                                                                                FILED
                                                                           Jun 18 2018, 11:02 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Michael R. Fisher                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Andrew Seal,                                               June 18, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1711-CR-2547
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Grant W.
Appellee-Plaintiff                                         Hawkins, Judge
                                                           Trial Court Cause No.
                                                           49G05-1610-F1-42034



Crone, Judge.




Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018                            Page 1 of 20
                                              Case Summary
[1]   Andrew Seal appeals his conviction for committing level 1 felony child

      molesting against four-year-old S.P. He argues that the trial court abused its

      discretion in admitting his confession without independent evidence of the

      corpus delicti. Although he concedes that there is independent evidence that he

      committed level 4 felony child molesting by touching S.P.’s sex organ, he

      contends that the corpus delicti rule demands independent evidence of

      penetration of S.P.’s sex organ, which is the element that raises the offense to a

      higher felony level. He also argues that the evidence is insufficient to support

      his conviction.


[2]   We conclude that the independent evidence that Seal committed the offense of

      child molesting satisfies the purpose of the corpus delicti rule such that

      independent evidence of penetration is unnecessary for the admission of his

      confession. As such, the trial court did not abuse its discretion in admitting it.

      We also conclude that the evidence is sufficient to support his conviction.

      Therefore, we affirm.


                                  Facts and Procedural History
[3]   In 2014, Seal was hired as a teacher for the prekindergarten program at Daystar

      Childcare (“Daystar”), a ministry of Englewood Christian Church in

      Indianapolis. From August 2015 through May 2016, four-year-old S.P. was

      assigned to Seal’s classroom. In May 2016, while S.P.’s mother was putting

      S.P. in her car seat after dinner at a restaurant, S.P. told her mother about an


      Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018     Page 2 of 20
      incident with “Mr. Andy.” Tr. Vol. 2 at 64. S.P. said that at naptime, Seal

      touched her vagina with his finger under her clothes. Id. at 59-60.


[4]   S.P.’s parents took her to their pediatrician, who advised them to call Riley

      Children’s Hospital.1 Id. at 65. S.P.’s parents also called Child Protective

      Services (“CPS”). CPS conducted a forensic interview with S.P. the week after

      she confided in her mother, but S.P. did not disclose any inappropriate

      touching. Id. at 66.


[5]   S.P.’s mother reported S.P.’s allegations to a Daystar co-director. Daystar

      informed the Indiana Department of Child Services (“DCS”) and restricted Seal

      from returning to his classroom until “everything had been cleared” by DCS.

      Id. at 77. DCS personnel interviewed Seal regarding the incident with S.P.

      Seal stated that S.P. got up from her cot during naptime. When he instructed

      her to go back to her cot, she turned around, pulled her pants down, and

      “shook her bottom at him.” Id. at 78. Seal went to S.P.’s cot, told her to lie

      down, pulled up her pants, covered her with her blanket, and gave her some

      books. Id.


[6]   On July 20, 2016, Seal was cleared to return to his classroom. In August, Seal

      reported to a Daystar co-director that he had unintentionally touched three-

      year-old J.B. inappropriately when she jumped on his lap. Id. at 80-81; State’s

      Ex. 5. A Daystar co-director informed J.B.’s parents of the incident. In


      1
       The record does not reveal whether S.P. was examined by her pediatrician or by doctors at Riley Children’s
      Hospital.

      Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018                       Page 3 of 20
      September, J.B. told her mother about another incident. She said that at

      naptime Seal touched her “on [her] vagina” through her clothes or on top of her

      covers with his fingers or hand. Tr. Vol. 2 at 16-17. She said that he had done

      it more than once. Id. at 17. J.B.’s parents reported Seal’s conduct to Daystar

      and removed J.B. from Daystar’s programs. Id. at 22. Daystar terminated Seal

      and reported the allegations to DCS. Id at 86. Seal prepared a written

      statement providing accounts of five incidents with J.B., in which he denied

      that he had intentionally touched J.B. inappropriately. Id. at 87; State’s Ex. 6.


