MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Mar 08 2016, 6:02 am

regarded as precedent or cited before any
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
Bruce W. Graham                                          Gregory F. Zoeller
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana                                       Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

William Coleman,                                         March 8, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1507-CR-955
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D02-1406-FA-14



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016          Page 1 of 12
[1]   William Coleman (“Coleman”) was convicted in Tippecanoe Superior Court of

      Class A felony child molesting. Coleman appeals his conviction and raises the

      following two issues:


              I. Whether the trial court abused its discretion when it gave an
              additional jury instruction during jury deliberations; and,


              II. Whether the State presented sufficient evidence that Coleman
              penetrated the victim’s sex organ.


[2]   We affirm.


                                    Facts and Procedural History

[3]   On or about April 21, 2012, forty-one-year-old Coleman attended a party at a

      friend’s home, which was also attended by the friend’s children, including

      seven-year-old K.B. Coleman had been drinking and asked to sleep on his

      friend’s couch. During the middle of the night, Coleman entered K.B.’s

      bedroom and pulled her pants and underwear down to her ankles. He then

      touched K.B.’s vagina with his finger and moved his finger around while his

      finger was “partly in” her vagina. Tr. p. 103.


[4]   Coleman then briefly left K.B.’s bedroom to retrieve a phone or camera. K.B.

      pulled her underwear and pants back up while he was gone, but when Coleman

      returned he pulled her pants and underwear back down. K.B. then heard the

      sound of a photograph being taken and saw two flashes. Coleman pulled K.B.’s

      underwear and pants back up and left K.B.’s bedroom. K.B. then heard the

      sound of the front door of the house closing.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016   Page 2 of 12
[5]   The next morning, K.B. reported the incident to her parents. Her parents

      reported the incident to the police, and K.B. was taken to Riley Hospital for an

      examination by a sexual assault nurse. The nurse found a piece of redundant

      skin on K.B.’s labia majora. The exam also indicated swelling or thickening of

      K.B.’s hymen.


[6]   The pediatrician who also examined K.B. concluded that thickening of the

      hymen could be a normal variation and scheduled K.B. for a follow up

      examination to rule out trauma. When K.B. was reexamined two weeks after

      the first exam, her hymen was no longer thickened, and its appearance was

      consistent with what one would expect in a seven-year-old child. Therefore, the

      pediatrician concluded K.B.’s thickened hymen was consistent with trauma and

      could have been caused by finger contact.


[7]   The piece of redundant skin found on K.B.’s labia majora was sent to the

      Indiana State Police Laboratory. A forensic biologist concluded that the DNA

      from the collected sample was consistent with Coleman’s DNA.


[8]   On June 2, 2014, Coleman was charged with Class A felony child molesting

      and Class C felony child molesting. A two-day jury trial commenced on June 9,

      2015. During closing arguments, Coleman admitted to touching K.B. in a

      sexual manner, but argued that the State failed to prove that Coleman

      penetrated her sex organ with his finger.


[9]   During deliberations, the jury directed numerous questions to the trial court

      concerning the Class A felony charge and specifically concerning the element of

      Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016   Page 3 of 12
       penetration. The trial court told the jury on each occasion that the court could

       not answer its questions.

[10]   Eventually, the jury informed the court that it had reached an impasse on the

       Class A felony charge. The court asked what could be done to assist the jury,

       and the foreperson specifically requested a legal definition of penetration.

       Therefore, over Coleman’s objection, the trial court determined that it was

       appropriate to re-read all of the final instructions to the jury and to include the

       following statement, which the court originally omitted from the State’s

       proposed final instructions: “Penetration does not require that the vagina be

       penetrated, only that the female sex organ, including the external genitalia, be

       penetrated.” Tr. p. 384.


[11]   The jury returned to its deliberations and found Coleman guilty of both Class A

       and Class C felony child molesting. At the sentencing hearing, the trial court

       merged the two counts and entered judgment of conviction only on the Class A

       felony count. The court then ordered Coleman to serve thirty-five years in the

       Department of Correction, with five years suspended to probation. Coleman

       now appeals.

