MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 10 2020, 10:56 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Catherine E. Brizzi
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lucas D. Melton, February 10, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1903
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
The Honorable Kelli E. Fink,
Magistrate
Trial Court Cause No.
82C01-1807-F4-4608
Bailey, Judge.
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Case Summary
[1] Lucas Melton (“Melton”) appeals one of his two convictions for child
molesting, as a Class C felony,1 following a jury trial. The only issue he raises
on appeal is the sufficiency of the evidence to support that conviction.
[2] We affirm.
Facts and Procedural History
[3] E.M., born June 6, 2005, is the child of Jessica Brown (“Mother”) and Melton.
For most of her life, E.M. lived with her maternal grandparents, Michael and
Sherri Brown. Mother also lived with E.M. and Michael and Sherri Brown
periodically. Although Melton had no court-ordered parenting time rights, in
2011 or 2012, when E.M. was approximately seven years old, Mother began
allowing E.M.to visit Melton where he resided. E.M. visited Melton
approximately once every week to ten days. Her visitations were usually for a
few hours’ time, but occasionally she spent the night with Melton.
[4] On E.M.’s eighth birthday, i.e., June 6, 2013, she refused to go with Melton
after a birthday dinner at a restaurant with Melton and Mother. E.M. had
begun to express hesitation to visit Melton or speak with him when he called on
the telephone. E.M. told Mother she was scared to visit Melton because, in the
1
Ind. Code § 35-42-4-3(b) (effective July 1, 2007 through June 30, 2014).
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past, he had left her alone in a vehicle at night and it scared her. She stated that
when she had cried because she was scared, Melton had yelled at her. In the
summer of 2014, when Mother could not find a babysitter for E.M., Mother
suggested that E.M. stay with Melton for fifteen to thirty minutes while Mother
attended a meeting. However, E.M. “basically had a panic attack on the
kitchen floor” and was “screaming and crying and begging not to go over
there.” Tr. Vol. II at 61. That was not typical behavior for E.M., who was
normally mild-mannered. E.M. told Mother she was scared to go to Melton’s
but would not tell Mother why. E.M. did not regularly see Melton again until
approximately one year later.
[5] In May of 2018, when E.M. was twelve years old, she told her maternal
grandfather (“Michael”) that Melton had molested her. E.M. informed
Michael that she was in the car with Melton when he unzipped his pants,
“pulled it out,” and touched her inappropriately. Tr. Vol. II at 42. E.M.’s
grandmother (“Sherri”) contacted the Indiana Department of Child Services
that same day. E.M. later explained to Sherri that she felt safe telling her
grandparents about the molestation at this time because Melton was in jail and
would be unable to confront her about the disclosure. Melton had told E.M.
that, if she said anything, they would not see each other again and they would
both be in trouble. On June 6, 2018, Sherri took E.M. to Holly House, a child
advocacy center, to meet with a detective and trained interviewers.
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[6] On July 5, 2018, the State charged Melton with three counts of Class C felony
child molesting,2 one count of Level 4 felony child molesting,3 three counts of
Class D felony child solicitation,4 and two counts of Level 5 felony child
solicitation.5 Prior to trial, the court dismissed one of the Class C felony child
molesting charges and one count of the Class D felony child solicitation charges
at the State’s request because they were barred by the statute of limitations.
[7] Melton’s jury trial took place on June 17, 2019. E.M., her mother, and her
maternal grandparents all testified. Sherri testified that, in June of 2018, after
E.M. had disclosed the molestation, Sherri discovered an entry in E.M.’s
journal that stated:
Dad so as you probably know i told. and im so sorry. i do miss
you. i miss going on adventures and hearing your voice. but i
can’t see you. What you did was wrong. i feel hurt. and i think
about it a lot. a dad doesn’t do what you did.
Tr. Vol. II at 85; Ex. at 7.
[8] E.M. testified that, multiple times, Melton engaged in sexual touching with her
when she was visiting him either at his residence or in his vehicle. She testified
that such touching happened “more than five times,” and “probably” more
2
I.C. § 35-42-4-3(b) (effective July 1, 2007 through June 30, 2014).
3
I.C. § 35-42-4-3(b) (effective July 1, 2014 through June 30, 2015).
4
I.C. § 35-42-4-6(b)(1) (effective July 1, 2007 through June 30, 2014).
5
I.C. § 35-42-4-6(b) (effective July 1, 2014).
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than ten times. Id. at 121.6 She testified that, specifically between the time her
step-sister Willow was born in August of 2013 and the time she had a
“breakdown” in the summer of 2014 because she did not want to have
visitation with Melton, Melton had engaged in sexual touching with her “more
than once.” Id. at 182. She testified that, after Willow was born but before her
“breakdown,” Melton touched and massaged her vaginal area, sometimes over
her clothes and sometimes under, when they were in his truck. Id. at 159-60.
She testified that these incidents lasted from five to ten minutes. Id. at 161. She
testified that, “a couple of times,” Melton forced her to touch his penis with her
hand. Id. at 163. She testified that when Melton put her hand “on his part,” he
“use[d her] hand to masturbate.” Id. at 182-83.