[7]   In late September or early October of 2016, Seal’s five-year-old daughter S.S.

      told her mother (Seal’s wife) that Seal had inappropriately touched her when

      they were in his bed. Tr. Vol. 2 at 32-33. S.S. said that she got in bed with

      Seal, and he started tickling her arms and then her “pee-pee.” Id. at 35. Then,

      he pulled down her pants and underwear and tickled her on top of her “pee-

      pee.” Id. at 36. Seal told S.S. not to tell, but she later told her mother. When

      S.S.’s mother confronted Seal with the allegations, he admitted they were true.


[8]   Detective Genae Cook of the Indianapolis Metropolitan Police Department

      investigated J.B.’s and S.S.’s allegations against Seal. Forensic interviews of

      J.B. and S.S. were conducted. During the investigation, Detective Cook

      learned of the earlier report regarding S.P. Detective Cook called S.P.’s parents

      and requested a follow-up forensic interview with S.P. Id. at 67. At this

      interview S.P. “made a disclosure.” Id.




      Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018   Page 4 of 20
[9]   As part of the investigation, Detective Cook conducted a videotaped interview

      with Seal. Seal signed a written advisement and waiver of his Miranda rights,

      and the following conversation took place:


              Q: So when you dealt with [S.P.], you said she just pulled her pa
              … pants down. So when you were watching her were you
              getting erections then? Did you start to feel it excite you?


              A: Yeah.


              Q: So when did you take a, take it to the next level?


              A: Um, she, at one point wanted me to just like put my finger
              down there so I did.


              Q: Okay. What do you mean put your finger down there?


              A. She wanted …


              Q: Tell me what you did?


              A: Like I put my finger down there. She grabbed ahold of my
              finger and started rubbin’ herself with my finger.


              ….


              Q: So you started rubbin’ her on her vagina then, did it become
              something that became somethin’ between you and her at
              naptime or anything?


              A: It … happened like three times.

      Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018   Page 5 of 20
        Q: So when you were touching [S.P.] was it over the underwear
        or under the underwear?


        A: Hers was under the underwear because she would pull her
        pants down.


        Q: Okay, so would your finger go up between the labia?


        A: Yeah.


        Q: Would you (inaudible) go inside?


        A: No.


        Q: Okay. But you would manipulate the labia …


        A: Yeah.


        Q: … get your finger up in there?


        A: Well, I, just on top.


        Q: Where did it …


        A: Like inside …


        Q: … did you go in between the crack?


        A: … yeah, yeah, yeah, yes, yes …


        Q: Okay.

Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018   Page 6 of 20
               A: … yes, yes.


               Q: But you’re not goin’ in the hole …


               A: No, no.


               Q: … you’re just goin’ in between the cracks …


               A: Yes.


               Q: … where the clitoris is?


               A: Yes.


       State’s Ex. 8 (DVD); State’s Ex. 9 pp. 26, 28-29 (transcript of DVD).


[10]   In October 2017, the State charged Seal with level 1 felony child molesting and

       level 4 felony child molesting of S.P. Appellant’s App. Vol. 2 at 29. Under

       separate cause numbers, the State also charged Seal with level 4 felony child

       molesting of J.B. and with level 1 felony child molesting and level 4 felony child

       molesting of S.S.


[11]   The three causes were consolidated for trial, and Seal waived his right to a jury

       trial. At the beginning of the bench trial, Seal indicated that he was contesting

       only the level 1 felonies based on the required element of penetration of the sex

       organ. Tr. Vol. 2 at 5-6. S.P., then six years old, testified that at naptime, Seal

       touched “[her] vagina.” Id. at 59. She testified that Seal pulled down her

       clothes and “touched [her] skin on [her] vagina” with “his finger.” Id. at 60.

       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018   Page 7 of 20
       She testified that this happened more than one time and it always happened at

       naptime. Id. at 59-60. When asked if his finger moved or stayed still when he

       touched her, she answered that “it stayed still.” Id. at 60. When asked how she

       felt when Seal was touching her vagina, she answered, “I don’t know.” Id. at

       60. Detective Cook testified that she interviewed Seal and that “he admitted to

       the allegations.” Id. at 95. The State submitted the DVD and transcript of

       Seal’s confession. State’s Exs. 8 and 9. Seal offered no objection at that time,

       and the trial court admitted the exhibits. At the conclusion of the evidence, the

       trial court found Seal guilty of level 4 felony child molesting in all three causes.