                                               Jury Instruction

[12]   Coleman argues that the trial court abused its discretion when it gave an

       additional jury instruction after jury deliberations had begun and the jury had

       reached an impasse on the Class A felony charge. “We review a trial court’s

       instructions to the jury for an abuse of discretion.” Isom v. State, 31 N.E.3d 469,


       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016   Page 4 of 12
       484 (Ind. 2015). The trial court abuses its discretion “when the instruction is

       erroneous and the instructions taken as a whole misstate the law or otherwise

       mislead the jury.” Id. at 484-85.


[13]   As a general rule, after the jury begins its deliberations, the trial court should

       not give any additional instructions. Hero v. State, 765 N.E.2d 599, 602 (Ind. Ct.

       App. 2002) (citing Crowdus v. State, 431 N.E.2d 796, 798 (Ind. 1982)), trans.

       denied. “This rule prevents the trial court from giving special emphasis,

       inadvertent or otherwise, to a particular issue in the case, and thus avoids the

       possibility that the additional instruction might tell the jury what it ought to do

       concerning that issue.” Dowell v. State, 973 N.E.2d 58, 60 (Ind. Ct. App. 2012)

       (citing Crowdus, 431 N.E.2d at 798).


[14]   “[O]ne limited and narrow exception” to that “strict rule” exists. Graves v. State,

       714 N.E.2d 724, 726 (Ind. Ct. App. 1999). “[T]he court may modify its

       instructions when it is faced with an omitted instruction or an erroneous

       instruction, so long as it is fair to the parties.” Hero, 765 N.E.2d at 602 (citing

       Jenkins v. State, 424 N.E.2d 1002, 1003 (Ind. 1981)). Specifically,


               [i]t is only when the jury question coincides with an error or
               “legal lacuna” in the final instructions that a response other than
               rereading from the body of final instructions is permissible. A
               “lacuna” is an “empty space or missing part; a gap.” If the trial
               court decides to give an additional instruction because the
               question relates to a “legal lacuna,” the trial court must reread all
               of the instructions so that the additional instruction will not be
               over-emphasized.



       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016   Page 5 of 12
       Dowell, 973 N.E.2d at 60 (internal citations omitted).


[15]   In this case, the trial court initially declined to give the following instruction,

       which was included in the State’s proposed final instructions:


               Penetration does not require that the vagina be penetrated, only
               that the female sex organ, including the external genitalia, be
               penetrated.


       Tr. p. 384. During its deliberations, the jury sent questions to the trial court

       concerning the “legal definition” of penetration and the definition of the “sex

       organ.” Tr. pp. 367, 369. Each time, the court declined to answer the questions

       and advised the jury to re-read the final instructions.


[16]   Eventually, the jury reached an impasse in its deliberation of the Class A felony

       child molesting charge. The foreperson informed the court that a definition of

       penetration would assist them with their deliberations on that charge. Tr. p.

       376.


[17]   Therefore, the trial court decided to give the State’s proposed final instruction

       that it originally declined to tender to the jury and stated:


               I believe [the omitted instruction] is an accurate statement of the
               law but the court was reluctant to provide that in the instruction
               in the past because it wasn’t part of the approved instruction in
               the case law that I found. However, based upon what they’ve
               indicated to the court now I find that there is a legal lacuna
               which I think is the proper terminology which means that the
               jury is confused about a legal concept that has not been
               sufficiently explained in the instructions. And so I’m going to
               find that it would be proper to reinstruct the jury with the
       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016   Page 6 of 12
                additional part of the instruction that the State had requested
                which is penetration does not require the vagina to be penetrated only
                that the female sex organ including the external genitalia be penetrated.


       Tr. pp. 379-80 (emphasis added). The trial court then replaced the original

       instruction with the instruction containing the previously omitted language

       concerning penetration and re-read the court’s final instructions in their entirety

       to the jury. See Tr. pp. 380-92.


