MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                          Apr 26 2019, 8:57 am
regarded as precedent or cited before any
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
Kurt A. Young                                             Curtis T. Hill, Jr.
Nashville, Indiana                                        Attorney General of Indiana
                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Delonce Williams II,                                      April 26, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2222
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G04-1706-F3-21502



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2222 | April 26, 2019                     Page 1 of 6
[1]   Delonce Williams II appeals his conviction for attempted child molesting as a

      level 3 felony. Williams raises one issue which we revise and restate as whether

      the trial court committed fundamental error in instructing the jury. We affirm.


                                      Facts and Procedural History

[2]   Williams’s mother cared for G.W. while G.W.’s mother was at work. On one

      occasion when G.W. was younger than nine years old, Williams placed his

      wallet in his pocket and told G.W. to find it. G.W., with her eyes closed, used

      her hands to find Williams’s wallet. G.W. said she had found it, and Williams

      replied that it was just money in his pocket, moved her hand toward his penis,

      and made her touch his penis over his clothes. On another occasion, Williams

      told G.W. to lean over, and she complied. Williams pulled down G.W.’s pants

      and placed his penis in her bottom. Williams removed his penis, leaned on a

      bed, and looked out a window to make sure that no one was coming. Williams

      leaned over the bed, “took [G.W.’s] head” and “pushed it down to his private

      part,” and said “Suck it,” and G.W. said “No.” Transcript Volume 2 at 52.

      Williams’s penis touched G.W.’s lips but did not enter her mouth.


[3]   The State charged Williams with: Count I, attempted child molesting as a level

      3 felony; Count II, child molesting as a level 3 felony; Count III, child

      molesting as a level 4 felony; and Count IV, child molesting as a level 4 felony.

      At Williams’s jury trial, the trial court gave Instruction No. 5A regarding the

      crime of attempted child molesting. The State dismissed Count II, and the jury

      found Williams guilty of Counts I, III, and IV. The court sentenced Williams

      to an aggregate term of nine years with four years suspended.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2222 | April 26, 2019   Page 2 of 6
                                                       Discussion

[4]   The issue is whether the trial court committed fundamental error in instructing

      the jury regarding the crime of attempted child molesting. 1 Instruction No. 5A

      provided:


                 The crime of Child Molesting is defined by law as a person who,
                 with a child under fourteen (14) years of age, performs or submits
                 to sexual intercourse or other sexual conduct, commits child
                 molesting, a Level 3 Felony. A person attempts to commit Child
                 Molesting when, acting with the culpability required for
                 commission of the crime, he engages in conduct that constitutes a
                 substantial step toward commission of the Child Molesting. The
                 crime of Attempted Child Molesting, as charged in Count I, is a
                 Level 3 Felony.

                 Before you may convict the Defendant, the State must prove
                 each of the following beyond a reasonable doubt:

                          1. The Defendant, Delonce Williams II

                          2. acting intentionally or knowingly with the culpability
                          required to commit the crime of Child Molesting, which is
                          defined as:

                                   A. The Defendant

                                   B. when [G.W.] was a child under fourteen (14)
                                   years of age

                                   C. knowingly or intentionally

                                   D. performed or submitted to other sexual conduct




      1
          Williams does not present argument as to his other convictions.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2222 | April 26, 2019   Page 3 of 6
                               E. with [G.W.]

                       3. did lay down on the bed, pulled down his pants,
                       grabbed [G.W.’s] head and pulled it towards his penis

                       4. which was conduct constituting a substantial step
                       toward the commission of the crime of Child Molesting.

              If the State failed to prove each of these elements beyond a
              reasonable doubt, you must find the Defendant not guilty of the
              crime of Attempted Child Molesting, a Level 3 Felony, charged
              in Count I.


      Appellant’s Appendix Volume II at 124.


[5]   Williams asserts that Instruction Number 5A “did not state, as it should have,

      that in order to prove [him] guilty, the evidence must show beyond a reasonable

      doubt that he attempted to ‘intentionally’ commit child molesting” and that,

      “[i]nstead, it said merely that the evidence must show that he attempted to

      ‘knowingly or intentionally’ commit the crime.” Appellant’s Brief at 12-13. He

      asserts the instruction was fundamentally erroneous. The State responds that

      Williams failed to object to the jury instructions at trial and that the challenged

      instruction was proper and did not mislead the jury as to a correct

      understanding of the law.


[6]   Williams does not point to the record to show that he objected to Instruction

      No. 5A or offered an alternative instruction. Williams has waived his claim.

      See Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011) (observing the defendant

      had neither objected to the trial court’s instruction nor offered an instruction of

      his own and accordingly waived the issue), reh’g denied. We will review an issue

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2222 | April 26, 2019   Page 4 of 6
      that was waived at trial if we find fundamental error occurred. Id. In order to

      be fundamental, the error must be so prejudicial to the defendant’s rights as to

      make a fair trial impossible. Id. In considering whether a claimed error denied

      the defendant a fair trial, we determine whether the resulting harm or potential

      for harm is substantial. Id. at 1178-1179.


[7]   Ind. Code § 35-42-4-3(a) provides that a person 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 3 felony.

      Other sexual conduct includes an act involving a sex organ of one person and

      the mouth of another person. See Ind. Code § 35-31.5-2-221.5. Ind. Code § 35-

      41-5-1(a) provides in part: “A person attempts to commit a crime when, acting

      with the culpability required for commission of the crime, the person engages in

      conduct that constitutes a substantial step toward commission of the crime. An

      attempt to commit a crime is a felony or misdemeanor of the same level or class

      as the crime attempted.” “[T]he culpability requirement of the child molesting

      statute is ‘knowingly or intentionally.’” Amphonephong v. State, 32 N.E.3d 825,

      832-833 (Ind. Ct. App. 2015) (citing Louallen v. State, 778 N.E.2d 794, 798 (Ind.

      2002)). The instruction challenged by Williams provided that “[a] person

      attempts to commit Child Molesting when, acting with the culpability required for

      commission of the crime, he engages in conduct that constitutes a substantial step

      towards commission of the Child Molesting.” Appellant’s Appendix Volume II

      at 124. The instruction further provided that the State was required to prove that

      Williams “acting intentionally or knowingly with the culpability required to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2222 | April 26, 2019   Page 5 of 6
      commit the crime of Child Molesting, which is defined as: . . . knowingly or

      intentionally . . . performed or submitted to other sexual conduct . . . grabbed

      [G.W.’s] head and pulled it towards his penis . . . .” Id. The instruction is not

      inconsistent with the culpability provisions of Ind. Code § 35-41-5-1 or Ind.

      Code § 35-42-4-3 and did not result in an unfair trial. 2 Williams has not

      demonstrated that the trial court, in giving Instruction No. 5A, committed

      fundamental error.


[8]   For the foregoing reasons, we affirm.


[9]   Affirmed.


      May, J., and Mathias, J., concur.




      2
        To the extent Williams argues the instruction should have stated that the evidence must show that he
      attempted to intentionally commit child molesting, reversal is not warranted on that basis. See Noble v. State,
      725 N.E.2d 842, 845 (Ind. 2000) (“[T]o establish attempted child molesting, the State must prove that Noble
      knowingly or intentionally attempted to commit child molesting, and engaged in an overt act constituting a
      substantial step toward the commission of the crime. Richeson v. State, 704 N.E.2d 1008 (Ind. 1998) (specific
      intent not required in attempt crimes other than murder); Ward v. State, 528 N.E.2d 52, 54 (Ind. 1988)
      (elements of attempted child molesting)”).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2222 | April 26, 2019                       Page 6 of 6
