MEMORANDUM DECISION
Jul 09 2015, 5:29 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
Dawnya G. Taylor Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry W. Thomas, July 9, 2015
Appellant-Defendant, Court of Appeals Case No.
82A04-1410-CR-477
v. Appeal from the Vanderburgh
Circuit Court
Cause No. 82C01-1210-FA-1299
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff Judge
Bailey, Judge.
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Case Summary
[1] Jerry W. Thomas (“Thomas”) appeals his conviction for Child Molesting, as a
Class A felony. 1 We affirm.
Issues
[2] Thomas presents two issues for review:
I. Whether the trial court abused its discretion by admitting into
evidence Thomas’s confession absent independent evidence of
the corpus delicti; and
II. Whether sufficient evidence supports the conviction.
Facts and Procedural History
[3] In October of 2012, seven-year-old J.B. and eight-year-old S.B. lived with their
father (“Father”). Father worked with Thomas and on occasion invited him to
the family residence for a visit. During one of Thomas’s visits, S.B. walked into
J.B.’s bedroom and saw that Thomas had his hand inside J.B.’s pajama pants.
S.B. reported this event to Father.
[4] Father contacted police, and Thomas was interviewed. He admitted that he
had touched J.B. four times, once accidentally, by massaging her clitoris. (Tr.
149.) Thomas was charged with three counts of Child Molesting and one count
1
Ind. Code § 35-42-4-3(a)(3). The offense of Child Molesting is now a Level 1, 2, 3, or 4 felony. We refer to
the version of the statute in effect at the time of Thomas’s crime.
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of Obstruction of Justice. The latter charge was dismissed and Thomas was
brought to trial before a jury on the Child Molesting charges. The jury
convicted him of one charge and acquitted him of two others. He was
sentenced to twenty-eight years imprisonment. This appeal ensued.
Discussion and Decision
Corpus Delicti
[5] Thomas contends that his confession should not have been admitted because
the State failed to present independent evidence of the corpus delicti, or body of
a crime. More specifically, Thomas argues the crime charged was vaginal
penetration and the State presented only independent proof of penetration of
external genitalia.
[6] In order for an extra-judicial confession to be admissible, the State must
establish the corpus delicti; that is, there must be some independent evidence
tending to prove that the crime charged has been committed by someone. Green
v. State, 304 N.E.2d 845, 849-51 (Ind. 1974). The purpose for requiring proof of
the corpus delicti is to prevent the admission of a defendant’s confession to a
crime that never occurred. Hurt v. State, 570 N.E.2d 16, 19 (Ind. 1991). The
State is not required to prove the corpus delicti beyond a reasonable doubt, but
must present independent evidence from which an inference may be drawn that
a crime was committed. Douglas v. State, 481 N.E.2d 107, 110 (Ind. 1985). The
corpus delicti need not be established prior to admission of the confession so
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long as the totality of independent evidence presented at trial establishes it.
Morgan v. State, 544 N.E.2d 143, 146 (Ind. 1989).
[7] Apart from Thomas’s statement to police, the State presented S.B.’s testimony
that she had seen Thomas “molesting” J.B. by “having his hands on her private
part,” J.B.’s testimony that Thomas had touched her “where pee comes out,”
and Nurse Jessica Hahn’s testimony that the female urethra is located inside the
labia minora. This testimony establishes that a crime of penetration of a child’s
sex organ occurred. See e.g., Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App.
1991) (observing that proof of the slightest penetration is sufficient to establish
penetration and holding that penetration of external genitalia, or vulva, is
sufficient to support an unlawful sexual intercourse conviction).
[8] However, Thomas claims the testimonial evidence is insufficient to establish the
corpus delicti of the charged crime because the charging information alleges
that he “plac[ed] his finger into the vagina of the victim[.]” (App. 6.) He
observes that J.B. denied that Thomas had placed his fingers “inside” her body.
(Tr. 14.) Thomas asserts that the term “vagina” as used in the information
means the vaginal vault, and claims that the “State’s own exhibit makes clear
the vagina is itself internal to the female body.” (Appellant’s Br. At 7.) 2
2
State’s Exhibit 3, a diagram to which Thomas refers, labels the internal genitalia as “vaginal orifice.”
Thomas does not acknowledge the definition of “vagina” provided by Nurse Jessica Hahn, including both
external and internal genitalia.
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[9] In drafting the charging information, the prosecutor alleged that Thomas had
violated Indiana Code Section 35-42-4-3(a)(1), by committing deviate sexual
conduct against J.B. At that time, Indiana Code Section 35-31.5-2-94 defined
deviate sexual conduct to include: “an act involving … [t]he penetration of the
sex organ or anus of a person by an object.” The charging information used the
term “vagina” as opposed to the statutory phrase “sex organ.” However, the
jury was instructed consistent with the statutory definition, and Thomas lodged
no objection in this regard.
[10] To the extent that Thomas now complains that the State’s evidence did not
mirror the charging information, he has made no claim of a fatal variance
between the charging information and the proof adduced at trial. To the extent
that Thomas suggests the State must establish each element of the charged
crime in precise conformity with the charging information as a predicate to
admission of a confession, he is incorrect. See Hurt, 570 N.E.2d at 20, observing
that “each element of a crime need not be proved beyond a reasonable doubt
before a confession is admissible.”
[11] In Hurt, the Court clarified that, where a victim had testified to an attack and
there was evidence that she had been stabbed and stripped of her clothing, there
was sufficient evidence to satisfy a corpus delicti requirement that a crime had
been committed, “even though there was no direct evidence that the specific
crime of rape had, in fact, occurred.” Id. Accordingly, the Court concluded
that the admission of the defendant’s statements was not in error. Id. Here, we
are likewise confident that the State presented sufficient evidence to satisfy the
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corpus delicti requirement that a crime against J.B. had been committed,
notwithstanding the charging information’s reference to “vagina” as opposed to
“sex organ.”
Sufficiency of the Evidence
[12] Thomas contends that there is insufficient evidence to support his conviction for
Child Molesting. More specifically, he denies that there is evidence that he
penetrated J.B.’s vagina.
[13] When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Henley v.
State, 881 N.E.2d 639, 652 (Ind. 2008). We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence. Id. We will affirm 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.
[14] The State alleged that Thomas performed deviate sexual conduct “by placing
his finger into the vagina of the victim[.]” (App. 6.) Deviate sexual conduct
was then defined by Indiana Code Section 35-31.5-2-94 to include “an act
involving … [t]he penetration of the sex organ or anus of a person by an
object.” The statute defining deviate sexual conduct included no requirement
that the vagina be penetrated, only that a sex organ of a person be penetrated.
Notwithstanding the undefined reference to vagina in the charging information,
the jury was instructed using the statutory definition of deviate sexual conduct.
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[15] J.B. testified that Thomas had placed his hand underneath her clothes, on her
“cat” or “private part,” more specifically, where “the pee comes out.” (Tr. 12,
16.) Thomas admitted that he had “massaged [J.B.]’s clit.” (Tr. 149.) Nurse
Jessica Hahn testified that “the major parts of the vagina” include “the mons
pubis at the top,” labia majora, labia minora, vaginal opening, urethra, and
clitoris. (Tr. 126.) She further explained that the urethra and clitoris are inside
the labia minora. From this evidence, the jury could conclude beyond a
reasonable doubt that Thomas committed deviate sexual conduct against J.B.
Conclusion
[16] Thomas’s confession was not admitted in the absence of independent evidence
of a corpus delicti. There is sufficient evidence to support Thomas’s conviction
of Child Molesting.
[17] Affirmed.
Riley, J., and Barnes, J., concur.
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