MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Aug 09 2018, 9:48 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Dixon,                                       August 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-303
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G06-1706-F1-21166



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018                    Page 1 of 9
[1]   Christopher Dixon appeals his convictions for five counts of Level 1 Felony

      Child Molesting.1 Dixon argues that there is insufficient evidence supporting

      one of the convictions and that the trial court gave an erroneous jury

      instruction. Finding sufficient evidence and no error, we affirm.


                                                     Facts
[2]   Between July 2015 and November 2016, then-eleven-year-old A.J. lived with

      her great aunt and Dixon, who was her aunt’s husband. During this time,

      Dixon molested A.J. multiple times. She testified to the following five

      occurrences:


            • Dixon asked A.J. to come into his bedroom to help him with a cell
              phone issue. He asked her to perform oral sex and she complied.

            • Once, late at night, Dixon and A.J. were in the family room when he
              demanded that she perform oral sex. She did so, and he then put
              Vaseline on his penis, took her clothes off, and—ignoring her saying
              “no”—rubbed his penis between her “butt cheeks.” Tr. Vol. III p. 2-3.

            • A third incident occurred when A.J. asked Dixon for chocolate cake. He
              said she could only have cake if she would perform oral sex. She
              complied.

            • Once, A.J. was sleeping on the couch in the family room late at night.
              Dixon woke her up and rubbed his penis between her “butt cheeks.” Id.
              at 6.

            • A fifth incident occurred in Dixon’s bedroom when he promised A.J.
              that he would talk to her aunt about A.J. having exclusive control of the



      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018   Page 2 of 9
               shared household computer if she would perform oral sex. She
               complied.

      A.J. eventually told other family members about the molestations. They

      notified the police.


[3]   On June 7, 2017, the State charged Dixon with five counts of Level 1 felony

      child molesting, one count of Level 4 felony child molesting, three counts of

      Level 5 felony child solicitation, and one count of Level 6 felony dissemination

      of matter harmful to minors. On January 23, 2018, after a two-day trial, the

      jury found Dixon guilty of five counts of Level 1 felony child molesting, one

      count of Level 4 felony child molesting, and one count of Level 5 felony child

      solicitation.2 The trial court found that the Level 4 and Level 5 felonies merged

      into the Level 1 felonies. Ultimately, the trial court sentenced Dixon to

      consecutive terms of thirty years for two of the Level 1 felonies and to

      concurrent terms of forty years on the other three Level 1 felonies, for an

      aggregate sixty-year sentence. Dixon now appeals.


                                     Discussion and Decision
                                                I. Sufficiency
[4]   Dixon first argues that the evidence is insufficient to support one of the Level 1

      felony child molesting convictions. When reviewing the sufficiency of the




      2
       The jury found Dixon not guilty of two of the child solicitation charges and the trial court dismissed the
      dissemination of matter harmful to minors charge.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018                       Page 3 of 9
      evidence to support a conviction, we must consider only the probative evidence

      and reasonable inferences supporting the conviction and will neither assess

      witness credibility nor reweigh the evidence. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). We will affirm unless no reasonable factfinder could find the

      elements of the crime proved beyond a reasonable doubt. Id.


[5]   Dixon argues, essentially, that the evidence does not support a conclusion that

      the first and fifth incidents set forth above were different incidents. Instead, he

      argues that the only possible conclusion is that they were the same incident.

      With respect to the first incident, A.J. testified as follows:


              Answer:          [Dixon] had walked in and he claimed, he said he
                               needed help with his phone. And I usually helped
                               him with his phone. So I went to his room to help
                               him, well, I thought I was going to help him with
                               his phone.


                                                       ***


              Question:        So what happened after you got to his room?


                                                       ***


              Answer:          Okay. So we had this computer—And I’m telling it
                               like what happened. We had this computer and it
                               was a gray computer and so when we get to his
                               room to help him with his phone that’s when I was
                               asked to suck his penis.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018   Page 4 of 9
Tr. Vol. II p. 246-47. With respect to the fifth incident, the following discussion

occurred:


        Question:        You mentioned something about a computer
                         previously?


        Answer:          Yes.


        Question:        Can you tell me what happened with the computer?


        Answer:          He had went up—Like what happened after—


        Question:        No. No. Sorry. You said one of the instances
                         involved a computer?


        Answer:          Yes. And you want to know what happened
                         before?


        Question:        I want to know what did he say about the
                         computer?


                                                 ***


        Answer:          He just told me he was going to [A.J.’s aunt] and
                         ask if I could have it for myself.


        Question:        Now did he want you to do anything in exchange
                         for the computer?


        Answer:          Yes.


