 Pursuant to Ind.Appellate Rule 65(D),                           Aug 14 2013, 5:33 am
 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:

LEANNA WEISSMANN                                      GREGORY F. ZOELLER
Lawrenceburg, Indiana                                 Attorney General of Indiana

                                                      MICHAEL GENE WORDEN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JESSE DOYLE, JR.,                                     )
                                                      )
       Appellant-Defendant,                           )
                                                      )
               vs.                                    )      No. 15A05-1301-CR-39
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                     APPEAL FROM THE DEARBORN CIRCUIT COURT
                         The Honorable James D. Humphrey, Judge
                              Cause No. 15C01-1105-FA-10


                                           August 14, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Jesse Doyle, Jr., was convicted of Class A felony attempted child molesting, two

counts of Class A felony child molesting while armed with a deadly weapon, and Class C

felony intimidation with a deadly weapon. During sentencing, his two child-molesting

convictions were merged with his attempted child-molesting conviction to remedy a

double-jeopardy violation. Doyle contends that this was done in error, and his two child-

molesting convictions should have been vacated instead of merged. Doyle also contends

that there is insufficient evidence to sustain his attempted child-molesting conviction and

his two child-molesting convictions.      The State concedes that Doyle’s two child-

molesting convictions should have been vacated and we find that there is sufficient

evidence to sustain Doyle’s attempted child-molesting conviction, so we affirm in part

and reverse in part.

                             Facts and Procedural History

       On April 29, 2011, forty-seven-year-old Doyle was living with his girlfriend and

her ten-year-old daughter, H.H. H.H. stayed home sick from school that day and Doyle

was responsible for watching her. H.H. knew that Doyle usually kept a gun under his

pillow, ammunition in the chest next to the bed, and knives in the bedroom.

       H.H. was in Doyle’s bed and Doyle began to tickle her and kiss her on her arm

and stomach. Doyle then got on top of H.H. and told her, “I’m going to f*** you.”

State’s Ex. 3A, p. 77. H.H. yelled for help, and Doyle closed the window. H.H. ran for

the door, but Doyle grabbed her. He then slapped H.H., told her to be quiet, and put his

hand over her mouth and nose. Doyle removed H.H.’s pants and spread her genitals apart

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with his fingers. He told H.H. to get up, closed the door to his bedroom, and removed his

clothing. H.H. used the connected restroom and then returned to Doyle’s room. Doyle

told H.H. to “go lay down on the bed,” id. at 141, and Doyle rubbed his penis on H.H.’s

genitals and said “You have a nice little pussy.” Id. Doyle ejaculated on H.H. and used a

towel to wipe his penis and H.H.’s genitals. He told H.H. to stand up and put her clothes

back on. H.H. then moved to lie down on the couch, but Doyle told her to “come here.”

Id. at 142. He then showed H.H. a gun and a knife and threatened to kill her if she told

anyone. H.H. “pinky-promised” Doyle that she would not tell anyone what he had done.

Id. Doyle then showed H.H. that he was putting a gun in his jacket pocket. Both Doyle

and H.H. went to H.H.’s grandmother’s house that evening, and H.H. told her

grandmother what Doyle had done to her. The police arrived at H.H.’s grandmother’s

house and took H.H. and her mother to Cincinnati Children’s Hospital. Sexual-assault

evidence was collected from H.H.

      Police were initially unable to find Doyle.      In May 2011, Doyle called his

daughter, Tricia, and told her that he had intended to have intercourse with H.H. Tricia

then told the police where Doyle was. When police arrived at the residence where Tricia

said Doyle was, they found him hiding in a back bedroom and his car was hidden at

another location. Doyle admitted to touching H.H. with his penis for approximately

thirty seconds. State’s Ex. 28A, p. 314.

      The State charged Doyle with Class A felony attempted child molesting, two

counts of Class A felony child molesting while armed with a deadly weapon, and Class C

felony intimidation with a deadly weapon. A jury trial was held and Doyle was found

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guilty on all counts. At the sentencing hearing, the trial court merged the two Class A

felony child molesting while armed with a deadly weapon convictions into the Class A

felony attempted child-molesting conviction. It then sentenced Doyle to fifty years for

Class A felony attempted child molesting and four years for Class C felony intimidation

with a deadly weapon, to be served concurrently.

       Doyle now appeals.

                                Discussion and Decision

       Doyle raises three arguments on appeal: (1) whether there is sufficient evidence to

sustain his Class A felony attempted child-molesting conviction; (2) whether there is

sufficient evidence to sustain his two Class A felony child molesting while armed with a

deadly weapon convictions; and (3) whether the trial court erred in merging his two Class

A felony child-molesting convictions with his attempted child-molesting conviction

instead of vacating the convictions.

       The State concedes that Doyle’s two Class A felony child molesting while armed

with a deadly weapon convictions should have been vacated instead of merged to remedy

a double-jeopardy violation. Appellee’s Br. p. 5-6. We therefore vacate the two merged

Class A felony child molesting while armed with a deadly weapon convictions, and need

only address Doyle’s first argument.

       Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence

or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.

App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable

                                            4
to the judgment and the reasonable inferences draw therefrom and affirm if the evidence

and those inferences constitute substantial evidence of probative value to support the

judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be

able to form inferences as to each material element of the offense. Id.

        Indiana Code section 35-42-4-3 governs child molesting and provides in relevant

part:

        (a) A person who, with a child under fourteen (14) years of age, performs
        or submits to sexual intercourse or deviate sexual conduct commits child
        molesting, a Class B felony. However, the offense is a Class A felony if:
               (1) it is committed by a person at least twenty-one (21) years of age;
               ....

Attempt is defined at Indiana Code section 35-4-5-1(a), which states, “A person attempts

to commit a crime when, acting with the culpability required for commission of the

crime, he engages in conduct that constitutes a substantial step toward commission of the

crime.” Therefore, to be guilty of Class A felony attempted child molesting, the State

must show that Doyle took a substantial step toward performing sexual intercourse on

H.H.

        The evidence presented at trial shows that forty-seven-year-old Doyle got on top

of ten-year-old H.H. and told her, “I’m going to f*** you.” State’s Ex. 3A, p. 77. Doyle

removed H.H.’s pants and spread her genitals apart with his fingers. Doyle then rubbed

his penis on H.H.’s genitals for approximately thirty seconds, only stopping when he

ejaculated.   Doyle’s daughter also testified at trial that Doyle had called her after

committing the act and told her that he intended to have sexual intercourse with H.H. Tr.

p. 160. The reasonable inference to be drawn from Doyle’s actions and statements was

                                             5
that he was attempting to have sexual intercourse with H.H. We therefore find that the

State provided sufficient evidence to sustain Doyle’s Class A felony attempted child-

molesting conviction.

      Affirmed in part, reversed in part.

BAKER, J., and FRIEDLANDER, J., concur.




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