MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Jun 12 2018, 9:32 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.H.,                                                    June 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A01-1708-JV-2033
        v.                                               Appeal from the Jackson Superior
                                                         Court
State of Indiana,                                        The Honorable Bruce Allan
Appellee-Plaintiff.                                      MacTavish, Judge
                                                         Trial Court Cause No.
                                                         36D02-1609-JD-55



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018              Page 1 of 7
                                        Statement of the Case
[1]   D.H. appeals his adjudication as a delinquent child for committing three acts

      that would be Level 4 felony child molesting if committed by an adult. He

      argues that the juvenile court did not properly obtain jurisdiction and that there

      is insufficient evidence to support the adjudication. Concluding that the

      juvenile court properly obtained jurisdiction and that there is sufficient evidence

      to support the juvenile delinquency adjudication, we affirm the juvenile court.


[2]   We affirm.


                                                     Issues
              1.       Whether the juvenile court properly obtained jurisdiction.

              2.       Whether there is sufficient evidence to support D.H.’s
                       adjudication as a delinquent child.

                                                     Facts
[3]   The facts most favorable to the adjudication reveal that M.I. (“Mother”) has

      three children. Son D.H., who was born in 2003, lives with Mother and her

      current husband in Seymour, Indiana. Daughters, S.B., who was born in 2004,

      and J.B., who was born in 2006, live with their Father in Florida and visit

      Mother during school breaks. During one of the girls’ visits in 2014, then-

      eleven-year-old D.H. inappropriately touched then-eight-year-old J.B. D.H.

      “was curious and was not sure if [the touching] was right or not.” (Ex. Vol. at

      107).




      Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018   Page 2 of 7
[4]   Two years later, while the girls were visiting their Mother in June 2016, then-

      thirteen-year-old D.H. went into then-ten-year-old J.B.’s bedroom at night and

      used his hand and “private part” to touch J.B.’s “private part.” (Tr. 42). D.H.

      inappropriately touched J.B. on more than one occasion.


[5]   In July 2016, J.B. fell asleep watching television in her bedroom. When she

      woke up at approximately 1:00 a.m., D.H. was next to her in the bed. D.H.

      pulled J.B.’s shorts down to her knees and moved his hand up and down on

      J.B.’s “private part.” (Tr. 37). D.H. also touched J.B.’s “private part” with his

      “private part,” as he had on other occasions. (Tr. 37).


[6]   Mother entered J.B.’s bedroom, noticed her two children under the covers, and

      asked D.H. what he was doing. He responded that he was watching television.

      When Mother told D.H. to watch television in his own room, D.H. responded

      that he did not want to do that. Mother, who “knew something was wrong,”

      pulled back the covers of the bed and discovered J.B. and D.H. Both had their

      shorts down to their knees, their genitals were exposed, and D.H. may have had

      an erection. (Tr. 38). Mother immediately contacted the police.


[7]   Following an investigation, D.H. was removed from Mother’s home and placed

      with his grandparents. In September 2016, the State filed a petition alleging

      that D.H. was a delinquent child. A detailed three-page probable cause

      affidavit was filed with the petition. The evidence presented at a hearing on the

      petition revealed that D.H. had accessed and watched a pornographic cartoon

      website before the July 2016 incident involving J.B. After the hearing, the


      Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018   Page 3 of 7
      juvenile court adjudicated D.H. to be a delinquent child. He now appeals the

      adjudication.


                                                     Decision
[8]   D.H. appeals his adjudication as a delinquent child for committing three acts

      that would be Level 4 felony child molesting if committed by an adult. He

      argues that the juvenile court did not properly obtain jurisdiction and that there

      is insufficient evidence to support the adjudication. We address each of his

      contentions in turn.


      1.       Jurisdiction

[9]   D.H. first contends that the juvenile court failed to follow the procedural steps

      necessary to obtain jurisdiction. He specifically refers to the jurisdictional

      requirement that the prosecutor make a preliminary inquiry into the case before

      filing a delinquency petition. 1 See IND. CODE § 31-37-8-1(c). Generally,

      noncompliance with this procedural prerequisite precludes the juvenile court’s

      assumption of jurisdiction over the juvenile. Matter of C.K., 695 N.E.2d 601,

      603 (Ind. Ct. App. 1998), trans. denied. However, where, as here, the child has

      committed a serious adult crime, inquiry by the court into further social history

      is unnecessary and not required by the statute defining preliminary inquiry.




      1
        A preliminary inquiry is an informal investigation into the facts and circumstances of the case. IND. CODE §
      31-37-8-2. Whenever practicable, it should include the child’s background, current status, and school
      performance. Id. If the child has been detained, the preliminary inquiry should include efforts made to
      prevent removal of the child, whether it is in the best interest of the child to be removed, and whether
      remaining in the home would be contrary to the health and welfare of the child. Id.

      Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018              Page 4 of 7
       Collins v. State, 540 N.E.2d 85, 87 (Ind. Ct. App. 1989), trans. denied. Because

       D.H. was alleged to be a delinquent child based upon an act that would

       constitute a serious crime if committed by an adult, no further inquiry in

       addition to that contained in the probable cause affidavit was necessary. See id.

       The juvenile court properly obtained jurisdiction over this case.


       2.      Sufficiency of the Evidence


[10]   D.H. also argues that there is insufficient evident to support his adjudication as

       a delinquent child. Although juvenile adjudications are not criminal matters,

       when the State petitions to have a child adjudicated to be a delinquent child for

       an act that would be a crime if committed by an adult, due process requires the

       State to prove its case beyond a reasonable doubt. S.M. v. State, 74 N.E.3d 250,

       253 (Ind. Ct. App. 2017). When reviewing whether the State’s evidence was

       sufficient to meet its burden, our standard is familiar. Id. We view the facts

       and the reasonable inferences from them in the light most favorable to the true

       finding. Id. We neither reweigh the evidence nor re-evaluate witness

       credibility. Id. Rather, we will affirm unless no reasonable fact-finder could

       have found the elements of the crime proven beyond a reasonable doubt. Id.


[11]   To sustain the true finding that D.H. committed acts that would constitute

       Level 4 felony child molesting if committed by an adult, the State was required

       to prove beyond a reasonable doubt that D.H., with a child under fourteen

       years of age, J.B., performed or submitted to fondling or touching with the

       intent to arouse or satisfy his sexual desires. See IND. CODE § 35-42-4-3. This


       Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018   Page 5 of 7
       Court has previously pointed out that the child molestation statute does not

       contain a minimum age for the perpetrator of the offense. In State v. J.D., 701

       N.E.2d 908, 910 (Ind. Ct. App. 1998), trans. denied, we concluded the

       “Legislature intended that the child molesting would apply to offenders

       regardless of their age and would even apply to offenders who f[e]ll within the

       protected age group set forth in the statute.”2


[12]   D.H. challenges his adjudication as a delinquent child. Specifically, he

       contends that there is insufficient evidence that he had the intent to arouse or

       satisfy his sexual desires. Rather, according to D.H., “Indiana should not make

       children into criminals for peer exploration.” (D.H.’s Br. at 16).


[13]   In T.G. v. State, 3 N.E.3d 19, 24 (Ind. Ct. App. 2014), trans. denied, we held that

       “it is unreasonable to infer intent to satisfy or arouse sexual desire solely from

       the fact that [a] child intentionally touched another child’s genitals” given that

       children may experiment by looking at and touching another child’s genitals.

       Accordingly, we explained that other circumstances must be present to indicate

       such intent. Id.


[14]   For example, in T.G., we found “several circumstances” that were relevant to

       whether T.G., who was male, had touched the female victim with the intent to

       arouse or satisfy his sexual desires. Id. at 25. First, we found that the ages of




       2
        We decline D.H.’s request that we “review and revise [our] position” that minors under the age of fourteen
       can be adjudged to be juvenile delinquents pursuant to the child molesting statute. (D.H.’s Br. 17).

       Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018             Page 6 of 7
       the children were relevant. Id. T.G., who was eleven years old, was

       significantly older than the six-year-old victim, and they could not be

       considered to be peers. Id. We also noted the extent of the conduct as well as

       the history of similar conduct were both relevant as well. Id. For example,

       T.G. had previously kissed the victim on the lips with an open mouth, put his

       hand in her underwear, and touched her genitals. Id. In addition, T.G. had not

       simply touched the victim’s genitals, he had rubbed them, and he had

       repeatedly told the victim to touch his penis. Id. Given all of these

       circumstances, we held that a reasonable factfinder could have found beyond a

       reasonable doubt that T.G. had touched or fondled the victim with the intent to

       arouse or satisfy his sexual desires. Id. Accordingly, we affirmed T.G.’s true

       finding. Id.


[15]   Here, as in T.G., we find the presence of circumstances to indicate D.H.’s intent

       to arouse or satisfy his sexual desires. First, thirteen-year-old D.H. was three

       years older than J.B., and they could not be considered peers. In addition,

       D.H. had begun inappropriately touching J.B. in 2014. His acts continued in

       2016, when he had not simply touched J.B.’s genitals but had moved his hand

       up and down on them. He had also accessed and watched a pornography

       cartoon website before touching J.B.’s genitals with his penis. This evidence is

       sufficient to support D.H.’s intent and adjudication as a delinquent child.


[16]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 36A01-1708-JV-2033 | June 12, 2018   Page 7 of 7