       However, for the level 1 felony child molesting charges, the trial court requested

       that the parties submit post-trial briefs on the law as to what constitutes

       penetration and whether the evidence proved penetration. Tr. Vol. 2 at 103,

       107. In his post-trial brief, Seal argued that the trial court could not consider

       any part of his confession as evidence of guilt to support a conviction for level 1

       felony child molesting because there was no independent evidence of the corpus

       delicti. Appellant’s App. Vol. 2 at 78-79.


[12]   At the sentencing hearing, the trial court first heard argument as to whether

       Seal’s confession was admissible as evidence on the level 1 felony child

       molesting charges and whether there was sufficient evidence of penetration.

       The trial court found that his confession was admissible and found Seal guilty

       of level 1 felony child molesting of S.P.2 The trial court sentenced Seal to



       2
           The trial court found Seal not guilty of level 1 felony child molesting of S.S.

       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018              Page 8 of 20
       twenty years for his level 1 felony child molesting conviction and six years for

       his level 4 felony conviction, to be served concurrent to one another, but

       consecutive to the sentences imposed under the other two causes. This appeal

       ensued.


                                       Discussion and Decision

            Section 1 – The trial court did not abuse its discretion in
                          admitting Seal’s confession.
[13]   Seal asserts that the trial court abused its discretion in admitting his confession

       as evidence of level 1 felony child molesting because there was no independent

       evidence of the corpus delicti. We review a trial court’s ruling on the

       admissibility of evidence for an abuse of discretion and will reverse “only when

       the decision is clearly against the logic and effect of the facts and

       circumstances.” Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017).


[14]   Before addressing the specific circumstances in this case, we briefly review the

       corpus delicti rule. “In Indiana, a person may not be convicted of a crime

       based solely on a nonjudicial confession of guilt. Rather, independent proof of

       the corpus delicti is required before the defendant may be convicted upon a

       nonjudicial confession.” Id. (citation omitted). Historically, the corpus delicti

       was defined as “[t]he body of a crime.... In a derivative sense, the substance or

       foundation of a crime; the substantial fact that a crime has been committed.”

       Brown v. State, 239 Ind. 184, 190, 154 N.E.2d 720, 722 (1958) (quoting BLACK’S




       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018   Page 9 of 20
       LAW DICTIONARY at 413 (4th ed. 1951)), cert. denied (1960). Evidence sufficient

       to satisfy the corpus delicti rule was described as follows:


               A dead body alone is not proof of the corpus delicti in a homicide
               case; but an identified dead body with marks of violence thereon
               or surrounding circumstances that would indicate the deceased
               did not die from natural causes establishes prima facie that a
               homicide has been committed and the corpus delicti. Likewise,
               the corpus delicti in an arson case is not established by the
               burning of a building alone, but additional independent evidence
               is necessary to show it was intentionally set afire in violation of
               the law. In other words, the independent evidence must be of
               such a character that reasonable inferences may be drawn to
               support a conclusion that a crime of the nature and character
               charged has been committed by someone.


       Id. at 190-91, 154 N.E.2d at 722 (citations omitted).


[15]   Our courts adapted the corpus delicti rule as our criminal law evolved. In Jones

       v. State, 253 Ind. 235, 252 N.E.2d 572 (1969), cert. denied (1977), our supreme

       court considered how the rule should be applied where a defendant was charged

       with first-degree murder in the commission of a felony pursuant to a statute that

       provided, “Whoever purposely and with premeditated malice, or in the

       perpetration of or attempt to perpetrate a rape, arson, robbery, or burglary, kills

       any human being, is guilty of murder in the first degree.” Id. at 246, 252

       N.E.2d at 578. Jones was charged with and convicted of first-degree murder

       while attempting to commit robbery. On appeal, he contended that although

       the State established the corpus delicti of murder, his confession to murder and




       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018   Page 10 of 20
       attempted robbery was inadmissible due to the State’s failure to show the

       corpus delicti of attempted robbery. The Jones court rejected his argument:


