MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 28 2017, 6:55 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
Karen Celestino-Horseman                                 Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Richardson,                                       June 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1609-CR-2196
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1211-FB-76505



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017        Page 1 of 9
                               Case Summary and Issues
[1]   Following a bench trial, Joseph Richardson was convicted of two counts of

      child molesting, one count as a Class B felony and the other as a Class C felony.

      Richardson appeals his convictions, raising two issues for our review, which we

      restate as: 1) whether the evidence is sufficient to sustain his convictions, and 2)

      whether his convictions violate the continuing crime doctrine. Concluding the

      evidence is sufficient and Richardson’s convictions do not violate the

      continuing crime doctrine, we affirm.



                            Facts and Procedural History
[2]   In early 2012, twelve-year-old J.W. and her cousin, M.M., visited J.W.’s close

      friend, M.H., at M.H.’s home. At some point, the trio went to eighteen-year-

      old Richardson’s home, who lived with his parents next door. Richardson

      provided alcohol to J.W. J.W. then began to feel ill and went outside.

      Richardson followed J.W. and suggested the pair go into the garage. As soon

      as they got into the garage, Richardson pulled J.W.’s pants down, but J.W. told

      him “no,” pulled her pants back up, and sat down on a couch in the garage

      where Richardson joined her. Transcript, Volume II at 14. Once seated,

      Richardson pulled down J.W.’s pants and underwear and digitally penetrated

      J.W.’s vagina. Richardson then stopped, took his pants and underwear off, and

      penetrated J.W.’s vagina with his penis. J.W. began crying, but did not tell

      Richardson to stop. Thereafter, Richardson returned to his house and J.W.

      returned to M.H.’s home. At some point, J.W. explained Richardson’s acts to

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017   Page 2 of 9
      M.M. and M.M. immediately told J.W.’s mother, Heidi Coburn, who called

      law enforcement. Law enforcement later interviewed Richardson. Before

      informing Richardson of J.W.’s allegations, the detective asked Richardson

      how old he believed J.W. was in early 2012. Richardson initially stated he

      believed J.W. was fourteen years old in early 2012, but later expressed

      uncertainty and claimed she may have been twelve or thirteen.


[3]   On November 8, 2012, the State charged Robinson with two counts of child

      molesting, one count as a Class B felony and the other as a Class C felony. At

      trial, J.W. testified to Richardson’s acts. J.W.’s mother also testified. Coburn

      explained she had previously interacted with Richardson at least ten times in

      early 2012. The following exchange then occurred:


              [State:] Did you have any concerns about the Defendant being
              around J.W.?
              [Coburn:] I know J.W. was in her preteens and she kind of
              flirted, and I made comments to, Stay away from my daughter.
              She’s only 12.
              [State:] Okay. So you made comments to Joseph Richardson to
              stay away from your daughter?
              [Coburn:] Yes, ma’am. Yes, ma’am.
              [State:] And you—
              [Coburn:] On numerous times.
              [State:] Okay. And did you specifically tell him her age?
              [Coburn:] Yes.
              [State:] Okay. Do you know how many times you had had
              those kind of conversations with him telling him to stay away
              because of how old she was?
              [Coburn:] Yes, ma’am.
              [State:] How many times?
              [Coburn:] Almost every time I seen him.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017   Page 3 of 9
      Id. at 34-55. Richardson also testified in his own defense, denying J.W.’s

      allegations and explaining he “always thought she was 14.” Id. at 53.

      Richardson was found guilty as charged and the trial court entered judgment of

      conviction on both counts. This appeal ensued.



                                 Discussion and Decision
                               I. Sufficiency of the Evidence
                                      A. Standard of Review
[4]   When reviewing the sufficiency of the evidence needed to support a criminal

      conviction, we neither reweigh the evidence nor judge witness

      credibility. Smart v. State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015). Rather, we

      consider only the evidence supporting the judgment and any reasonable

      inferences arising from such evidence. Id. We will affirm a conviction unless

      “no reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citation

      omitted).


                                 B. Reasonable Belief Defense
[5]   Richardson contends the evidence is insufficient to support his convictions.

      Specifically, he claims his testimony establishes he reasonably believed J.W.

      was at least fourteen years old. Child molesting is a Class B felony when a

      person performs or submits to sexual intercourse or deviate sexual conduct with

      a child under the age of fourteen. Ind. Code § 35-42-4-3(a) (2007). Child

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017   Page 4 of 9
      molesting is a Class C felony when a person performs or submits to any

      fondling or touching of a child under the age of fourteen with the intent to

      arouse or to satisfy the sexual desires of either the child or the person. Ind.

      Code § 35-42-4-3(b) (2007). It is a defense to both offenses that the accused

      reasonably believed the child was at least fourteen years old at the time of the

      conduct. Garcia v. State, 936 N.E.2d 361, 364 (Ind. Ct. App. 2010) (citing T.M.

      v. State, 804 N.E.2d 773, 774-75 (Ind. Ct. App. 2004)), trans. denied. “Such a

      defense admits all the elements of the crime but proves circumstances that

      excuse the defendant from culpability.” Weaver v. State, 845 N.E.2d 1066, 1069

      (Ind. Ct. App. 2006), trans. denied. In order to invoke the defense, Richardson

      must prove by a preponderance of the evidence that he reasonably believed

      J.W. was at least fourteen years old when he molested her. See id. (noting that

      when a defense addresses only culpability, the defendant’s burden is to prove

      the defense by a preponderance of evidence).