[9] At the close of the State’s case, the trial court granted Melton’s request for a
directed verdict on the remaining counts of felony child solicitation. The jury
found Melton guilty of the two remaining counts of Class C felony child
molesting7 and not guilty of the one count of Level 4 felony child molesting.
Melton was sentenced accordingly, and this appeal ensued.
6
At times, the State cites to the transcript of E.M.’s testimony during the State’s offer of proof that was made
outside the presence of the jury. Appellant’s Br. at 7; Tr. Vol. II at 115-148. However, an “offer of proof is
part of the record only insofar as the defendant chooses to challenge the trial court’s exclusion” of evidence
or testimony, and “we will not consider the offer for any other purpose.” Bradford v. State, 675 N.E.2d 296,
302 (Ind. 1996). Because Melton has not challenged any exclusion of evidence, we do not consider E.M.’s
testimony during the offer of proof.
7
The two counts of which Melton was convicted were for child molesting that took place (1) between
January 1, 2013, and December 31, 2013, and (2) between January 1, 2014, and July 1, 2014.
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Discussion and Decision
[10] Melton challenges the sufficiency of the evidence to support one of his
convictions. Our standard of review of the sufficiency of the evidence is well-
settled.
When an appellate court reviews the sufficiency of the evidence
needed to support a criminal conviction, it neither reweighs
evidence nor judges the credibility of witnesses. Bailey v. State,
907 N.E.2d 1003, 1005 (Ind. 2009). The appellate court only
considers “the evidence supporting the judgment and any
reasonable inferences that can be drawn from such evidence.” Id.
(quoting Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)). A
conviction will be affirmed if there is substantial evidence of
probative value supporting each element of the offense such that
a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt. Bailey, 907 N.E.2d at 1005. A
verdict of guilt may be based upon an inference if reasonably
drawn from the evidence. See Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007).
Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014). Moreover, a conviction
may be sustained on only the uncorroborated testimony of a single witness,
even when that witness is the victim. Bailey v. State, 979 N.E.2d 133, 135 (Ind.
2012).
[11] To support Melton’s conviction of child molesting, as a Class C felony, the
State was required to prove that Melton, with a child under age fourteen,
performed or submitted to any fondling or touching of the child or himself with
intent to arouse the sexual desires of either the child or himself. I.C. § 35-42-4-
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3(b). Melton’s only allegation on appeal is that the evidence only supports one
of the two convictions because there is no evidence of specific dates of child
molesting during the relevant time period, i.e, between August 2013 and the
summer of 2014. That is, he does not dispute that he fondled or touched E.M.
with intent to arouse or that E.M. was under age fourteen when he did so;
rather, he asserts that the evidence is only sufficient to show that he did so one
time during the relevant time period.
[12] Indiana courts have long held that
time is not of the essence in the crime of child molesting…. It is
difficult for children to remember specific dates, particularly
when the incident is not immediately reported as is often the
situation in child molesting cases. The exact date becomes
important only in limited circumstances, including the case
where the victim’s age at the time of the offense falls at or near
the dividing line between classes of felonies.
Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992) (citations omitted). Thus,
when the age of the child at the time of the crime was not at issue, we have held
the evidence was sufficient to support a child molesting conviction when the
victim did not give an exact date but testified to “approximate time frames by
reference to other activities.” Phillips v. State, 499 N.E.2d 803, 806 (Ind. Ct.
App. 1986); see also, e.g., Krebs v. State, 816 N.E.2d 469, 473 (Ind. Ct. App. 2004)
(holding proof of the exact date and time of the molestation was not necessary
where the victim’s age during a specified time period was not near the dividing
line between classes of felonies). We have also held that evidence was sufficient
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to show two separate crimes of child molesting when the victim did not identify
two specific dates but rather testified that the molestation happened “at least
twice.” Kien v. State, 782 N.E.2d 398, 407-08 (Ind. Ct. App. 2003), trans. denied.
[13] As in Phillips, E.M. testified to approximate time frames by referencing other
activities; specifically, Willow’s birth in August of 2013 and E.M.’s
“breakdown” in the summer of 2014. That is, E.M. testified that, between
August of 2013 and the summer of 2014, while she and Melton were in his
truck, Melton both touched her vagina and forced her to touch his penis “more
than once.” Tr. Vol. II at 182. There is no question that E.M. was only age
eight or nine years old during that time period, well below the age of fourteen.
I.C. § 35-42-4-3(b). Therefore, the State was not required to prove the exact
dates when the child molestation occurred. Phillips, 499 N.E.2d at 806. And
the evidence was sufficient for the jury to conclude that Melton committed
more than one act of child molestation against E.M. during the relevant time
period. Kien, 782 N.E.2d at 407-08.
Conclusion
[14] The State provided evidence that E.M. was eight or nine years old when
Melton “more than once” fondled or touched her and/or himself with intent to
arouse the sexual desires of either E.M. or himself. That evidence was
sufficient to support the jury’s verdicts of guilty for both of the two Class C
felony child molesting convictions.
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[15] Affirmed.
Kirsch, J., and Mathias, J., concur.
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