                                                 ***
Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018   Page 5 of 9
              Question:        What did he want you to do in exchange for a
                               computer?


              Answer:          Suck his penis.


      Tr. Vol. III p. 40-41.


[6]   Dixon contends that because A.J. referred to a computer in her description of

      the first incident, the only possible conclusion is that the first and fifth incidents

      are the same. We disagree. It is readily apparent that the first incident revolved

      around Dixon’s claim of cell phone issues. At no point in describing the fifth

      incident did A.J. refer to a cell phone. Instead, the fifth incident revolved

      around bribery for the exclusive use of the household computer. And although

      A.J. briefly referred to the presence of a computer when describing the first

      incident, at no point did she mention any bribery related to that computer. We

      agree with the State that at most, the evidence presented a factual dispute to be

      resolved by the jury. Dixon’s argument to the contrary requires us to reweigh

      the evidence, which we may not do. We find the evidence sufficient to support

      each of these convictions.


                                        II. Jury Instruction
[7]   Dixon next argues that the trial court gave an erroneous jury instruction. When

      evaluating jury instructions on appeal, we look to whether the tendered

      instruction correctly stated the law, whether there is evidence in the record to

      support giving the instruction, and whether the substance of the proffered

      instruction is covered by other instructions. Treadway v. State, 924 N.E.2d 621,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018   Page 6 of 9
      636 (Ind. 2010). We will reverse only if the instructional error prejudiced the

      defendant’s substantial rights. Id.


[8]   To address concerns regarding jury unanimity, the trial court provided the

      following instruction:


              The Defendant, Christopher Dixon, is accused of being at least
              21 years of age and of having performed or submitted to other
              sexual conduct against [A.J.], a child under the age of 14 years
              old.


              The State has presented evidence that the defendant may have
              committed more than one act of child molesting against [A.J.]
              during an unspecified general time period. Before you may find
              the defendant guilty of any count, you must all unanimously find
              and agree the State has proven beyond a reasonable doubt each
              element of that count as previously given to you. You may not
              combine or mix the events together to reach a single verdict.
              Each count must be considered separately, individually, and
              must be proven unanimously before you can convict.


              Specifically, you must find:


              AS TO COUNT 1:

              That the defendant committed the act of child molesting against
              [A.J.] involving having performed or submitted to other sexual
              conduct against [A.J.] for the first time in the defendant’s
              bedroom.


              AS TO COUNT 2:

              That the defendant committed the act of child molesting against
              [A.J.] involving having performed or submitted to other sexual

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018   Page 7 of 9
              conduct against [A.J.] in the family room where [A.J.] and the
              defendant were the only ones present.


              AS TO COUNT 3:

              That the defendant committed the act of child molesting against
              [A.J.] involving having performed or submitted to other sexual
              conduct against [A.J.] at or near the time of a birthday party.


              AS TO COUNT 4:

              That the defendant committed the act of child molesting against
              [A.J.] involving having performed or submitted to other sexual
              conduct against [A.J.] involving discussions about a computer.


              AS TO COUNT 5:

              That the defendant committed the act of child molesting against
              [A.J.] involving having performed or submitted to other sexual
              conduct against [A.J.] in the family room where Tyshawn and
              [A.J.]’s cousin were sleeping.


      Appellant’s App. Vol. II p. 149-51. Dixon argues that this instruction confused

      the jury because there is no factual basis for both Count 1 and Count 4; the

      foundation for this argument is the same contention he raised regarding

      sufficiency of the evidence.


[9]   Initially, we note that Dixon has waived this argument for two reasons. First,

      he failed to tender his own proposed jury instruction on the issue. See, e.g.,

      Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011) (holding that a failure to

      tender an instruction results in waiver of the issue for review). Second, while he

      objected to the instruction, he offered a different argument to the trial court

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018   Page 8 of 9
       than he offers on appeal. See, e.g., Jenkins v. State, 34 N.E.3d 258, 263 (Ind. Ct.

       App. 2015) (appellant waives argument if he made one argument to the trial

       court and presents a different one on appeal), trans. denied.


[10]   Waiver notwithstanding, we do not find Dixon’s argument to be persuasive. As

       noted above, we found the evidence sufficient to support Dixon’s convictions

       for both incidents, so we disagree that the instruction is confusing because of a

       lack of factual basis for both molestations. Nor do we find the instruction as a

       whole confusing or misleading in any way. We agree with the State that the

       instruction provided the jury with helpful direction and guidance as to what,

       specifically, it had to find to render a guilty verdict for each count. The trial

       court’s decision to give this jury instruction was not erroneous.


[11]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-303 | August 9, 2018   Page 9 of 9
