MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Apr 16 2020, 8:49 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General
                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

J.A.,                                                     April 16, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-JV-2350
        v.                                                Appeal from the
                                                          Marion Superior Court
State of Indiana,                                         The Honorable
Appellee-Petitioner                                       Marilyn Moores, Judge
                                                          The Honorable
                                                          Geoffrey Gaither, Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1902-JD-213



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-2350 | April 16, 2020                   Page 1 of 8
                                           Case Summary
[1]   J.A. appeals his adjudication as a juvenile delinquent based on the juvenile

      court’s finding that he committed acts that would be Level 3 felony child

      molesting and Level 4 felony child molesting if committed by an adult. He

      argues that the evidence is insufficient. Because we find the evidence is

      sufficient, we affirm.



                             Facts and Procedural History
[2]   On Thanksgiving Day in 2018, eight-year-old E.T. went to his uncle’s house to

      celebrate. When E.T. arrived, he saw that his eleven-year-old nephew, J.A.,

      was there too. Although E.T. was younger than J.A., E.T. was J.A.’s uncle.

      After the family finished eating Thanksgiving dinner, E.T. and J.A. went

      outside to play.

[3]   After playing outside, J.A. went with E.T., E.T.’s mother, and E.T.’s

      grandmother to a nearby CVS to rent some movies from Redbox. While E.T.’s

      mother and grandmother were out of the car looking for movies, J.A. used his

      phone to show E.T. some “bad videos, porn or something.” Tr. p. 14. When

      E.T.’s mother and grandmother returned to the car, J.A. turned off the videos,

      and the family drove to E.T.’s house.

[4]   At E.T.’s house, J.A., E.T., and E.T.’s mother went to E.T.’s bedroom and

      watched the first movie and began watching the second. During the second

      movie, E.T.’s mother left and went to the basement to wash clothes. E.T.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2350 | April 16, 2020   Page 2 of 8
      turned on his bedroom light and began playing with his new cowboy toys. J.A.

      then turned to E.T. and asked, “can we have sex?” Id. at 16. E.T. said “no,”

      but J.A. “just keep askin’.” Id. at 17. E.T. then left and went into the living

      room. E.T.’s mother found him in the living room and told him to go back into

      his bedroom. E.T.’s mother went with E.T. to his bedroom and stayed to

      watch more of the second movie with E.T. and J.A., but eventually she turned

      off the bedroom light and left.


[5]   Once E.T.’s mother was gone, J.A. “started asking [to have sex] again.” Id. at

      18. Eventually, E.T. said “yeah.” Id. E.T. and J.A. kept their clothes on but

      pulled their pants down about “an inch” below their “butt.” Id. at 20. E.T.

      would later testify that they then started “having sex.” Id. at 19. At some

      point, E.T.’s penis was touching J.A.’s “butt,” and at another point, J.A.’s

      penis was touching E.T.’s “butt.” See id. at 20. E.T. also recalled that while

      they were having sex, J.A. “put his penis in [E.T.’s] bottom” and that E.T.’s

      “bottom hurt” “a little bit.” Id. at 21-23.


[6]   At some point, E.T.’s mother returned to E.T.’s bedroom and saw what was

      happening. J.A. rolled off the bed and then E.T.’s mother “started whooping

      both [E.T. and J.A.].” Id. at 19. E.T.’s brother, who had been upstairs,

      overheard what was going on, came downstairs, and “started whooping [J.A.]”

      Id. at 23. E.T.’s mother called J.A.’s mother. When J.A.’s mother arrived, she

      had a “rubber bat” and beat J.A. Id. at 23. J.A.’s mother told J.A. to say that

      he was sorry, which he did, and then J.A. and his mother left. See id. at 24.



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2350 | April 16, 2020   Page 3 of 8
[7]   E.T.’s mother then took E.T. to Riley Hospital for Children to be evaluated.

      See Appellant’s App. Vol. II p. 15. A social worker at Riley contacted the

      Department of Child Services to report “a child molest.” Id. Three days later,

      E.T. was interviewed by a forensic child interviewer. After that interview, the

      case was assigned to an IMPD detective. The detective interviewed E.T.’s

      mother, who said that when she returned to E.T.’s bedroom, “she saw [J.A.’s]

      naked butt and [E.T.] pulling his pants up.” Id. at 16. E.T.’s mother told the

      detective that when she asked E.T. what was going on, E.T. said “[J.A.] put his

      penis in my butt.” Id. The detective also interviewed J.A.’s mother, who said

      that when she arrived at E.T.’s house, J.A. “told her that he saw something on

      TV and he was curious. He had talked about it with [E.T.] and told [E.T.] to

      pull his pants down.” Id. J.A.’s mother told the detective that J.A. said that

      “he couldn’t get his penis into [E.T.’s] butt, so they were just ‘humping.’” Id. at

      16-17. J.A.’s mother also allowed the detective to interview J.A. J.A. told the

      detective that he “saw a commercial of two men in bed together and a late night

      movie of two men having sex over a desk” and that he was “curious and

      wanted to try it because the look on the men’s faces made it look like they were

      having fun.” Id. at 17. J.A. also told the detective that he “tried to put his penis

      in [E.T.’s] butt,” but he didn’t “think his penis went inside [E.T.’s] butt.” Id.

      J.A. said to the detective that he “regrets what he did and wishe[d] that he

      could take it back.” Id.


[8]   In February 2019, the State filed a petition alleging J.A. to be a delinquent child

      for committing two counts of child molesting, one for performing or submitting

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-2350 | April 16, 2020   Page 4 of 8
       to an act involving J.A.’s penis and E.T.’s anus (a Level 3 felony if committed

       by an adult) and one for touching or fondling (a Level 4 felony if committed by

       an adult). Id. at 18. After the fact-finding hearing, where E.T. and the detective

       both testified, the juvenile court entered a true finding on each count. In

       September 2019, the juvenile court held a dispositional hearing and ordered that

       J.A. be placed on probation. Some of the conditions of his probation included

       that J.A. complete a psycho-sexual education program and that J.A. have no

       contact with E.T.

