MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Mar 15 2016, 9:23 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
Christopher J. Hammerle                                  Gregory F. Zoeller
Jacob, Hammerle & Johnson                                Attorney General of Indiana
Zionsville, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy Reno,                                            March 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         06A01-1507-CR-879
        v.                                               Appeal from the Boone Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew C.
Appellee-Plaintiff.                                      Kincaid, Judge
                                                         Trial Court Cause No.
                                                         06D01-1308-FA-306



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A01-1507-CR-879 | March 15, 2016    Page 1 of 8
                                         Statement of the Case
[1]   Timothy Reno (“Reno”) appeals his conviction for Class C felony child

      molesting.1 He argues that there is insufficient evidence to support his

      conviction because the State failed to prove: (1) that the conduct occurred

      during the time period alleged in the charging information; (2) Reno’s identity

      as the perpetrator of the crime; and (3) Reno’s intent to arouse or satisfy his

      sexual desires or those of the victim. Finding sufficient evidence of time,

      identity, and intent, we affirm Reno’s conviction.


                                                        Issue
               Whether there is sufficient evidence to support Reno’s conviction
               for Class C felony child molesting.


                                                        Facts
[2]   The facts most favorable to the conviction reveal that E.S. was born in May,

      2001. In 2009 and 2010, E.S.’s grandparents lived in an apartment in

      Zionsville, where E.S. frequently spent the night. During that same time period,

      fifty-three-year-old Reno often worked with E.S.’s grandparents and spent the

      night at their apartment as well. One night at this apartment during 2009 or

      2010 when E.S. was eight or nine years old, Reno and E.S. slept in the same

      bed. When they awoke the following morning, Reno touched E.S.’s penis both




      1
       IND. CODE § 35-42-4-3. We note that effective July 1, 2015, this statute was amended and Reno’s offense
      would now be considered a level 3 felony. However, we will apply the version of the statute in effect at the
      time of the offense.

      Court of Appeals of Indiana | Memorandum Decision 06A01-1507-CR-879 | March 15, 2016               Page 2 of 8
      over and under E.S.’s clothing. At Reno’s request, E.S. also touched Reno’s

      penis. The touching stopped when E.S.’s grandparents woke up.


[3]   E.S. did not tell anyone what had happened until 2012, when he told his

      mother and a counselor. Zionsville Police Department Officer Brad Kiefer

      interviewed Reno, who admitted that he had been in bed with E.S. at the

      grandparents’ apartment. According to Reno, E.S. was sick, and Reno got in

      bed with E.S. to rub his stomach. When the officer asked Reno if he had

      touched E.S. inappropriately, Reno responded that he “didn’t know, he might

      have. Big hands, small stomach.” (Tr. 206).


[4]   In an amended information filed in February 2015, the State charged Reno with

      Class C felony child molesting. The information alleged that “[b]etween

      October 1, 2009, and September 30, 2010, Timothy Reno did perform or submit

      to fondling or touching with [E.S.], a child under the age of fourteen years, with

      intent to arouse or satisfy the sexual desires of the child or defendant . . . .”

      (App. 271).


[5]   At trial, the State presented evidence of the above facts. Also at trial, the parties

      stipulated that E.S.’s grandparents lived in a specific Zionsville apartment from

      October 9, 2009, through September 30, 2010. In addition, E.S.’s father

      identified Reno in court as “Tim Reno,” (Tr. 152), a friend of E.S.’s

      grandparents who often stayed at their Zionsville apartment. According to

      E.S.’s father, he had known Reno for several years, and E.S. called Reno

      “Uncle Timmy.” (Tr. 152). E.S.’s mother also identified Reno in court as


      Court of Appeals of Indiana | Memorandum Decision 06A01-1507-CR-879 | March 15, 2016   Page 3 of 8
      “Tim Reno,” and testified that she had known him for nineteen years. (Tr.

      188). Reno testified that he often stayed at E.S.’s grandparents’ apartment in

      Zionsville and that E.S. called him “Uncle Timmy.” (Tr. 237).                          E.S. testified

      that “Tim” touched his penis on top of and under his pants while they were

      sharing the same bed at his grandparents’ apartment in Zionsville. (Tr. 161).

      He further testified that he had never had a stomachache while staying at that

      apartment.


[6]   The jury convicted Reno of Class C felony child molesting, and the trial court

      sentenced him to four (4) years executed at the Department of Correction.

      Reno appeals.


                                                  Decision
[7]   Reno contends that there is insufficient evidence to support his conviction.

      Specifically, he argues that the State failed to prove he committed the act as

      charged, “both as to the timing during which the act was alleged to have

      occurred, and by failing to have the victim identify Reno during trial.” (Reno’s

      Br. 4). Reno also argues that the “State failed to establish beyond a reasonable

      doubt that any touching of E.S. by Reno was done with the intent to arouse.”

      (Reno’s Br. 7). We address each of his contentions in turn.


[8]   Our standard of review for sufficiency of the evidence is well-settled. When

      reviewing the sufficiency of the evidence needed to support a criminal

      conviction, we neither reweigh the evidence nor judge witness credibility.

      Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). We consider only the evidence

      Court of Appeals of Indiana | Memorandum Decision 06A01-1507-CR-879 | March 15, 2016          Page 4 of 8
       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence. Id. We will affirm a conviction if there is substantial evidence

       of probative value such that a reasonable trier of fact could have concluded the

       defendant was guilty beyond a reasonable doubt. Id.


[9]    Reno first argues that the State failed to prove that the prohibited conduct

       occurred between October 1, 2009, and September 30, 2010, as alleged in the

       amended charging information. However, our review of the evidence reveals

       that the parties stipulated that E.S.’s grandparents lived in an apartment in

       Zionsville from October 9, 2009 until September 30, 2010. The testimony also

       reveals that Reno touched E.S.’s penis while sleeping in the same bed with E.S.

       in this particular apartment. Thus, the State proved that the prohibited conduct

       occurred during the time period alleged in the amended charging information.


[10]   We further note that even if the State had not proved that the conduct occurred

       during the time period alleged in the charging information, there would still be

       sufficient evidence to support Reno’s conviction. The State need only allege the

       time of the offense as definitely as can be done if time is of the essence of the

       offense. See I.C. § 35–34–1–2(a)(6). It is well-established that where time is not

       of the essence of the offense, the State is not confined to proving the

       commission on the date alleged in the charging information but may prove the

       commission at any time within the statutory period of limitations. Love v. State,

       761 N.E.2d 806, 809 (Ind. 2002). Time is not of the essence in child molesting

       cases. Id. In such cases, the exact date is only important in limited



       Court of Appeals of Indiana | Memorandum Decision 06A01-1507-CR-879 | March 15, 2016   Page 5 of 8
       circumstances, such as where the victim’s age at the time of the offense falls at

       or near the dividing line between classes of felonies. Id.


[11]   Here, E.S. was eight or nine years old at the time of the offense. Because E.S.’s

       age did not fall at or near the fourteen-year-old dividing line for child molesting

       offenses, time was not of the essence in this case. See I.C. § 35-42-4-3. Because

       time is not of the essence, the State needed only to prove that the offense

       occurred during the statutory period of limitations. See Love, 761 N.E.2d at 809.

       The statutory period of limitations for a Class C felony is five years. See I.C. §

       35-41-4-2. The State is correct that E.S.’s testimony was sufficient to establish

       that the crime occurred during the statute of limitations and that this is

       sufficient evidence to support his conviction.


[12]   Reno next argues that there is insufficient evidence to support his conviction

       because the State failed “to connect the allegations made by E.S. to the actual

       Defendant, Reno.” (Reno’s Br. 5). According to Reno, “[w]hen the victim is

       not asked to identify the defendant at trial, or even linkup the identity during

       the course of the victim’s testimony, such testimony cannot be sufficient to

       support a conviction.” (Reno’s Br. 7).


[13]   However, it is well-established that circumstantial evidence alone may be

       sufficient to sustain a conviction. Harbert v. State, No. 06A01-1507-CR-879,

       2016 WL 430518, at *5 (Ind. Ct. App. Feb. 4, 2016). When evidence of

       identity is not entirely conclusive, the weight to be given to the identification




       Court of Appeals of Indiana | Memorandum Decision 06A01-1507-CR-879 | March 15, 2016   Page 6 of 8
       evidence is left to the determination of the jury, as determining identity is a

       question of fact. Id.


[14]   Here, our review of the evidence reveals that E.S.’s father identified Reno in

       court as “Tim Reno,” a friend of E.S.’s grandparents. (Tr. 152). According to

       E.S.’s father, E.S. called Reno “Uncle Timmy.” (Tr. 152). E.S.’s mother also

       identified Reno in court as “Tim Reno.” (Tr. 188). Reno testified that he often

       stayed at E.S.’s grandparents’ apartment in Zionsville and that E.S. called him

       “Uncle Timmy.” (Tr. 237). E.S. testified that “Tim” touched his penis on top

       of and under his pants while they were sharing the same bed at his

       grandparents’ apartment in Zionsville. (Tr. 161). This evidence is sufficient to

       sustain Reno’s conviction.


[15]   Lastly, Reno argues that there is insufficient evidence to support his conviction

       because the State failed to prove his intent to arouse his sexual desires or the

       sexual desires of E.S. INDIANA CODE § 35-43-4-3(b) provides as follows:

               A person who, with a child under fourteen (14) years of age,
               performs or submits to any fondling or touching, of either the
               child or the older person, with intent to arouse or to satisfy the
               sexual desires of either the child or the older person, commits
               child molesting, a Class C felony.


       The intent element of child molesting may be established by circumstantial

       evidence and inferred from the actor’s conduct and the natural and usual

       sequence to which such conduct usually points. Wise v. State, 763 N.E.2d 472,

       475 (Ind. Ct. App. 2002), trans. denied. The intent to arouse or satisfy sexual


       Court of Appeals of Indiana | Memorandum Decision 06A01-1507-CR-879 | March 15, 2016   Page 7 of 8
       desires may be inferred from evidence that the accused intentionally touched a

       child’s genitals. Id.


[16]   Here, Reno intentionally touched E.S.’s penis both over and under his pants

       when E.S. was nine or ten years old. This evidence is sufficient to prove that

       Reno intended to arouse or satisfy the sexual desires of either E.S. or Reno.


[17]   Affirmed.


       Baker, J., and Bradford, J., concur.




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