               [W]e hold that it is not necessary to make out a prima facie case as to
               each element of the crime charged nor is it necessary to prove each
               element of the crime charged beyond a reasonable doubt before a
               confession is admissible. …. [I]n first degree murder under our
               felony-murder statute we do not require that the exact felony or
               attempted felony be established by evidence independent of the
               confession nor do we require that premeditation be proved by
               outside independent evidence where the charge is purposeful and
               premeditated first degree murder. These elements may be shown
               by use of the confession in connection with any independent
               evidence in making out the case.


       Id. at 249, 252 N.E.2d at 580 (emphasis added).


[16]   Our supreme court discussed the difficulties of applying the corpus delicti rule

       to modern criminal law in Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990).

       The State charged Willoughby with murder, robbery, and criminal

       confinement, all committed within a single criminal episode. He twice

       confessed to all three crimes but argued that his confessions were inadmissible

       because there was no independent evidence of the corpus delicti of each of the

       crimes. Guided by the purpose of the corpus delicti rule, our supreme court

       held that a strict application of the rule is not always required:


               [T]o support the introduction of a defendant’s confession into
               evidence, the corpus delicti of the crime must be established by
               independent evidence of 1) the occurrence of the specific kind of
               injury and 2) someone’s criminal act as the cause of the injury.
               The corpus delicti rule arose from judicial hesitancy to accept

       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018     Page 11 of 20
         without adequate corroboration a defendant’s out-of-court
         confession of criminal activity. The primary function of the rule
         is to reduce the risk of convicting a defendant based on his
         confession for a crime that did not occur. Other justifications
         include the reduction of confessions produced by coercive tactics
         and the encouragement of thorough police investigations. The
         extent to which the rule actually furthers these goals has been
         seriously questioned, especially in light of developing procedural
         safeguards for voluntary confessions. Most federal courts and
         several state courts have adopted a more flexible
         “trustworthiness” requirement for confession corroboration. In
         the past this Court has declined to adopt the “trustworthiness”
         rule.[3] [Jones, 253 Ind. at 248, 252 N.E.2d at 578-79].


         Strict adherence to the corpus delicti rule, in light of its declining
         utility, presents great difficulties in modern criminal law.


                  If conscientiously applied, the requirement—especially the
                  corpus delicti formulation—contains fertile grounds for
                  numerous arguments and complexities of application.
                  Definition of the corpus delicti may have been a relatively
                  simple task when crimes were few and concisely defined.
                  But increased use of the criminal sanction has greatly
                  increased the number of criminal offenses. Further,
                  modern statutes tend to define offenses more precisely and
                  in greater detail than traditional case law. Defining the
                  corpus delicti has become more complex. Comprehensive
                  definitions of the corpus delicti, if incorporated into the


3
  Federal courts apply the trustworthiness standard adopted by the United States Supreme Court in Opper v.
United States, 348 U.S. 84, 93 (1954). The trend toward replacing the corpus delicti rule with a
trustworthiness standard has continued. See State v. Dern, 362 P.3d 566, 580-83 (Kan. 2015) (listing states that
have abandoned or modified the corpus delicti rule, explicitly adopting a standard of trustworthiness for the
admissibility of confessions for any crime that does not naturally or obviously produce a tangible injury easily
susceptible to physical proof, and stating, “The unfortunate fact that our longstanding recognition of [the
trustworthiness] method of showing the corpus delicti has all too often been obscured by our previous
insistence on reciting the formal rule even when inapplicable is remedied today.”).

Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018                          Page 12 of 20
                     corroboration requirement, may impose an unrealistic or
                     at least unnecessary burden upon the prosecution.


