                                                                              Jul 24 2013, 6:27 am
 Pursuant to Ind. Appellate Rule 65(D),
 this 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:

BETH McFADIN HIGGINS                                GREGORY F. ZOELLER
McFadin Higgins & Folz, LLP                         Attorney General of Indiana
Mt. Vernon, Indiana
                                                    JUSTIN F. ROEBEL
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL SIMPSON,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
           vs.                                      )      No. 65A04-1210-CR-555
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )

                       APPEAL FROM THE POSEY CIRCUIT COURT
                          The Honorable James M. Redwine, Judge
                              Cause No. 65C01-1109-FC-446



                                          July 24, 2013

             MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge



                                                1
       Michael Simpson (“Simpson”) was convicted in Posey Circuit Court of Class C

felony child molesting. Simpson appeals and argues: (1) that the trial court erred in its

instruction to the jury on the legal effect of voluntary intoxication and (2) that the

evidence is insufficient to support his conviction for child molesting.

       We affirm.

                              Facts and Procedural History

       Simpson is the paternal uncle of I.D.S. On Friday, March 25, 2011, eight-year-old

I.D.S. visited with her father, Timothy Simpson (“Father”), and younger sister, V.S., at a

mobile home occupied by Simpson in Posey County, Indiana. I.D.S.’s mother and father

are divorced.

       Simpson, Father, I.D.S., and V.S. spent the evening of March 25 eating pizza for

dinner and watching movies in the living room of Simpson’s mobile home. Over the

course of the evening, Simpson consumed six to twelve beers and one mixed drink.

Father was the first of the group to leave the living room and go to sleep in the bedroom

adjacent to the living room. He slept until 10 a.m. the following morning. Shortly after

Father retired, Simpson put V.S. to bed with Father, where she remained for the rest of

the night.

       On Simpson’s suggestion, I.D.S. went to bed in Simpson’s bedroom, which was

located at the end of the mobile home opposite the living room and the bedroom in which

Father and V.S. slept. Simpson joined her. I.D.S. was clothed and Simpson wore only

boxer shorts. Instead of going to sleep immediately, I.D.S. and Simpson reclined on the

bed and watched a movie on the television located in that bedroom.


                                             2
       Shortly after they began the movie, Simpson reached underneath I.D.S.’s shirt and

unfastened her bra in the back. I.D.S. told Simpson to refasten the bra, which he did.

Simpson then placed his hand on I.D.S.’s breast, over her clothing and “rubbed” her

breast for “[m]aybe a minute.” Tr. pp. 86-87. I.D.S. told Simpson to stop. After that,

Simpson “rubbed over [her] vagina” for “[m]aybe fifty seconds.” Tr. pp. 87-88. Again,

I.D.S. told Simpson to stop and to stay on his side of the bed. Simpson responded,

“[t]hat’s very hard.” Tr. p. 88. At some point, Simpson asked I.D.S. to remove her

clothing and she refused. Eventually, Simpson fell asleep. I.D.S. “made sure he went to

sleep before [she] went to sleep.” Tr. p. 88. I.D.S. woke around noon the next day,

Saturday, March 26.     She, her sister, and her father left the mobile home shortly

thereafter.

       When I.D.S. returned to her mother’s house Sunday evening, she reported the

incident to her mother. As she described the touching, I.D.S. was crying and shaking.

I.D.S.’s mother called the Department of Child Services, who arranged for I.D.S. to be

interviewed by a child forensic interviewer at Holly’s House, a child advocacy center.

The interviewer observed that I.D.S. did not appear to have been coached to make any

statement other than one based on her own memory.

       On April 8, 2011, Indiana State Police troopers interviewed Simpson. Simpson

reported to the police interrogating him that he had been drinking heavily the night of the

touching and that he was “sure [his] faculties were clouded.” Appellant’s App. p. 135.

Simpson told the officers that he remembered going into the bedroom, he remembered

I.D.S. going into the bedroom with him, and he remembered the two of them getting into


                                            3
bed. He also remembered watching the movie Ghost on the bedroom television. He said

that he “vaguely remember[ed]” I.D.S. asking him to rub her back. Id. He stated that he

did not remember unfastening I.D.S.’s bra or putting his hand on I.D.S.’s vagina.

Simpson admitted that he might have committed the touching “by accident, perhaps, or in

my sleep perhaps[.]” Id. at 136.

       On September 1, 2011, a grand jury indicted Simpson for child molestation.