[18]   Importantly, the additional instruction tendered to the jury is a correct

       statement of law.1 See Morales v. State, 19 N.E.3d 292, 298 (Ind. Ct. App. 2014),

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

       denied; Smith v. State, 779 N.E.2d 111, 115 (Ind. Ct. App. 2002), trans. denied; see

       also Ind. Code § 35-31.5-2-221.5 (replacing Ind. Code § 35-41-1-9). Also, “[t]he

       purpose of an instruction is to inform the jury of the law applicable to the facts

       without misleading the jury and to enable it to comprehend the case clearly and

       arrive at a just, fair, and correct verdict.” Overstreet v. State, 783 N.E.2d 1140,

       1163 (Ind. 2003). Moreover, the additional instruction properly clarified the

       legal meaning of the term “penetration” for the jury. See Hero, 765 N.E.2d at

       602 (stating that “[b]ecause the jury question coincided with a legal lacuna




       1
        For this reason, we reject Coleman’s argument that no evidence supports giving the instruction or that the
       court “resolved an evidentiary deficiency by” giving the additional penetration instruction. See Appellant’s
       Br. at 13-14.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016               Page 7 of 12
       present in the tendered instructions, the lower court had the authority to do

       more than just re-read the original instructions”).

[19]   Moreover, we are not persuaded by Coleman’s argument that the trial court

       gave the jury an impermissible “Allen charge,” which is a “supplemental

       instruction suggesting to an apparently deadlocked jury that it should reach a

       verdict, or similar admonishment which might encourage the jury to unduly

       compromise the verdict.” See Clark v. State, 597 N.E.2d 4, 7 (Ind. Ct. App.

       1992), trans. denied; see also Allen v. United States, 164 U.S. 492 (1896); Lewis v.

       State, 424 N.E.2d 107, 109 (1981) (stating that an “Allen charge” is a

       “designation given to a supplemental charge given by a trial judge to an

       apparently deadlocked jury”).

[20]   Nothing in the record indicates that the trial court believed that the jury was

       deadlocked. The jury’s questions to the court during its deliberations reflect its

       confusion over the meaning of the term “penetration.” The trial court

       eventually determined that a gap or “legal lacuna” in the instructions prevented

       the jury from reaching a verdict after the foreperson informed the court that a

       definition of penetration would assist them with their deliberations. Tr. p. 376.

       The trial court reasonably believed that the jury was confused, and further

       clarification of the law was appropriate and necessary. Simply, no evidence in

       the record suggests that the additional instruction was given to coerce the jury

       into reaching a verdict that was not truly unanimous.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016   Page 8 of 12
[21]   We also conclude that Coleman was not prejudiced when the jury was given

       the additional instruction. The trial court noted that tendering only the

       additional penetration instruction to the jury would be improper. Tr. p. 380.

       Therefore, the trial court re-read the court’s final instructions to the jury in their

       entirety, including the penetration instruction. The additional instruction was

       not emphasized in any way when the final instructions were re-read to the jury.

       The additional penetration instruction provided a legal definition.2 It did not

       unnecessarily emphasize a particular evidentiary fact or any witness testimony.


[22]   For all of these reasons, we conclude that the trial court did not abuse its

       discretion when it gave the additional penetration instruction to the jury during

       its deliberations.


                                                Sufficient Evidence

[23]   When the sufficiency of evidence is challenged, we neither reweigh the

       evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d

       124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126

       (Ind. 2005)), trans. denied. Rather, we recognize the exclusive province of the

       trier of fact to weigh any conflicting evidence, and we consider only the

       probative evidence supporting the conviction and the reasonable inferences to

       be drawn therefrom. Id. If substantial evidence of probative value exists from

       which a reasonable trier of fact could have drawn the conclusion that the



       2
        Trial courts have discretion to give instructions that include definitions of words or phrases. See Erickson v.
       State, 439 N.E.2d 579, 580 (Ind. 1982).

