                                                                                      FILED
                                                                                  Jul 14 2017, 9:08 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




                                                            ATTORNEYS FOR APPELLEE
                                                            Curtis T. Hill, Jr.
                                                            Attorney General

                                                            Katherine Cooper
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA

D.P.,                                                       July 14, 2017
Appellant-Respondent,                                       Court of Appeals Case No.
                                                            85A04-1702-JV-383
        v.                                                  Appeal from the Wabash Circuit
                                                            Court
State of Indiana,                                           The Honorable Robert R.
Appellee-Petitioner                                         McCallen, II, Judge
                                                            Trial Court Cause No.
                                                            85C01-1610-JD-52



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017                           Page 1 of 7
                                            Case Summary
[1]   D.P. appeals his adjudication as a juvenile delinquent based on the juvenile

      court’s finding that he committed an act that would be Level 4 felony child

      molesting if committed by an adult. He argues that the evidence is insufficient.

      Based on the evidence presented at the fact-finding hearing, we do not believe

      that a reasonable factfinder could find beyond a reasonable doubt that D.P.

      touched or fondled the victim with the intent to arouse or satisfy sexual desires.

      We therefore find that the evidence is insufficient to support the true finding for

      Level 4 felony child molesting.



                             Facts and Procedural History
[2]   In August 2016, the Department of Child Services contacted the Wabash City

      Police Department about child-molesting allegations that four-year-old B.M.

      had recently made against ten-year-old D.P. B.M.’s father and D.P.’s mother

      lived together, and on the weekends B.M. would visit her father, which is where

      the molestations allegedly occurred. B.M. made the allegations during a

      videotaped interview at the Child Advocacy Center in Marion, Indiana. As

      D.P. acknowledges on appeal, B.M. made very specific and incriminating

      allegations against him in the videotaped interview, see Appellant’s Br. p. 6, but

      this video was not admitted into evidence at the fact-finding hearing under our

      Protected Person Statute. See Ind. Code § 35-37-4-6.




      Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017    Page 2 of 7
[3]   In October 2016, the State filed a petition alleging that D.P. was a delinquent

      child for committing acts that would be Level 3 felony child molesting (sexual

      intercourse or other sexual conduct) and Level 4 felony child molesting

      (fondling or touching with intent to arouse or satisfy sexual desires) if

      committed by an adult.

[4]   A fact-finding hearing was held in December 2016. Four-year-old B.M.

      testified at the hearing. As the juvenile court later explained, B.M. was “very

      young” and testifying was “difficult” for her. Appellant’s App. Vol. II p. 44.

      B.M. testified that, on one occasion, D.P. told B.M. to “come here.” Tr. Vol. II

      p. 20. He then touched B.M. on her “hooha” and her “butt” with his “hand.”

      Id. at 20-21; see also Ex. 1 & 2.1 B.M. identified her “hooha” as the genital area

      on an anatomical drawing of a little girl by drawing a circle. See Tr. Vol. II pp.




      1
        In its fact-finding order, the juvenile court noted that B.M. pointed to D.P.’s “penis” area when describing
      the touching that occurred, but this is not clearly reflected in the testimony. For example, the following
      exchange at the fact-finding hearing does not reflect which body parts B.M. was referring to:


               THE COURT:         Did he touch you right where Mr. Plummer’s pointing now? Okay.
               Q:       Both places? You have to say yes or no.
               A:       Yes!
      Tr. Vol. II p. 23. Accordingly, when setting forth the facts in its brief, the State does not allege any touching
      involving D.P.’s penis. See Appellee’s Br. p. 5 (Statement of the Facts). Rather, the State alleges that D.P.
      touched B.M.’s “hooha” and “butt” with his “hand.”

      Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017                               Page 3 of 7
      18-21; Ex. 1. B.M. had her clothes on at the time and did not feel the touching.

      Tr. Vol. II pp. 23, 26.2

[5]   The juvenile court found the Level 4 felony child molesting allegation true (but

      not the Level 3 felony) and adjudicated D.P. a delinquent child. The court held

      a dispositional hearing in February 2017 and ordered D.P. to serve ten days in a

      detention facility and placed him on probation for twelve months.

[6]   D.P. now appeals.



                                    Discussion and Decision
[7]   D.P. contends that the evidence is insufficient to support the true finding for

      Level 4 felony child molesting. Though juvenile adjudications are not criminal

      matters, when the State petitions to have a child adjudicated delinquent for an

      act that would be a crime if committed by an adult, due process requires the

      State to prove its case beyond a reasonable doubt. S.M. v. State, 74 N.E.3d 250,

      253 (Ind. Ct. App. 2017). When reviewing whether the State’s evidence

      was sufficient to meet its burden, our standard is familiar. Id. We view the

      facts and the reasonable inferences from them in the light most favorable to the

      true finding. Id. We neither reweigh the evidence nor re-evaluate witness




      2
       B.M. also said that D.P. “humped” her, but B.M. described this as “hugging.” Tr. Vol. II pp. 31-34.
      The State called another child to testify at the fact-finding hearing, five-year-old S.L. S.L. testified that
      she saw D.P. and B.M., who were wearing clothes, watch a movie using a blanket one time. Id. at 43.



      Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017                                 Page 4 of 7
      credibility. Id. We will affirm unless no reasonable fact-finder could have

      found the elements of the crime proven beyond a reasonable doubt. Id. We

      may affirm the judgment even if it is supported by only the uncorroborated

      testimony of the victim. Id.


[8]   To sustain the true finding that D.P. committed an act that would constitute

      Level 4 felony child molesting if committed by an adult, the State was required

      to prove beyond a reasonable doubt that D.P., with a child under fourteen years

      of age (B.M.), performed or submitted to fondling or touching with the intent to

      arouse or satisfy the sexual desires of either B.M. or himself. Ind. Code § 35-42-

      4-3(b); Appellant’s App. Vol. II pp. 46-47. We find that on this sparse record,

      the State has failed to prove beyond a reasonable doubt that the touching or

      fondling was committed with the intent to arouse or satisfy sexual desires.

[9]   In T.G. v. State, 3 N.E.3d 19, 24 (Ind. Ct. App. 2014), trans. denied, we held that

      “it is unreasonable to infer intent to satisfy or arouse sexual desire solely from

      the fact that [a] child intentionally touched another child’s genitals” given that

      children may experiment by looking at and touching another child’s genitals.

      Accordingly, we said that other circumstances must be present that indicate

      such intent. In that case, we found “several circumstances” that were relevant

      to whether T.G. touched the victim with the intent to arouse or satisfy his

      sexual desires:

              First, the ages of the children are relevant. T.G. was eleven years
              old. He is not a very young child. T.G. is significantly older
              than [the victim], who was only six. They cannot be considered

      Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017       Page 5 of 7
               peers. The purpose of the child molestation statute “is to prohibit
               the sexual exploitation of children by those with superior
               knowledge or experience who are therefore in a position to take
               advantage of children’s naivety.” C.D.H. v. State, 860 N.E.2d
               608, 612 (Ind. Ct. App. 2007), trans. denied. Also, “‘age
               differential is an important factor that may and should be
               considered’ when determining a minor’s criminal liability under
               a statute proscribing lewd or lascivious conduct with a child.” Id.
               (quoting In re P.M., 156 Vt. 303, 592 A.2d 862, 864 (1991)).
               Second, T.G. had previously kissed [the victim] on the lips with
               an open mouth. Third, this was not the first time that he put his
               hand in her underwear and touched her genitals. Fourth, T.G.
               rubbed [the victim’s] genitals, he did not simply touch them.
               Fifth, he told [the victim] to touch his penis, not once, but
               repeatedly.


       Id. (footnote omitted). Given all these circumstances, we held that a reasonable

       factfinder could find beyond a reasonable doubt that T.G. touched or fondled

       the victim with the intent to arouse or satisfy his sexual desires. Accordingly,

       we affirmed T.G.’s true finding.

[10]   One of the circumstances in T.G. is present in this case. That is, D.P. was ten

       years old and B.M. was four years old, resulting in a six-year age difference.

       But that is where the similarities between these cases end. At the fact-finding

       hearing, B.M. testified to only one incident of touching. That touching

       involved D.P. touching B.M.’s “hooha” and her “butt” with his “hand” while

       her clothes were on. Although B.M. identified her “hooha” as her genital area




       Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017   Page 6 of 7
       on an anatomical drawing of a little girl by drawing a circle, see Ex. 1,3 there

       was no evidence of exactly where D.P. touched B.M., how he touched her (for

       example, touching or rubbing), or how long he touched her. Moreover, B.M.

       did not feel the touching. And there was no evidence of any kissing or D.P.

       asking B.M. to touch him. While we acknowledge that B.M. was a young

       witness and there was great difficulty in procuring her testimony, we are

       restricted to the evidence presented at the fact-finding hearing. And based on

       that evidence only, we do not believe that a reasonable factfinder could find

       beyond a reasonable doubt that D.P. touched or fondled B.M. with the intent to

       arouse or satisfy his sexual desires. The evidence is therefore insufficient to

       support the true finding for Level 4 felony child molesting.

[11]   Reversed.


       Bailey, J., and Robb, J., concur.




       3
           The circle B.M. drew also included the upper thighs and the lower stomach. See Ex. 1.


       Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017                     Page 7 of 7