Simpson pleaded not guilty. During the two-day August 2012 jury trial in the Posey

Circuit Court, the State tendered Indiana Pattern Jury Instruction 10.09, which reads,

“[v]oluntary intoxication is not a defense to the charge of Child Molesting. You may not

take voluntary intoxication into consideration in determining whether Mr. Simpson acted

knowingly or intentionally as alleged in the charge.” Tr. p. 119. Simpson objected to the

voluntary intoxication instruction, arguing that it impermissibly constrained the jury’s

right to judge the law and facts, unlawfully lessened the State’s burden of proof, and

violated Simpson’s right to bring a defense on the intent element of the charged crime.

Over Simpson’s objection, the trial court granted the State’s jury instruction request and

delivered the voluntary intoxication instruction to the jury. The jury found Simpson to be

guilty as charged.

       Simpson now appeals and seeks reversal of his conviction.

                             I. Tendered Jury Instruction

       Simpson argues that the trial court abused its discretion in its instruction to the

jury regarding voluntary intoxication.    Specifically, Simpson contends that the trial

court’s jury instruction on voluntary intoxication violated Article 1, Section 19 of the


                                            4
Indiana Constitution 1 because the instruction impermissibly restricted the jury’s

discretion to consider evidence of voluntary intoxication and its effect on the requisite

mens rea of the charged crime.

                                                      The purpose of a jury 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.” Wilson v. State, 842 N.E.2d 443, 445 (Ind. Ct.

App. 2006) (quoting Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003)). Instruction

of the jury generally lies “within the trial court’s sound discretion” and we review the

trial court’s giving of a tendered instruction for abuse of discretion. Huls v. State, 971

N.E.2d 739, 745 (Ind. Ct. App. 2012), trans. denied.

                                                      When we review a trial court’s decision to give a tendered jury instruction, we

consider “(1) whether the instruction correctly states the law; (2) whether there is

evidence in the record to support the giving of the instruction; and (3) whether the

substance of the tendered instruction is covered by other instructions that are given.” Id.

Unless an instruction is erroneous, misstates the law, or misleads the jury, we will find no

abuse of discretion. O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012).

                                                      Indiana’s voluntary intoxication statute provides that “[i]ntoxication is not a

defense in a prosecution for an offense and may not be taken into consideration in

determining the existence of a mental state that is an element of the offense[.]” Ind. Code

§ 35-41-2-5.                                                                                                                    Simpson claims that the phrase “taken into consideration” prohibits

consideration of evidence of intoxication only where the defendant raises a specific
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
  Article 1, Section 9 of the Indiana Constitution reads, “[i]n all criminal cases whatever, the jury shall
have the right to determine the law and the facts.”

                                                                                                                                                                                                                                   5
defense of voluntary intoxication. He argues that the instruction to disregard evidence of

intoxication when determining whether the touching was knowing or intentional is “to

prejudice [his] substantial rights[.]” Appellant’s Br. at 7.

       We do not find this argument persuasive. Our supreme court directly addressed

the issue in Sanchez v. State, where it held:

       The voluntary intoxication instruction does not unconstitutionally compel
       the jury to make a finding of intent. In effect, it provides that the crime is
       committed if it is done with the requisite mens rea or as a result of
       voluntary intoxication. This statutory scheme does not violate either the
       federal constitution or the jury's ability to determine “the law and the
       facts.”

Sanchez v. State, 749 N.E.2d 509, 521 (Ind. 2001) (quoting Ind. Const. art. 1, § 19).

       In other words, even where intoxication renders a criminal act involuntary, Indiana

statute provides that voluntary intoxication itself “supplies the general requirement of a

voluntary act.” Schlatter v. State, 891 N.E.2d 1139, 1143 (Ind. Ct. App. 2008) (quoting

Sanchez, 749 N.E.2d at 517).        Thus, a jury instruction that forbids the jury from

considering evidence of voluntary intoxication when determining whether a crime’s mens

rea requirement is met is constitutionally permissible.

       Indiana Code section 35-41-2-5 “does not necessarily proscribe [all] evidence of

the defendant’s use of alcohol or drugs.” Sanchez v. State, 749 N.E.2d at 519-20. Such

evidence “may be admissible as general background, or as relevant to something other

than lack of mens rea, e.g., identity.” Id. Here, the jury instruction at issue did not

prohibit the jury from considering evidence of Simpson’s intoxication for all purposes. It

merely instructed that the jury could not consider evidence of the defendant’s intoxication



                                                6
when determining “whether Mr. Simpson acted knowingly or intentionally.” 2 This

instruction is consistent with Indiana Code section 35-41-2-5, the Indiana Supreme

Court’s holding in Sanchez, and Article 1, Section 19 of the Indiana Constitution. Thus,

the trial court did not abuse its discretion in delivering the instruction.

