                                                                                            FILED
                                                                                    Jul 02 2020, 8:46 am

                                                                                            CLERK
                                                                                        Indiana Supreme Court
                                                                                           Court of Appeals
                                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      P. Jeffrey Schlesinger                                      Curtis T. Hill, Jr.
      Office of the Public Defender                               Attorney General
      Appellate Division                                          Sierra A. Murray
      Crown Point, Indiana                                        Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Henry Ward Brown,                                           July 2, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  20A-CR-171
              v.                                                  Appeal from the
                                                                  Lake Superior Court
      State of Indiana,                                           The Honorable
      Appellee-Plaintiff                                          Samuel L. Cappas, Judge
                                                                  Trial Court Cause No.
                                                                  45G04-1702-FA-2



      Vaidik, Judge.


[1]   In February 2017, the State charged Henry Ward Brown with child molesting

      as a Class A felony—which was elevated from a Class B felony based on Brown

      being at least twenty-one years old at the time of the offense—for molesting

      C.B. between January 1, 2011, and December 31, 2012. Appellant’s App. Vol.

      II p. 17. A jury trial was held in November 2019. According to the probable-
      Court of Appeals of Indiana | Opinion 20A-CR-171 | July 2, 2020                                       Page 1 of 3
      cause affidavit and PSI, Brown was born on February 14, 1958, and thus was

      sixty-one years old at the time of trial. However, the State forgot to present

      evidence of Brown’s age.1 C.B. testified and described Brown’s appearance at

      trial as being “bald in the middle at the top and hair in the back with a white

      beard.” Tr. Vol. III p. 2. In addition, evidence was presented that at the time of

      the offense in 2011-12, Brown had three cars—“a white Pontiac,” “a white

      Cadillac,” and a white Ford Expedition—worked as a handyman at the

      apartment complex where C.B. lived, had a house, and cared for six to ten

      children at a time. Id. at 93. The trial court instructed the jury that to find

      Brown guilty of child molesting as a Class A felony, the State had to prove that

      he was at least twenty-one years old at the time of the offense. Appellant’s App.

      Vol. II p. 80. The jury found Brown guilty as charged, and the trial court

      sentenced him to thirty years.


[2]   Brown now appeals. His sole argument is that the State failed to prove beyond a

      reasonable doubt he was at least twenty-one years old when he committed the

      offense. Although the State failed to present direct evidence of Brown’s age,

      “circumstantial testimonial evidence can be sufficient to prove age.” Staton v.

      State, 853 N.E.2d 470, 474 (Ind. 2006). In addition, a jury may use its common

      sense. Id. at 475. C.B. described Brown’s appearance at trial as being bald on

      top with a white beard. In addition, evidence was presented that at the time of



      1
       During closing, the prosecutor told the jury to remember that a detective testified about Brown’s date of
      birth; however, it is undisputed that no such evidence was presented. See Tr. Vol. III p. 126. Notably, Brown
      did not object when the prosecutor said this.

      Court of Appeals of Indiana | Opinion 20A-CR-171 | July 2, 2020                                    Page 2 of 3
      the offense in 2011-12, Brown was employed, had multiple cars and a house,

      and would watch numerous children at a time. The jury could use its common

      sense to determine from this evidence that Brown was at least twenty-one years

      old when he committed the offense. We therefore affirm the trial court.


[3]   Affirmed.


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




      Court of Appeals of Indiana | Opinion 20A-CR-171 | July 2, 2020           Page 3 of 3
