FILED
Jul 14 2017, 9:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.P., July 14, 2017
Appellant-Respondent, Court of Appeals Case No.
85A04-1702-JV-383
v. Appeal from the Wabash Circuit
Court
State of Indiana, The Honorable Robert R.
Appellee-Petitioner McCallen, II, Judge
Trial Court Cause No.
85C01-1610-JD-52
Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017 Page 1 of 7
Case Summary
[1] D.P. appeals his adjudication as a juvenile delinquent based on the juvenile
court’s finding that he committed an act that would be Level 4 felony child
molesting if committed by an adult. He argues that the evidence is insufficient.
Based on the evidence presented at the fact-finding hearing, we do not believe
that a reasonable factfinder could find beyond a reasonable doubt that D.P.
touched or fondled the victim with the intent to arouse or satisfy sexual desires.
We therefore find that the evidence is insufficient to support the true finding for
Level 4 felony child molesting.
Facts and Procedural History
[2] In August 2016, the Department of Child Services contacted the Wabash City
Police Department about child-molesting allegations that four-year-old B.M.
had recently made against ten-year-old D.P. B.M.’s father and D.P.’s mother
lived together, and on the weekends B.M. would visit her father, which is where
the molestations allegedly occurred. B.M. made the allegations during a
videotaped interview at the Child Advocacy Center in Marion, Indiana. As
D.P. acknowledges on appeal, B.M. made very specific and incriminating
allegations against him in the videotaped interview, see Appellant’s Br. p. 6, but
this video was not admitted into evidence at the fact-finding hearing under our
Protected Person Statute. See Ind. Code § 35-37-4-6.
Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017 Page 2 of 7
[3] In October 2016, the State filed a petition alleging that D.P. was a delinquent
child for committing acts that would be Level 3 felony child molesting (sexual
intercourse or other sexual conduct) and Level 4 felony child molesting
(fondling or touching with intent to arouse or satisfy sexual desires) if
committed by an adult.
[4] A fact-finding hearing was held in December 2016. Four-year-old B.M.
testified at the hearing. As the juvenile court later explained, B.M. was “very
young” and testifying was “difficult” for her. Appellant’s App. Vol. II p. 44.
B.M. testified that, on one occasion, D.P. told B.M. to “come here.” Tr. Vol. II
p. 20. He then touched B.M. on her “hooha” and her “butt” with his “hand.”
Id. at 20-21; see also Ex. 1 & 2.1 B.M. identified her “hooha” as the genital area
on an anatomical drawing of a little girl by drawing a circle. See Tr. Vol. II pp.
1
In its fact-finding order, the juvenile court noted that B.M. pointed to D.P.’s “penis” area when describing
the touching that occurred, but this is not clearly reflected in the testimony. For example, the following
exchange at the fact-finding hearing does not reflect which body parts B.M. was referring to:
THE COURT: Did he touch you right where Mr. Plummer’s pointing now? Okay.
Q: Both places? You have to say yes or no.
A: Yes!
Tr. Vol. II p. 23. Accordingly, when setting forth the facts in its brief, the State does not allege any touching
involving D.P.’s penis. See Appellee’s Br. p. 5 (Statement of the Facts). Rather, the State alleges that D.P.
touched B.M.’s “hooha” and “butt” with his “hand.”
Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017 Page 3 of 7
18-21; Ex. 1. B.M. had her clothes on at the time and did not feel the touching.
Tr. Vol. II pp. 23, 26.2
[5] The juvenile court found the Level 4 felony child molesting allegation true (but
not the Level 3 felony) and adjudicated D.P. a delinquent child. The court held
a dispositional hearing in February 2017 and ordered D.P. to serve ten days in a
detention facility and placed him on probation for twelve months.
[6] D.P. now appeals.
Discussion and Decision
[7] D.P. contends that the evidence is insufficient to support the true finding for
Level 4 felony child molesting. Though juvenile adjudications are not criminal
matters, when the State petitions to have a child adjudicated delinquent 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
2
B.M. also said that D.P. “humped” her, but B.M. described this as “hugging.” Tr. Vol. II pp. 31-34.