[9]    J.A. now appeals.



                                  Discussion and Decision
[10]   J.A. contends that the evidence is insufficient to support the juvenile court’s

       true findings. When reviewing whether the State’s evidence was sufficient to

       meet its burden, our standard is familiar. D.P. v. State, 80 N.E.3d 913, 915 (Ind.

       Ct. App. 2017). 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 credibility. Id. We will affirm unless no

       reasonable fact-finder could have found the elements of the crime proven

       beyond a reasonable doubt. Id.


[11]   J.A. first contends that the evidence is insufficient to support a true finding for

       Level 3 felony child molesting if committed by an adult. To sustain the true

       finding that J.A. committed an act that would constitute Level 3 felony child


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2350 | April 16, 2020   Page 5 of 8
       molesting if committed by an adult, the State was required to prove beyond a

       reasonable doubt that J.A., with a child under fourteen years of age, E.T.,

       knowingly or intentionally performed or submitted to sexual intercourse or

       other sexual conduct. Ind. Code § 35-42-4-3(a); Appellant’s App. Vol. II p. 18.

       Indiana Code section 35-31.5-2-221.5 defines “other sexual conduct” as “an act

       involving: (1) a sex organ of one (1) person and the mouth or anus of another

       person; or (2) the penetration of the sex organ or anus of a person by an object.”

       The State is not required to introduce evidence of penetration to establish

       “other sexual conduct.” See Wisneskey v. State, 736 N.E.2d 763, 764 (Ind. Ct.

       App. 2000) (“other sexual conduct” was formerly “deviate sexual conduct,” but

       the definition remains the same). Instead, the State need only establish that the

       delinquent committed a sex act with his penis involving the child’s anus. See id.


[12]   J.A. argues that the State’s evidence only shows that “J.A. rubbed his penis

       against E.T.’s buttocks” and that “[t]here is no additional evidence that

       demonstrates, beyond a reasonable doubt, that J.A.’s penis came into contact

       with E.T.’s anus.” Appellant’s Br. p. 9. We disagree. E.T. testified that J.A.

       “put his penis in [his] bottom.” Tr. pp. 21-22. E.T. also said that it hurt “a

       little bit” when J.A. did so. Id. at 21. Moreover, as the State points out, the

       evidence shows “that contact with E.T.’s anus was what J.A. intended to

       accomplish because J.A. was attempting to replicate what he saw in a

       pornographic video.” Appellee’s Br. p. 12; see also Tr. p. 17. This is all

       sufficient evidence for the juvenile court to find that J.A.’s penis made contact

       with E.T.’s anus.


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2350 | April 16, 2020   Page 6 of 8
[13]   J.A. next asserts that the evidence is insufficient to support a true finding for

       Level 4 felony child molesting if committed by an adult. To sustain the true

       finding that J.A. 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 J.A., with a child under fourteen years of age, E.T.,

       performed or submitted to fondling or touching with the intent to arouse or

       satisfy the sexual desires of either E.T. or himself. Ind. Code § 35-42-4-3(b);

       Appellant’s App. Vol. II p. 18. We have held that it is unreasonable to infer

       intent to satisfy or arouse sexual desires 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. D.P., 80

       N.E.3d at 916. Accordingly, we said that other circumstances must be present

       that indicate such intent. Id.


[14]   J.A. argues that the State failed to establish “that J.A.’s actions were

       undertaken with the specific intent to satisfy either his or E.T.’s sexual desires.”

       Appellant’s Br. p. 12. Instead, J.A. claims that the evidence shows that J.A.

       “was acting out something he was curious about and that he thought was fun”

       and that “[t]here’s nothing in the record to suggest [J.A.] even had sexual

       desires.” Id. We disagree. The circumstantial evidence is sufficient to establish

       that J.A. touched E.T. with the intent to arose or satisfy his or E.T.’s sexual

       desires. First, the ages of the children are relevant. See T.G. v. State, 3 N.E.3d

       19, 25 (Ind. Ct. App. 2014), trans. denied. J.A. was eleven years old and older

       than E.T., who was eight. The purpose of the child-molesting statute “is to


       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2350 | April 16, 2020   Page 7 of 8
       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.” Id. Although a three-year age difference is not huge, the evidence

       shows that J.A. had superior knowledge—demonstrated by his ability to access

       pornographic videos with his cell phone—and was in a position to take

       advantage of E.T.’s naivety as E.T.’s older family member. Second, J.A.

       showed E.T. pornographic videos before repeatedly asking E.T. to have sex.

       Third, J.A. told the detective that he “saw a commercial of two men in bed

       together and a late night movie of two men having sex over a desk” and that he

       was “curious and wanted to try it because the look on the men’s faces made it

       look like they were having fun.” Tr. p. 17. Fourth, J.A. told the detective that

       he “tried to put his penis in [E.T.’s] butt,” but he didn’t “think his penis went

       inside [E.T.’s] butt.” Id. Fifth, J.A.’s mother told the detective that J.A. said

       that “he couldn’t get his penis into [E.T.’s] butt, so they were just ‘humping.’”

       Id. at 16-17. Given all these circumstances, a reasonable fact-finder could find

       beyond a reasonable doubt that J.A. touched or fondled E.T. with the intent to

       arouse or satisfy his or E.T.’s sexual desires. Accordingly, we affirm the

       juvenile court’s delinquency adjudication.

[15]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-2350 | April 16, 2020   Page 8 of 8