            [MCCORMICK ON EVIDENCE § 145 at 371 (3d ed. 1984).4]


            We are persuaded that where a defendant confesses to several
            crimes of varying severity within a single criminal episode, strict
            and separate application of the corpus delicti rule to each offense adds
            little to the ultimate reliability of the confession once independent
            evidence of the principal crimes is introduced. The confession at
            that point has been substantially corroborated. In such a case the
            confession stands as direct evidence of each crime, even those not
            separately corroborated, if the independent evidence establishes
            the corpus delicti of the principal crime or crimes.


Id. at 466–67 (emphases added) (citations omitted). The Willoughby court

concluded that there was independent evidence of murder and robbery and

“independent proof of the corpus delicti of criminal confinement was not

needed because of the adequate corroboration of the principal crimes discussed

in [Willoughby’s] confessions,” and therefore his confessions were admissible.

Id. at 468. See also Owens v. State, 732 N.E.2d 161, 163 (Ind. 2000) (affirming

admissibility of Owens’s confession to murder and rape, where there was no

independent evidence of rape, because “strict and separate application of the




4
    The current edition of the treatise states,
         Application of the corpus delicti formulation may have been a relatively simple task that
         accomplished the purpose of the corroboration requirement when crimes were few and were
         defined in simple and concise terms. But modern statutory criminal law has increased the
         number and complexity of crimes. Simply identifying the elements of the corpus delicti thus
         provides fertile ground for dispute.
1 MCCORMICK ON EVIDENCE § 147 at 815 (7th ed. 2013).

Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018                         Page 13 of 20
       corpus delicti rule to each offense adds little to the ultimate reliability of the

       confession once independent evidence of the principal crime is introduced”)

       (quoting Willoughby, 552 N.E.2d at 467).


[17]   Most recently in Shinnock, our supreme court summed up the corpus delicti rule

       as follows:


               Proof of the corpus delicti means proof that the specific crime
               charged has actually been committed by someone. Thus,
               admission of a confession requires some independent evidence of
               commission of the crime charged. 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. This inference may be created by circumstantial
               evidence.


               …. The State is not required to prove the corpus delicti by
               independent evidence prior to the admission of a confession, as
               long as the totality of independent evidence presented at trial
               establishes the corpus delicti.


       76 N.E.3d at 843 (citations and quotation marks omitted). The court also

       distinguished the level of proof required to establish the corpus delicti for the

       admission of a confession from that required to sustain a conviction:


               For the preliminary purpose of determining whether the
               confession is admissible, the State must present evidence
               independent of the confession establishing that the specific crime
               charged was committed by someone. The degree of proof
               required to establish the corpus delicti for admission of a
               confession is that amount which would justify the reasonable
               inference that the specific criminal activity had occurred. It is not

       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018    Page 14 of 20
               necessary to make out a prima facie case as to each element of
               the offense charged, and the corpus delicti may be shown by
               circumstantial evidence.


               On the other hand, in order to sustain a conviction the corpus
               delicti must be proved beyond a reasonable doubt. In
               determining the sufficiency of the evidence for conviction, the
               confession may be considered along with the independent
               evidence.


       Id. at 843-44 (quoting Harkrader v. State, 553 N.E.2d 1231, 1232-33 (Ind. Ct.

       App. 1990), trans. denied).


[18]   In Shinnock, the defendant was charged with and convicted of bestiality

       pursuant to Indiana Code Section 35-46-3-14(4), which required the State to

       prove that he “knowingly or intentionally perform[ed] an act involving . . .

       penetration of an animal’s sex organ by the human male sex organ.” He

       appealed, arguing that his confessions were inadmissible because the State

       failed to satisfy the corpus delicti rule. The Court of Appeals concluded that the

       State had not presented evidence of the penetration element, and therefore

       Shinnock’s confessions were inadmissible. However, our supreme court

       disagreed and affirmed Shinnock’s conviction. The court noted that “all the

       State had to present was independent evidence that provided an inference that

       the crime charged was committed.” Id. at 844. The court concluded that there

       was “ample circumstantial evidence that provide[ed] an inference that Shinnock

       committed bestiality.” Id. Specifically, the court observed that the animal, a

       dog, was not there to greet her owner when he arrived home like she usually did


       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018   Page 15 of 20
       but was trapped in Shinnock’s bedroom with him; when her owner opened the

       door to Shinnock’s bedroom, the dog ran to hide under the couch; the floor was

       covered in dog feces, which was unusual; and Shinnock was in his underwear

       and had an erection. Our supreme court concluded, “All the facts taken

       together suffice to demonstrate both that the dog was a victim and that

       Shinnock committed the crime. Accordingly, the trial court properly found that

       the corpus delicti rule was satisfied and admitted the confessions into

       evidence.” Id.


