MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Feb 17 2015, 9:50 am
Memorandum Decision shall not be 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
John C. Bohdan                                           Gregory F. Zoeller
Allen County Public Defender’s Office                    Attorney General of Indiana
Fort Wayne, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Htar Kyoo,                                               February 17, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1405-CR-149
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,
                                                         The Honorable John F. Surbeck, Jr.,
Appellee-Plaintiff.                                      Judge

                                                         Cause No. 02D05-1309-FB-158




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1405-CR-149 |February 17, 2015     Page 1 of 4
[1]   Htar Kyoo (“Kyoo”) appeals his conviction of rape as a Class B felony.1 He

      presents one issue on appeal: whether the evidence presented at trial was

      sufficient to sustain his conviction.


[2]   We affirm.


                                       Facts and Procedural History
[3]   Kyoo, his wife, and his children lived in a two-bedroom home in Fort Wayne,

      Indiana with two other families. Most of the home’s occupants slept

      communally on the floor of the living room. Kyoo, on the other hand, slept on

      a mattress in the basement. Except for those occasions when he asked his wife

      to join him in the basement, he slept there alone. On September 6, 2013, N.M.,

      Kyoo’s fifteen-year-old daughter decided to sleep in the basement. When Kyoo

      returned home from work late that night, his wife informed him his daughter

      was asleep downstairs, so Kyoo joined his wife and slept in the living room.


[4]   The following night, N.M. again decided to sleep in the basement. Kyoo

      returned home late that night, drank either two or three beers, and went down

      to the basement to go to sleep. Kyoo got into bed with his sleeping daughter

      and began to fondle and caress her and ultimately began to have vaginal

      intercourse with her. N.M. woke up with Kyoo on top of her and his penis

      inside her vagina. She pushed him off of her and fled upstairs. Kyoo followed




      1
          See Ind. Code § 35-42-4-1.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1405-CR-149 |February 17, 2015   Page 2 of 4
      and returned with his wife (and N.M.’s mother) to the basement to have

      intercourse. The following morning, N.M. told her mother what happened and

      used her mother’s phone to call the police. Kyoo was taken into custody later

      that day.


[5]   The State charged Kyoo with rape as a Class B felony, sexual misconduct with

      a minor as a Class B felony, and sexual misconduct with a minor as a Class C

      felony. At trial, Kyoo raised the defense of mistake of fact, alleging that he

      believed the woman he was having sex with was his wife, not his daughter.

      After having been instructed on mistake of fact, the jury found Kyoo guilty on

      all counts. At sentencing, the court merged the other two charges with the rape

      charge. Kyoo now appeals his conviction.


                                     Discussion and Decision
[6]   When a defendant claims that the evidence presented at trial was insufficient to

      support a conviction, we neither reweigh the evidence nor judge the credibility

      of the witnesses; rather, we examine only the evidence most favorable to the

      judgment, together with all of the reasonable and logical inferences to be drawn

      therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct. App. 2010), trans.

      denied. A conviction may be sustained based on circumstantial evidence alone

      if that circumstantial evidence supports a reasonable inference of guilt. Maul v.

      State, 731 N.E.2d 438, 439 (Ind. 2000). We do not reweigh the evidence, and

      we consider conflicting evidence most favorable to the trial court's ruling.

      Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1405-CR-149 |February 17, 2015   Page 3 of 4
[7]   Kyoo argues that the State did not present sufficient evidence to establish that

      he knew he was having sexual intercourse with his daughter. At trial, the State

      presented evidence that: (1) N.M. had slept in the basement the night before,

      Tr. at 139; (2) there was sufficient ambient light in the basement to see clearly,

      Tr. at 147; and (3) Kyoo had made prior inconsistent statements regarding the

      events on the night in question, Tr. at 252. From this evidence and the

      reasonable inferences therefrom, a jury could reasonably believe N.M.’s

      testimony over Kyoo’s testimony and, therefore, conclude beyond a reasonable

      doubt that Kyoo knew he was sleeping with his daughter. Any argument that

      Kyoo’s testimony ought to be believed over N.M.’s would amount to asking us

      to reweigh the evidence, which we may not do. We conclude that the evidence

      presented at trial was sufficient to support Kyoo’s conviction.


      Affirmed.


      Friedlander, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1405-CR-149 |February 17, 2015   Page 4 of 4
