MEMORANDUM DECISION                                                         FILED
                                                                      Apr 12 2017, 11:31 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       CLERK
                                                                        Indiana Supreme Court
regarded as precedent or cited before any                                  Court of Appeals
                                                                             and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Alan D. Wilson                                            Curtis T. Hill, Jr.
Kokomo, Indiana                                           Attorney General of Indiana
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

C.C.,                                                     April 12, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          27A02-1611-JV-2960
        v.                                                Appeal from the Grant Superior
                                                          Court
State of Indiana,                                         The Honorable Dana J.
Appellee-Plaintiff.                                       Kenworthy, Judge
                                                          The Honorable Brian F. McLane,
                                                          Juvenile Magistrate
                                                          Trial Court Cause No.
                                                          27D02-1510-JD-195



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017           Page 1 of 10
                                           Case Summary
[1]   C.C. was adjudicated a juvenile delinquent for an act that, if committed by an

      adult, would constitute Child Molesting, as a Level 3 Felony. 1 He now appeals

      this adjudication.


[2]   We affirm.



                                                    Issues
[3]   C.C. presents two issues for our review, which we restate as:

                   I.     Whether there was sufficient evidence of intent to support
                          the judgment; and


                  II.     Whether the juvenile court committed fundamental error
                          when it did not sua sponte conduct an inquiry into the
                          testimonial competence of C.C.’s victim.


                                Facts and Procedural History
[4]   During 2015, C.C., aged fourteen years, was living with his grandparents and

      several other family members in Marion. In July 2014, relatives of C.C.,

      including seven-year-old S.B. and S.B.’s mother, moved into the home and

      remained there until August 2015. S.B. was, at the time of the proceedings

      before the juvenile court, being considered for evaluation for Attention




      1
          Ind. Code § 35-42-4-3(a).


      Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 2 of 10
      Deficit/Hyperactivity Disorder (“ADHD”) and autism due to self-harming and

      other socially atypical behavior.


[5]   Sometime in the summer of 2015, S.B. began to display sexualized behavior

      toward relatives and visitors to the home. In early August 2015, S.B.’s mother

      showed S.B. an ultrasound image from when she was pregnant with him, and

      identified body parts on the ultrasound. In response, S.B. reported having

      performed oral sex on C.C. S.B.’s mother contacted a therapist, who

      interviewed S.B. two days later; the therapist subsequently contacted police.


[6]   After an investigation, on October 27, 2015, the State filed its delinquency

      petition. The State alleged C.C. to be a delinquent by having engaged in one

      act that, if committed by an adult, would constitute Child Molesting, as a Level

      4 felony, and three acts that, if committed by an adult, would constitute Child

      Molesting, as Level 3 felonies.


[7]   On August 31, 2016, a fact-finding hearing was conducted on the petition.

      During the hearing, S.B. provided testimony; at the beginning of the testimony,

      the State inquired as to whether S.B. understood the difference between truth

      and lies. After the close of the State’s evidence, C.C. moved for directed

      verdict, and the court found C.C. not delinquent as to the Level 4 count and

      one Level 3 count. At the hearing’s conclusion, the juvenile court entered a

      true finding as to one of the remaining Level 3 counts, but concluded the State

      had not carried its burden on the remaining Level 3 count and dismissed it.




      Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 3 of 10
[8]    A dispositional hearing was conducted on October 26, 2016. At the end of the

       hearing, the court ordered C.C. to serve six months of probation and ninety

       days of detention, with the entirety of that term suspended, and ordered C.C. to

       engage in counseling and family services.


[9]    This appeal ensued.



                                  Discussion and Decision
                                  Sufficiency of the Evidence
[10]   C.C.’s first contention on appeal is that the State did not adduce sufficient

       evidence at the fact-finding hearing to sustain the trial court’s true finding as to

       conduct that would constitute Child Molesting, as a Level 3 felony, as alleged.

       Our standard of review for sufficiency of the evidence challenges in juvenile

       delinquency proceedings is the same as that in criminal sufficiency matters.