       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016                  Page 9 of 12
       defendant was guilty of the crime charged beyond a reasonable doubt, then the

       verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind.

       Ct. App. 2008).


[24]   Coleman argues that the evidence is insufficient to sustain his Class A felony

       child molesting conviction because the State failed to prove that his finger

       penetrated K.B.’s sex organ. Appellant’s Br. at 17; see also Indiana Code § 35-

       42-4-3(a)(1); Appellant’s App. p. 59 (charging Coleman with performing deviate

       sexual conduct “to wit: an act involving the hand and/or finger of [Coleman]

       and the vagina of K.B.”). On the date Coleman committed the offense, deviate

       sexual conduct was defined as “an act involving . . . the penetration of the sex

       organ or anus of a person by an object.”3 See former Ind. Code § 35-31.5-2-94. 4


[25]   K.B. testified that Coleman touched her vagina with his finger and moved his

       finger around. Tr. p. 102. She explained that his finger was partly “on top of

       skin and partly in.” Tr. p. 103. She testified that it felt uncomfortable. Id.


[26]   Dr. Tara Harris, who specializes in child abuse pediatrics, observed that K.B.’s

       hymen appeared swollen or thickened, which is not “the typical appearance

       [she] would see on a prepubertal child.” Tr. p. 176; see also tr. pp. 180-81. Dr.




       3
         The trial court instructed the jury by reading the charging information and the statutory definition of deviate
       sexual conduct. Tr. pp. 354, 357. During closing arguments, the State argued that it had proven that Coleman
       penetrated K.B.’s “sex organ” with his finger. Tr. pp. 339, 351.
       4
         Effective July 1, 2014, the General Assembly repealed the former statute defining deviate sexual conduct
       and replaced it with Indiana Code section 35-31.5-2-221.5, which defines “other sexual conduct” as “an act
       involving . . . the penetration of the sex organ or anus of a person by an object.”

       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016                Page 10 of 12
       Harris also explained that the hymen is “a thin piece of tissue that surrounds

       the edges of the vaginal opening.” Tr. p. 176. Dr. Harris used diagrams and

       photographs, which were admitted as exhibits to describe the female genitalia to

       the jury.

[27]   Dr. Harris reexamined K.B. two weeks after the initial exam to determine

       whether the swollen appearance of K.B.’s hymen was the result of trauma.

       During the follow up examination, Dr. Harris observed that K.B.’s hymen

       appeared “flat and shiny” as she would “expect for a prepubertal child.” Tr. p.

       186. Therefore, the doctor concluded that the swollen appearance of K.B.’s

       hymen during the first exam was consistent with a “history of the trauma to

       that area.” Tr. p. 187. Dr. Harris also agreed that the “thickening or swelling of

       the hymen” indicated “that something actually came into contact” with it. Tr.

       p. 188. She also explained that in a prepubescent female, the “hymen is kind of

       tucked up inside the body” . . . [s]o, to get to the hymen the labia majora have

       to be separated . . . when the labia majora are in their normal position they are

       covering all those internal structures.” Tr. pp. 193-94. Finally, Dr. Harris

       testified that if “there is just contact with those labia majora there is no way to []

       then cause changes on the hymen.” Tr. p. 194.


[28]   Under these facts and circumstances, the evidence was sufficient to prove that

       Coleman used his finger to penetrate K.B.’s sex organ. We therefore affirm

       Coleman’s conviction for Class A felony child molesting.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016   Page 11 of 12
                                                  Conclusion

[29]   The trial court did not abuse its discretion when it gave the additional

       penetration instruction after the jury began deliberating. Also, the State

       presented sufficient evidence to sustain the jury’s guilty verdict on the Class A

       felony child molesting count. We therefore affirm Coleman’s conviction for

       Class A felony child molesting.


[30]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1507-CR-955 | March 8, 2016   Page 12 of 12