[6]   The evidence admitted at trial demonstrates J.W.’s mother told Richardson on

      numerous occasions prior to the acts of molestation that he needed to stay from

      J.W. because she was only twelve years old. In addition, prior to being told of

      J.W.’s allegations, Richardson expressed a lack of confidence in his knowledge

      of J.W.’s age, claiming to the detective he did not know her age and that J.W.

      may be twelve or thirteen years old. Therefore, Richardson’s argument that his

      testimony at trial established his reasonable belief J.W. was at least fourteen

      years old when he molested her is merely a request for this court to reweigh the

      evidence and reassess witness credibility, which we will not do. Smart, 40


      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017   Page 5 of 9
      N.E.3d at 966. We conclude Richardson did not prove his reasonable belief

      defense by a preponderance of evidence and the evidence is sufficient to support

      his convictions.


                             II. Continuing Crime Doctrine
[7]   Richardson contends his convictions violate the continuing crime doctrine.

      Specifically, he argues his acts of digitally penetrating J.W. and then performing

      intercourse were continuous acts constituting a single transaction. We disagree.


[8]   The continuing crime doctrine “reflects a category of Indiana’s prohibition

      against double jeopardy[,]” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App.

      2010), and “defines those instances where a defendant’s conduct amounts only

      to a single chargeable crime and prevents the State from charging a defendant

      twice for the same continuous offense[,]” Koch v. State, 952 N.E.2d 359, 373

      (Ind. Ct. App. 2011), trans. denied. Specifically, the doctrine “provides that

      actions that are sufficient in themselves to constitute separate criminal offenses

      may be so compressed in terms of time, place, singleness of purpose, and

      continuity of action as to constitute a single transaction.” Id.


[9]   In Firestone v. State, 838 N.E.2d 468 (Ind. Ct. App. 2005), S.W. invited Bradley

      Griffin and Clay Firestone to her home. After having a few drinks, Griffin

      playfully tossed S.W. on the bed and S.W. explained she did not want to have

      sex. As S.W. attempted to rise from the bed, Griffin pinned her down by

      placing his knees on her shoulders. Griffin then removed S.W.’s pants and

      underwear and forced S.W. to perform oral sex on him. As Griffin continued

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017   Page 6 of 9
       to force S.W. to perform oral sex, Firestone entered the bedroom and forced his

       penis inside S.W.’s vagina. Griffin and Firestone then switched places and

       Firestone pinned S.W. down and forced S.W. to perform oral sex on him.

       Firestone was later convicted of rape as a Class B felony and criminal deviate

       conduct as a Class B felony.


[10]   On appeal, Firestone contended his convictions violated the continuing crime

       doctrine, arguing his actions constituted a single transaction because both

       offenses occurred in a short period of time and in the same bedroom. We

       disagreed, noting,

               Firestone clearly committed two different offenses at different
               times. After he finished raping S.W., he took the time to switch
               places with Griffin by climbing on top of S.W. and shoving his
               penis in her mouth. The continuity of the actions does not
               negate the fact that they were completely different sexual acts
               committed at different times. It would be impossible for
               Firestone to have his penis inside S.W.’s vagina and in her
               mouth at the same time. Thus, because the rape was separate in
               time from the criminal deviate conduct, we cannot conclude that
               Firestone’s actions fall within the continuing crime doctrine.


       Id. at 472.


[11]   In Chavez v. State, 988 N.E.2d 1226 (Ind. Ct. App. 2013), trans. denied, Chavez

       was alone in a room with eight-year-old K.W. when he kissed K.W. on the

       mouth and inserted his tongue into her mouth. While kissing her, Chavez

       placed his hand on K.W.’s buttocks and breasts. Chavez then left the room, but

       later re-entered and a second encounter ensued. Chavez again kissed K.W. on

       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017   Page 7 of 9
       the mouth and inserted his tongue into her mouth. While kissing her, Chavez

       placed his hand on K.W.’s vagina, but outside her clothes. As to the first

       encounter, the State charged Chavez with three counts of child molesting as

       Class C felonies, citing the act of kissing J.W., touching her buttocks, and

       touching her breasts. As to the second encounter, the State charged Chavez

       with two counts of child molesting as Class C felonies, citing the act of kissing

       J.W. and touching her vagina outside her clothes. Chavez was convicted on all

       five counts.


[12]   On appeal, Chavez argued his convictions violated the continuing crime

       doctrine, contending his acts were continuous and amounted to one single

       chargeable crime. We concluded Chavez only committed two chargeable acts

       of child molesting, not five. As to the first encounter, we acknowledged Chavez

       committed three different acts, but concluded the acts of touching J.W.’s

       buttocks and breasts were done “[w]hile kissing” J.W., and therefore “[t]hose

       three acts were so compressed in terms of time, place, singleness of purpose,

       and continuity of action as to constitute a single transaction.” Id. at 1229

       (citations and internal quotation marks omitted). We applied the same logic

       and reasoning to the second encounter. See id. at 1229-30. Ultimately, the trial

       court was instructed on remand to vacate three of the five convictions.


[13]   Similar to Firestone, Richardson committed two different offenses at two

       different times. Richardson first pulled down J.W.’s pants and underwear and

       digitally penetrated J.W.’s vagina. Richardson then stopped and “took the

       time” to remove his pants and underwear. See Firestone, 838 N.E.2d at 472. He

       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017   Page 8 of 9
       then proceeded to insert his penis into J.W.’s vagina. And unlike the first and

       second encounters addressed in Chavez, Richardson did not commit one act

       “while” committing the other. See 988 N.E.2d at 1229. For these reasons, we

       conclude Richardson’s convictions do not violate the continuing crime

       doctrine.



                                               Conclusion
[14]   Richardson failed to satisfy his burden of proving he reasonably believed J.W.

       was at least fourteen years old when he molested her and we conclude the

       evidence is sufficient to sustain his convictions. We further conclude

       Richardson’s convictions do not violate the continuing crime doctrine.

       Accordingly, we affirm.


[15]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017   Page 9 of 9
