child under fourteen years of age, touched

       or fondled himself in the presence of the child with the intent to arouse or

       satisfy the sexual desires of either himself or the child. Ind. Code § 35-42-4-

       5(c)(3).


[21]   The State alleged that between February 6, 2008 and May 31, 2012, “Rogers,

       being at least eighteen years of age … did knowingly or intentionally fondle or

       touch himself in the presence of K.Y., a child under the age of fourteen, … with

       the intent to arouse or satisfy the sexual desires of [Rogers] or K.Y.”

       Appellant’s App. Vol. II p. 20. K.Y. testified that following one of the instances

       of molestation that occurred in Yazel’s apartment, Rogers went into the

       bathroom and collected lotion which he then rubbed on his penis in front of

       K.Y.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020   Page 10 of 13
[22]   It is uncontested that K.Y. was younger than fourteen and Rogers was well over

       eighteen years of age when he committed this act. Also, given that Rogers

       rubbed the lotion onto his penis immediately after he inappropriately touched

       K.Y., one can reasonably infer that he did so with the intent to arouse either his

       or K.Y.’s sexual desires. The evidence is sufficient to sustain Roger’s

       conviction for Class D felony performing sexual conduct in the presence of a

       minor.3 See Bass, 947 N.E.2d at 460.


                      II. Credit-Restricted Felon Classification
[23]   A defendant’s status as a credit-restricted felon is relevant to his assignment to a

       credit-time class and, in turn, affects his accrual of credit time toward his

       sentence. See Neal v. State, 65 N.E.3d 1139, 1141 (Ind. Ct. App. 2016). Indiana

       Code section 35-41-1-5.5, which went into effect on July 1, 2008, defines credit-

       restricted felon as “a person who has been convicted of … [c]hild molesting

       involving sexual intercourse [or] sexual deviate conduct … if: (A) the offense is

       committed by a person at least twenty-one (21) years of age; and (B) the victim

       is less than twelve (12) years of age.”


[24]   In arguing that the trial court erred in classifying him as a credit-restricted felon,

       Rogers asserts that his classification as a credit-restricted felon under Count I

       violates the constitutional prohibition of ex post facto laws. “Both the United




       3
        Rogers challenges his conviction under Count IV by arguing that the State failed to prove proper venue.
       However, for the reasons set forth in Footnote #2 on page 9, Rogers’s venue challenge fails.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020              Page 11 of 13
       States Constitution and the Indiana Constitution prohibit ex post facto laws.”

       Upton v. State, 904 N.E.2d 700, 705 (Ind. Ct. App. 2009). “The analysis is the

       same under both.” Id. (internal quotation omitted). “To fall within the ex post

       facto prohibition, a law must be retrospective—that is, it must apply to events

       occurring before its enactment—and it must disadvantage the offender affected

       by it.” Id. (internal quotation omitted).


[25]   As the State seems to acknowledge, it would constitute an impermissible

       violation of ex post facto prohibitions to attach the credit-restricted felon

       classification to Count I, which included a time frame before the statute

       creating the classification was enacted, i.e., May of 2008 to June 30, 2008. The

       State argues, however, that Rogers’s classification as a credit-restricted felon is

       proper given that the trial court clearly indicated in its oral sentencing statement

       that the classification attached to Count II. When oral and written sentencing

       statements conflict, we examine the statements together to discern the intent of

       the sentencing court. See Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App.

       2010). In this case, the trial court’s intent was clear. In its oral sentencing

       statement, the trial court found Rogers to be a credit-restricted felon with

       regards to the actions which occurred when K.Y. was seven or eight years old.

       There is no question that K.Y. turned seven after Indiana Code section 35-41-1-

       5.5 went into effect and that all of the charged conduct in Count II occurred

       when K.Y. was seven or eight years old. It would not violate ex post facto

       prohibitions to classify Rogers as a credit-restricted felon as to Count II. The

       trial court, therefore, properly classified Rogers as a credit-restricted felon.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020   Page 12 of 13
[26]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1509 | January 17, 2020   Page 13 of 13