The State called another child to testify at the fact-finding hearing, five-year-old S.L. S.L. testified that
she saw D.P. and B.M., who were wearing clothes, watch a movie using a blanket one time. Id. at 43.
Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017 Page 4 of 7
credibility. Id. We will affirm unless no reasonable fact-finder could have
found the elements of the crime proven beyond a reasonable doubt. Id. We
may affirm the judgment even if it is supported by only the uncorroborated
testimony of the victim. Id.
[8] To sustain the true finding that D.P. committed an act 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.P., with a child under fourteen years
of age (B.M.), performed or submitted to fondling or touching with the intent to
arouse or satisfy the sexual desires of either B.M. or himself. Ind. Code § 35-42-
4-3(b); Appellant’s App. Vol. II pp. 46-47. We find that on this sparse record,
the State has failed to prove beyond a reasonable doubt that the touching or
fondling was committed with the intent to arouse or satisfy sexual desires.
[9] 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 said that other circumstances must be present that indicate
such intent. In that case, we found “several circumstances” that were relevant
to whether T.G. touched the victim with the intent to arouse or satisfy his
sexual desires:
First, the ages of the children are relevant. T.G. was eleven years
old. He is not a very young child. T.G. is significantly older
than [the victim], who was only six. They cannot be considered
Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017 Page 5 of 7
peers. The purpose of the child molestation statute “is to prohibit
the sexual exploitation of children by those with superior
knowledge or experience who are therefore in a position to take
advantage of children’s naivety.” C.D.H. v. State, 860 N.E.2d
608, 612 (Ind. Ct. App. 2007), trans. denied. Also, “‘age
differential is an important factor that may and should be
considered’ when determining a minor’s criminal liability under
a statute proscribing lewd or lascivious conduct with a child.” Id.
(quoting In re P.M., 156 Vt. 303, 592 A.2d 862, 864 (1991)).
Second, T.G. had previously kissed [the victim] on the lips with
an open mouth. Third, this was not the first time that he put his
hand in her underwear and touched her genitals. Fourth, T.G.
rubbed [the victim’s] genitals, he did not simply touch them.
Fifth, he told [the victim] to touch his penis, not once, but
repeatedly.
Id. (footnote omitted). Given all these circumstances, we held that a reasonable
factfinder could find beyond a reasonable doubt that T.G. touched or fondled
the victim with the intent to arouse or satisfy his sexual desires. Accordingly,
we affirmed T.G.’s true finding.
[10] One of the circumstances in T.G. is present in this case. That is, D.P. was ten
years old and B.M. was four years old, resulting in a six-year age difference.
But that is where the similarities between these cases end. At the fact-finding
hearing, B.M. testified to only one incident of touching. That touching
involved D.P. touching B.M.’s “hooha” and her “butt” with his “hand” while
her clothes were on. Although B.M. identified her “hooha” as her genital area
Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017 Page 6 of 7
on an anatomical drawing of a little girl by drawing a circle, see Ex. 1,3 there
was no evidence of exactly where D.P. touched B.M., how he touched her (for
example, touching or rubbing), or how long he touched her. Moreover, B.M.
did not feel the touching. And there was no evidence of any kissing or D.P.
asking B.M. to touch him. While we acknowledge that B.M. was a young
witness and there was great difficulty in procuring her testimony, we are
restricted to the evidence presented at the fact-finding hearing. And based on
that evidence only, we do not believe that a reasonable factfinder could find
beyond a reasonable doubt that D.P. touched or fondled B.M. with the intent to
arouse or satisfy his sexual desires. The evidence is therefore insufficient to
support the true finding for Level 4 felony child molesting.
[11] Reversed.
Bailey, J., and Robb, J., concur.
3
The circle B.M. drew also included the upper thighs and the lower stomach. See Ex. 1.
Court of Appeals of Indiana | Opinion 85A04-1702-JV-383 | July 14, 2017 Page 7 of 7