[19]   We now turn to the resolution of this case. Seal was charged with two counts

       of child molesting. He was charged with level 1 felony child molesting

       pursuant to Indiana Code Section 35-42-4-3(a), which provides,


               A person who, with a child under fourteen (14) years of age,
               knowingly or intentionally performs or submits to sexual
               intercourse or other sexual conduct (as defined in IC 35-31.5-2-
               221.5) commits child molesting, a Level 3 felony. However, the
               offense is a Level 1 felony if:


                        (1) it is committed by a person at least twenty-one (21)
                        years of age.


       Section 35-31.5-2-221.5 defines “other sexual conduct” as 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.” Our case law

       has established that a finger is an object for purposes of the child molesting

       statute. Simmons v. State, 746 N.E.2d 81, 86 (Ind. Ct. App. 2001), trans. denied.

       It is also well established that the female sex organ includes the external
       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018    Page 16 of 20
       genitalia and that the slightest penetration of the female sex organ constitutes

       child molesting. See, e.g., Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App.

       1991) (concluding that penetration of female sex organ includes penetration of

       external genitalia); Stetler v. State, 972 N.E.2d 404, 407-08 (Ind. Ct. App. 2012)

       (concluding that touching clitoral hood with finger supported jury’s finding that

       Stetler penetrated victim’s sex organ), trans. denied.


[20]   The State also charged Seal with level 4 felony child molesting, which is defined

       in Section 35-42-4-3(b) as follows:


               A person who, with a child under fourteen (14) years of age,
               performs or submits to any fondling or touching, of either the
               child or the older person, with intent to arouse or to satisfy the
               sexual desires of either the child or the older person, commits
               level 4 felony child molesting.


[21]   In support of the charges, six-year-old S.P. testified that Seal put his finger on

       her skin on her vagina and that he touched her more than one time. Seal

       confessed that he used his finger to rub S.P.’s vagina on three separate

       occasions and that his finger went “up between the labia … in between the

       crack … where the clitoris is.” State’s Ex. 9 pp. 28-29. Seal concedes that

       S.P.’s testimony provided independent evidence of level 4 felony child

       molesting and that his confession was admissible to prove that offense.

       Appellant’s Br. at 14-15. However, Seal argues that his confession pertaining to

       penetration of S.P.’s sex organ is not admissible to prove level 1 felony child

       molesting because there was no independent evidence of the element of

       penetration.

       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018     Page 17 of 20
[22]   Based on the foregoing cases, we conclude that Seal’s argument improperly

       focuses on a single element. As previously discussed, the admission of a

       confession requires some independent evidence that supports an inference that

       the crime charged was committed, but the corpus delicti rule does not require

       the State to “make out a prima facie case as to each element of the offense

       charged.” Shinnock, 76 N.E.3d at 843; Jones, 253 Ind. at 249, 252 N.E.2d at 580.

       Here, the specific crime charged is child molesting. S.P.’s testimony establishes

