MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Nov 10 2015, 10:06 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
Bruce W. Graham Gregory F. Zoeller
Graham Law Firm, P.C. Attorney General of Indiana
Lafayette, Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Payton Jarrard, November 10, 2015
Appellant-Petitioner, Court of Appeals Cause No.
79A02-1503-CR-159
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Respondent. Judge
Trial Court Cause No.
79D01-1409-F1-1
Barnes, Judge.
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Case Summary
[1] Payton Jarrard appeals his conviction for Level 1 felony child molesting. We
affirm.
Issues
[2] Jarrard raises three issues, which we reorder and restate as:
I. whether the trial court properly sustained an
objection on hearsay grounds;
II. whether the jury was properly instructed; and
III. whether there is sufficient evidence to support
his conviction.
Facts
[3] In August 2014, Jarrard was in a relationship with eleven-year-old T.C.’s
mother. One night, T.C. was home with her two older brothers while her
mother was gone. Although Jarrard lived elsewhere, he was at the home with
T.C. and her brothers. After T.C. went to bed, she was awoken by Jarrard
shaking her bed as he touched her “bottom area” on the front, in the area she
used to urinate. Tr. p. 128. T.C. described feeling Jarrard touch inside her and
it hurting. T.C. immediately reported the incident to her brother, who called
their mother. Their mother told the children to go to a friend’s house, and the
incident was reported to the police.
[4] On September 3, 2014, the State charged Jarrard with Level 1 felony child
molesting and alleged that he was an habitual offender. A jury found Jarrard
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guilty of the child molesting allegation, and he pled guilty to the habitual
offender allegation. Jarrard now appeals.
Analysis
I. Hearsay
[5] Jarrard argues that the trial court improperly sustained the State’s objection to
testimony by Anna Gordon, the public health nurse who participated in T.C.’s
medical examination after the incident was reported. The trial court has broad
discretion to rule on the admissibility of evidence, and its rulings are reviewed
for abuse of that discretion. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).
We reverse only when admission is clearly against the logic and effect of the
facts and circumstances and the error affects a party’s substantial rights. Id.
[6] At trial, Gordon explained that a history of the incident was obtained from
T.C.’s mother. Gordon’s report indicated that T.C. told her mother that Jarrard
had touched her but did not put anything inside of her. The State objected to
this line of questioning, arguing that the content of the report was hearsay.
Jarrard’s attorney responded by arguing that he was trying to impeach T.C.’s
earlier testimony that Jarrard had put his finger inside of her. The trial court
sustained the State’s objection.
[7] Indiana Evidence “Rule 613 allows the use of a prior inconsistent statement to
impeach a witness, and when so used, the statement is not hearsay.” Jackson v.
State, 925 N.E.2d 369, 375 (Ind. 2010). “This rule permits prior inconsistent
statements by the person being impeached.” Id. Here, however, Gordon was
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not the declarant of the statement Jarrard sought to introduce, nor was she the
person Jarrard sought to impeach. Instead, the statement was attributable to
T.C. through her mother, and Jarrard did not question either T.C. or her
mother about the purported statement. The trial court properly excluded this
testimony from Gordon.1
II. Jury Instruction
[8] Jury instructions inform the jury of the law applicable to the facts without
misleading the jury and enable the jury to comprehend the case clearly to arrive
at a just, fair, and correct verdict. Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015),
cert. pending. We review jury instructions for an abuse of discretion, which
occurs when the instruction is erroneous and the instructions taken as a whole
misstate the law or otherwise mislead the jury. Id. at 484-85. When evaluating
jury instructions, we look to whether the tendered instructions correctly state
the law, whether there is evidence in the record to support giving the
instruction, and whether the substance of the proffered instruction is covered by
other instructions. Id. at 485.
1
On appeal, Jarrard argues that the statement in Gordon’s report was admissible because Gordon was an
expert witness, because it was a statement made for medical diagnosis and treatment, and because it
impacted his Sixth Amendment right to cross-examination. However, it is well settled that a defendant may
not argue one ground for objection at trial and then raise new grounds on appeal. Halliburton v. State, 1
N.E.3d 670, 683 (Ind. 2013). Because Jarrard did not raise these claims to the trial court, he has waived
these claims of error for appellate review. See id.