       A.M. v. State, 981 N.E.2d 91, 94 (Ind. Ct. App. 2012).


               Accordingly, we consider only the probative evidence and
               reasonable inferences supporting the verdict. Drane v. State, 867
               N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or
               assess the credibility of witnesses, and we consider conflicting
               evidence most favorably to the trial court’s ruling. Id. We will
               affirm if there is substantial evidence of probative value from
               which the trier of fact could reasonably infer that the appellant
               was guilty beyond a reasonable doubt. Dabner v. State, 258 Ind.
               179, 182, 279 N.E.2d 797, 798 (1972). But we will reverse if no
               reasonable trier of fact could find the elements of the offense
               proven beyond a reasonable doubt. Drane, 867 N.E.2d at 146.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 4 of 10
       Id.


[11]   Here, C.C. was alleged to have engaged in conduct that, if committed by an

       adult, would constitute Child Molesting, as a Level 3 felony. The State was

       required to prove beyond a reasonable doubt that C.C. knowingly or

       intentionally performed or submitted to sexual conduct, namely, an act

       involving the sex organ of one person and the mouth or anus of the other, with

       S.B. being under the age of fourteen. See I.C. § 35-42-4-3(a); App’x Vol. 2 at 12.


[12]   C.C.’s challenge relates only to whether there was sufficient evidence of intent

       necessary to sustain the true finding. “A person engages in conduct

       ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to

       do so.” I.C. § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when

       he engages in the conduct, he is aware of a high probability that he is doing so.”

       I.C. § 35-41-2-2(b). Intent “‘may be established by circumstantial evidence and

       may be inferred from the actor’s conduct and the natural and usual sequence to

       which such conduct usually points.’” Amphonephong v. State, 32 N.E.2d 825,

       833 (Ind. Ct. App. 2015) (quoting Bowles v. State, 737 N.E.2d 1150, 1152 (Ind.

       2000)).


[13]   The evidence adduced at the fact-finding hearing that supports the judgment is

       as follows. At the hearing, S.B. testified that when he and his parents were

       living in the same home as C.C., the two boys were in S.B.’s parents’ room

       when C.C. said S.B. could “put my mouth” on C.C.’s penis. (Tr. at 38.) When

       asked, “he [C.C.] said you [S.B.] could do that” and “[h]e was going to allow


       Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 5 of 10
       you to do that,” S.B. responded in the affirmative. (Tr. at 38.) When asked

       whether S.B. engaged in this act, S.B. said “Yes.” (Tr. at 38.) When the

       deputy prosecutor asked whether S.B. could “tell me any more about that”

       incident, S.B. stated that that was all he had to say. (Tr. at 39.)


[14]   After this questioning, the State inquired as to whether C.C. had shown S.B.

       any videos, and S.B. answered that this had occurred. The State asked what the

       videos portrayed, and S.B. stated, “Like about what he did in the house.” (Tr.

       at 41.) When the State asked whether the videos showed “people putting their

       mouths on someone’s penis,” S.B. answered “Yes.” (Tr. at 41.) When asked

       whether it “was close to the time that he showed you the video that these bad

       things happened,” S.B. answered in the affirmative. (Tr. at 41.)


[15]   S.B.’s testimony, then, is sufficient evidence from which the juvenile court

       could reasonably infer that C.C. knowingly or intentionally submitted to S.B.

       performing oral sex. To the extent that C.C. draws our attention to other

       evidence, including his own statement to police concerning other events

       involving him and S.B., we note that we are not free to reweigh evidence. We

       accordingly affirm the juvenile court’s judgment.


                                                Competence
[16]   We turn now to C.C.’s other contention on appeal, that the trial court erred

       when it did not exclude S.B.’s testimony as incompetent.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 6 of 10
[17]   Our rules of evidence provide that “[e]very person is competent to be a witness”

       unless otherwise provided by rule or statute. Ind. Evidence Rule 601.