       that she was a victim of child molesting and that Seal was the perpetrator. Her

       testimony justifies a reasonable inference that Seal committed the offense of

       child molesting.5 In addition, despite her young age, her testimony includes

       details that match Seal’s confession; that is, during naptime he touched her

       vagina with his finger and he did so more than once. We note that there is no

       suggestion or evidence that Seal’s confession was procured through coercive

       tactics. The paramount consideration in applying the corpus delicti rule is

       whether independent evidence sufficiently corroborates the confession so that a

       defendant is not convicted of a crime that did not occur.6 Here, the

       independent evidence sufficiently corroborates Seal’s confession such that

       requiring the State to make a prima facie case on the element of penetration



       5
         In fact, S.P.’s testimony is sufficient evidence to prove beyond a reasonable doubt that Seal committed level
       4 felony child molesting. See Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (“A conviction can be sustained
       on only the uncorroborated testimony of a single witness, even when that witness is the victim.”).
       6
         Although this case satisfies the standard under the current corpus delicti rule, it may illustrate that it is time
       for our supreme court to consider updating our approach and adopting some form of the modern
       trustworthiness standard, as is now used by the federal courts and many states, which would accommodate
       the complexity and specificity of our modern criminal laws and effectively accomplish the purpose of the
       corpus delicti rule.

       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018                              Page 18 of 20
       would add “little to the ultimate reliability of the confession.” Willoughby, 552

       N.E.2d at 467.


[23]   In Brown, our supreme court observed,


                The purpose of requiring the proof of the corpus delicti in a
                criminal case is none other than to corroborate a confession
                before it is admissible. No other reason has been pointed out for
                the rule. When it serves that purpose there is no reason for
                extending it further, thus needlessly creating a technicality
                without any purpose or merit. Reason is the life of the law and
                when there is no reason for a rule there is nothing to sustain it.


       239 Ind. at 202-03, 154 N.E.2d at 728. We agree. We conclude that the trial

       court did not abuse its discretion in admitting Seal’s confession.7


           Section 2 - The evidence is sufficient to support Seal’s level 1
                         felony child molesting conviction.
[24]   Seal also challenges the sufficiency of the evidence supporting his level 1 felony

       child molesting conviction. In reviewing a claim of insufficient evidence, we do

       not reweigh the evidence or judge the credibility of witnesses, and we consider

       only the evidence that supports the judgment and the reasonable inferences

       arising therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will




       7
         Seal argues that “the Level 1 charge was the principal offense so that by implication, under the reasoning of
       Owens, independent evidence of that offense would be necessary.” Appellant’s Br. at 15. However, Seal’s
       offenses do not comprise a single criminal episode involving different crimes. His crimes involve different
       felony levels of the same crime, and for the reasons we have discussed, we do not believe that the purpose of
       the corpus delicti rule would be served by requiring independent evidence of all the elements required to
       prove the higher felony level.

       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018                          Page 19 of 20
       affirm if there is substantial evidence of probative value such that a reasonable

       trier of fact could have concluded the defendant was guilty beyond a reasonable

       doubt.” Id. “In determining the sufficiency of the evidence for conviction,

       [Seal’s] confession may be considered along with the independent evidence.”

       Shinnock, 76 N.E.3d at 844 (quoting Harkrader, 553 N.E.2d at 1233).


[25]   To convict Seal of level 1 felony child molesting, the State had to prove that he

       was at least twenty-one years old and knowingly or intentionally performed an

       act that involved the penetration of the sex organ of S.P., a child under the age

       of fourteen, by an object. Ind. Code §§ 35-42-4-3; 35-31.5-2-221.5; Appellant’s

       App. Vol. 2 at 29.


[26]   Seal asserts that S.P.’s testimony fails to provide substantial evidence of

       probative value and that his statement “is so equivocal as to provide no support

       for a conviction.” Appellant’s Br. at 19. We disagree. S.P. testified that Seal

       touched her on the skin of her vagina. In his statement, although Seal indicated

       that he was “not goin’ in the hole,” he confessed that his finger went “up

       between the labia … in between the crack … where the clitoris is.” State’s Ex. 9

       pp. 28-29. As previously noted, the slightest penetration of the female sex

       organ, including the external genitalia, constitutes child molesting. Short, 564

       N.E.2d at 559. Seal’s argument is a request to reweigh the evidence, which we

       must decline. Accordingly, we affirm his conviction.


[27]   Affirmed.


       Bailey, J., and Brown, J., concur.

       Court of Appeals of Indiana | Opinion 49A02-1711-CR-2547 | June 18, 2018   Page 20 of 20