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[9] At trial, Jarrard argued that the State’s tendered instruction regarding
penetration was confusing. The trial court sustained Jarrard’s objection in part
and deleted the third paragraph of the tendered instruction. The trial court
instructed the jury as follows:
Proof of the slightest penetration is sufficient to sustain a
conviction for the crimes charged. Penetration does not require
the vagina to be penetrated, only that the female sex organ
including the external genitalia be penetrated.
The female external genitalia is defined as “the vulva in the
female.” The vulva is defined as the “external genitalia of the
female, comprised of the opening of the urethra and of the
vagina.”
App. p. 92.
[10] On appeal, Jarrard suggests that the instruction improperly emphasized one
particular evidentiary fact and that it improperly gave the jury a lesson in
anatomy. However, because these are not the same arguments Jarrard made at
trial, they are waived. See Ind. Trial Rule 51(C) (“No party may claim as error
the giving of an instruction unless he objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which he objects and the
grounds of his objection.”); Helsley v. State, 809 N.E.2d 292, 302 (Ind. 2004)
(“The defendant may not appeal the giving of an instruction on grounds not
distinctly presented at trial.”). Regardless, we do not agree that this instruction
improperly emphasized one particular evidentiary fact or improperly defined
certain terms because it informed the jury of the law applicable to the facts.
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Jarrard has not established that the manner in which the jury was instructed
was reversible error.
III. Sufficiency of the Evidence
[11] Jarrard argues there is insufficient evidence to support his Level 1 felony child
molesting conviction. When reviewing a challenge to the sufficiency of the
evidence, we neither reweigh the evidence nor assess the credibility of
witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We view the
evidence—even if conflicting—and all reasonable inferences drawn from it in a
light most favorable to the conviction and affirm if there is substantial evidence
of probative value supporting each element of the crime from which a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Id.
[12] A person, at least twenty-one years of age, who, with a child under fourteen
years of age, knowingly or intentionally performs or submits to sexual
intercourse or other sexual conduct commits child molesting, a Level 1 felony
child molesting. Ind. Code § 35-42-4-3(a)(1). Other sexual conduct means in
part an act involving “the penetration of the sex organ or anus of a person by an
object.” I.C. § 35-31.5-2-221.5. Here, the State alleged that Jarrard used his
hand to engage in other sexual conduct with T.C.
[13] Jarrad contends T.C.’s testimony did not establish that he used his finger to
penetrate T.C.’s sex organ. He argues, “While it is possible that Jarrard
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penetrated the sex organ, it is also just as likely, that Jarrard penetrated the
urethral opening of T.C.” Appellant’s Br. p. 11.
[14] T.C. testified that she woke up to Jarrard touching her in “bottom area.” Tr. p.
128. She elaborated that he was touching the “front,” the area for using “the
restroom.” Id. She further clarified that it was the area from where she
urinates. T.C. stated that she could feel Jarrard touching her on the inside and
that it hurt.
[15] In Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996),our supreme court
observed:
We believe a detailed anatomical description of penetration is
unnecessary and undesirable for two reasons. First, many people
are not able to articulate the precise anatomical features that were
or were not penetrated. Second, to require such detailed
descriptions would subject victims to unwarranted questioning
and cross-examination regarding the details and extent of
penetration.
[16] Although T.C.’s testimony did not include a precise anatomical description, it
was sufficient to allow the jury to infer that Jarrard penetrated her vagina with
his finger. To the extent he argues otherwise, it is a request for us to reweigh
the evidence, which we cannot do. See Bailey v. State, 979 N.E.2d at 135. There
is sufficient evidence to support Jarrard’s Level 1 felony child molesting
conviction.
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Conclusion
[17] Jarrard has not established that the trial court abused its discretion in sustaining
the State’s objection to Gordon’s testimony or in instructing the jury. Further,
there is sufficient evidence to sustain the child molesting conviction. We
affirm.
[18] Affirmed.
Kirsch, J., and Najam, J., concur.
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