       Specifically concerning children’s testimony, this Court has stated:


               A child’s competency to testify at trial is established by
               demonstrating that he or she (1) understands the difference
               between telling a lie and telling the truth, (2) knows he or she is
               under a compulsion to tell the truth, and (3) knows what a true
               statement actually is. Richard v. State, 820 N.E.2d 749, 755 (Ind.
               Ct. App.2005), trans. denied, cert. denied, 546 U.S. 1091, 126 S.Ct.
               1034, 163 L.Ed.2d 856 (2006). “To be qualified to testify, a child
               need not be a model witness, have an infallible memory, or
               refrain from making inconsistent statements.” Casselman v. State,
               582 N.E.2d 432, 435 (Ind. Ct. App. 1991).


       Kien v. State, 866 N.E.2d 377, 385 (Ind. Ct. App. 2007), trans. denied.


[18]   C.C. acknowledges that he did not raise an objection to this issue at trial.

       Preservation of error associated with the admission of evidence requires a

       contemporaneous objection to preserve an issue for appellate review. Brown v.

       State, 929 N.E.2d 204, 207 (Ind. 2010); Evid. R. 103(a). Where a defendant has

       otherwise waived appellate review through failure to lodge a contemporaneous

       objection, appellate relief may be obtained only in cases of fundamental error.

       Brown, 929 N.E.2d at 207. The fundamental error exception is “extremely

       narrow, and applies only when the error constitutes a blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error

       denies the defendant fundamental due process.” Id. (citations and quotations

       omitted). To obtain relief, the error must have made a fair trial impossible or


       Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 7 of 10
       amounted to a clearly blatant violation of basic and elementary principles of

       due process. Id.


[19]   Here, after the court administered an oath to S.B., the State examined S.B. to

       discern whether he understood the difference between the truth and a lie:


               Q:     Okay, uhm [S.B.] I want to talk about what the judge said
               the things that are the truth today, and not things that are a lie or
               things that are fantasy, okay?


               A:       Uhm uhm.


               Q:     Okay, and its [sic] very important to do that. Now if I
               where [sic] to say that this elephant you have here is alive and
               well and eats dinner and does his homework at night would that
               be the truth or lie?


               A:       Lie.


               Q:      Okay, and if I where [sic] to say that there’s 3 people
               sitting at this table would that be the truth or a lie?


               A:       Truth.


               Q:    Okay so its [sic] very important that we, everything that
               we talk about today is the truth, okay….


       (Tr. at 34.) On another occasion, the State twice asked S.B. whether he had

       told “the whole truth,” to which S.B. replied, “Yes.” (Tr. at 49.)




       Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 8 of 10
[20]   S.B. contends that despite this, the trial court should have rejected S.B.’s

       testimony, and that it erred when it did not conduct a further competency

       evaluation given S.B.’s sexualized behavior around the time of the alleged

       molestation by C.C., S.B.’s possible evaluation and treatment for ADHD or

       autism, and S.B.’s mother’s statement that S.B. would “drift into fantasy.”

       (Appellant’s Br. at 17.) Yet C.C. does not identify instances at trial in which

       any of this impinged upon his ability to cross-examine S.B. or led S.B. to give

       testimony that was entirely lacking in credibility. C.C. points to the trial court’s

       dismissal of one of the allegations of Child Molesting as establishing S.B. as not

       competent and, indeed, unreliable, and that the court itself recognized this.

       However, the trial court in that instance did not find S.B. unreliable: rather, it

       concluded that after hearing from C.C.’s witnesses, “there was some conflicting

       indication there and I can’t conclude beyond a reasonable doubt that, that

       [other offense] occurred.” (Tr. at 123.)


[21]   We cannot conclude, then, that the trial court committed fundamental error in

       permitting the State’s examination of S.B. to proceed without the court also

       making a separate competence determination.



                                                Conclusion
[22]   There was sufficient evidence adduced to sustain the trial court’s finding of

       “true” as to a single count of Child Molesting. There was no fundamental error

       associated with S.B.’s competence to testify at trial.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 9 of 10
[23]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1611-JV-2960 | April 12, 2017   Page 10 of 10