                                                                                                                                                                                                                                    II. Sufficiency of Evidence

                                                      Simpson also argues that the evidence presented at trial was insufficient to support

his conviction for child molestation. Our standard of review for sufficiency claims is

well settled. We neither reweigh the evidence nor assess the credibility of witnesses.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Instead, we look to the evidence and

the reasonable inferences that may be drawn from it that support the verdict. Boggs v.

State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. The verdict will not be

disturbed so long as there is substantial evidence of probative value that sustains it.

Cutler v. State, 983 N.E.2d 217, 221 (Ind. Ct. App. 2013).

                                                      To convict Simpson of child molestation, the State was required to prove that

Simpson fondled or touched I.D.S., a child under fourteen years of age, with the intent to

“arouse                                                                           or                                     to                                   satisfy                                                              the   sexual   desires”   of   either   I.D.S.   or   himself.

Ind. Code § 35-42-4-3. Simpson argues that the evidence was insufficient to establish

that he touched I.D.S. with the intent to arouse or satisfy sexual desires. He points to

I.D.S.’s testimony that, on the night of the touching, Simpson did not remove his

clothing, did not reveal his genitals, and was not “doing anything strange to his body.”

Tr. pp. 104, 107.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
  The jury was instructed, “[v]oluntary intoxication is not a defense to the charge of Child Molesting.
You may not take voluntary intoxication into consideration in determining whether Mr. Simpson acted
knowingly or intentionally as alleged in the charge.” Tr. p. 119; Appellant’s App. p. 77.
                                                                                                                                                                                                                                                  7
       Simpson further notes that “[m]ere touching alone is not sufficient to constitute the

crime of child molesting.” Appellant’s Br. at 9 (citing Kanady v. State, 810 N.E.2d 1068

(Ind. Ct. App. 2004)). He also points to Markiton v. State, where our supreme court

found that evidence of the defendant’s casual, innocent, and playful contact with a child’s

breast while tucking the child into bed was insufficient to prove intent to arouse or satisfy

sexual desires. 236 Ind. 232, 235, 139 N.E.2d 440, 441 (1957).

       Intent to molest may be established by circumstantial evidence and may be

inferred from the defendant’s conduct and “the natural and usual sequence to which such

conduct usually points.” Davis v. State, 956 N.E.2d 726, 730 (Ind. Ct. App. 2011) trans.

denied (quoting Pedrick v. State, 593 N.E.2d 1213, 1220 (Ind. Ct. App. 1992)). For

example, this court has found sufficient evidence of child molestation where the

defendant, a physical education teacher, rubbed minor students’ breasts during class

activities and placed his hand on one student’s lower abdomen, and also where the

defendant touched a different student’s breasts over her t-shirt eight to twelve times.

Pedrick, 593 N.E.2d at 1220; Cruz Angeles v. State, 751 N.E.2d 790, 798 (Ind. Ct. App.

2001). In this regard, it is important to remember that a minor victim’s uncorroborated

testimony is sufficient to sustain a conviction of child molesting. Feyka v. State, 972

N.E.2d 387, 393 (Ind. Ct. App. 2012) trans. denied.

       The evidence before us is distinguishable from that in Markiton, where the court

found that the contact at issue was too ambiguous to justify an inference of intent to

arouse or satisfy sexual desires. Here, as in Pedrick and Cruz Angeles, evidence of

Simpson’s conduct supports an inference that he touched I.D.S. with intent to arouse or


                                             8
satisfy sexual desires. I.D.S. testified that Simpson unfastened her bra, rubbed her breasts

over her clothing for nearly a minute, placed his hand on her vagina over her clothing for

nearly a minute, and asked her to remove her clothing. This contact was unambiguous.

This testimony and the attendant facts and circumstances sufficiently support Simpson’s

conviction for child molesting.

                                         Conclusion

       The trial court did not abuse its discretion in its instruction to the jury on the legal

effect of Simpson’s voluntary intoxication. The State also presented sufficient evidence

to prove that Simpson touched a child under fourteen years of age with the intent to

arouse or to satisfy the sexual desires of either the child or himself.

       Affirmed.

BAKER, J., and MAY, J., concur.




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