MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 03 2020, 11:09 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Denise L. Turner Myriam Serrano
DTurner Legal LLC Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hayden Nix, June 3, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2300
v. Appeal from the Hancock Circuit
Court
State of Indiana, The Honorable Cody B. Coombs,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
30C01-1712-F3-2637
Brown, Judge.
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[1] Hayden Nix appeals his convictions for sexual misconduct with a minor as
level 5 felonies. He asserts the evidence is insufficient to sustain his convictions
and his sentence is inappropriate.
Facts and Procedural History
[2] At some point, Nix, who was born on September 2, 1998, and E.L., who was
born on February 24, 2003, were at a party. Nix asked her what grade she was
in, E.L. said she was a freshman, and Nix said: “dang you guys are young.”
Transcript Volume III at 44. Nix told E.L. that he was seventeen, but she later
learned that was incorrect.
[3] On October 19, 2017, Nix left a party with three other males and picked up
E.L. around 4:00 a.m. E.L. thought Nix was taking her to a party. Nix
dropped off two of the males and said there was no reason to go to the party.
The other male suggested going to “this place where there were hay bales,” and
Nix drove them to “an area that you could park the car for farmers or
electricians” near New Palestine. Id. at 19, 21.
[4] Nix kissed E.L. and began “feeling [her] up.” Id. at 21. At some point Nix
moved from the driver’s seat to the passenger side with E.L. and positioned
himself on top of her. He pulled down her pants and underwear, touched her
vagina with his hand, “finger[ed]” her, and “then it felt like – like somebody
had taken their elbow” and was “sticking it into [her] vagina because it was
very painful.” Id. at 21-22. E.L. felt like it was an elbow because it “was so like
large and it just had felt like” her vagina was being pushed open. Id. at 29. Nix
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held on to her hips, his legs were straight, and he “was thrusting in and out” of
her “vagina.” Id. at 31, 45. E.L. realized what was happening, did not know
what to do, and “was just frozen.” Id. at 30. During this time, the other male
was intoxicated and unconscious in the backseat.
[5] After Nix stopped, E.L. pulled up her pants, and Nix asked her if she enjoyed it
and showed her a clip from Family Guy on his phone for probably five minutes.
E.L. was “really shocked” and thought she was going to vomit. Id. at 33. Nix
drove E.L. home, and she felt disgusting and dirty, took a shower, washed all of
her clothes, and went to bed.
[6] In the following days, E.L.’s vagina was painful sometimes when she would
walk or sit down. That weekend, E.L. told her sister she was raped, said that
she did not want her to tell anybody, and asked her to keep it secret. On
November 15, 2017, E.L.’s sister told E.L. she needed to tell her parents, and
E.L. did so. That same day, E.L.’s father called the police.
[7] On December 21, 2017, the State charged Nix with Count I, rape as a level 3
felony, Count II, sexual misconduct with a minor as a level 5 felony alleging
“sexual intercourse,” and Count III, sexual misconduct with a minor as a level
5 felony alleging “other sexual conduct.” Appellant’s Appendix Volume II at
20.
[8] At trial, E.L. testified to the foregoing. The jury found Nix not guilty of Count
I, rape as a level 3 felony, and guilty of the two counts of sexual misconduct
with a minor as level 5 felonies under Counts II and III. At the sentencing
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hearing, E.L. and her mother testified regarding the impact of the offenses. The
court stated:
Mr. Nix has a – a significant criminal history and it’s not just a
significant criminal history you’re a 21 year old male this offense
occurred when you were it looks like you were just over 18 years
old and it is a significant criminal history in sexual behavior and I
think the Presentence Investigation Report is correct is that you
exhibit a lot of predatory behaviors. Specifically sexual predatory
behaviors. Um the Court will also find a aggravating factor uh
that Mr. Nix has violation the conditions of . . . his bond in
another matter.
Transcript Volume IV at 5. The court found no mitigating factors. It also
stated: “[A]s a sexual predator you are a danger to the Community and your
attorney asks what – what does a significant sentence do? What it does is it
protects the Community . . . .” Id. at 6. The court sentenced Nix to four years
for Count II and three years for Count III and ordered the sentences to be
served consecutively for an aggregate sentence of seven years. The court
ordered the sentences to run consecutive to cause numbers 30D01-1712-F3-
2636 (“Cause No. 2636”) and 30C01-1709-F5-1943 (“Cause No. 1943”).
Discussion
I.
[9] The first issue is whether the evidence is sufficient to sustain Nix’s convictions.
Nix contends the evidence is insufficient to sustain his conviction under Count
II because the State failed to present evidence that he penetrated E.L.’s vagina
with his penis, and as to his conviction under Count III, the evidence is
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insufficient because E.L. testified that he did not insert his fingers into her
vagina and the State presented no medical evidence to demonstrate penetration.
[10] When reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable
inferences therefrom that support the verdict. Id. The conviction will be
affirmed if there exists evidence of probative value from which a reasonable jury
could find the defendant guilty beyond a reasonable doubt. Id.
[11] The offense of sexual misconduct with a minor is governed by Ind. Code § 35-
42-4-9, which at the time of the offenses provided that “[a] person at least
eighteen (18) years of age who, with a child at least fourteen (14) years of age
but less than sixteen (16) years of age, performs or submits to sexual intercourse
or other sexual conduct (as defined in IC 35-31.5-2-221.5) commits sexual
misconduct with a minor, a Level 5 felony.” (Subsequently amended by Pub.
L. No. 144-2018, § 28 (eff. July 1, 2018); Pub. L. No. 40-2019, § 13 (eff. July 1,
2019)). Ind. Code § 35-31.5-2-302 defines “[s]exual intercourse” as “an act that
includes any penetration of the female sex organ by the male sex organ.” Ind.
Code § 35-31.5-2-221.5 defines “[o]ther sexual conduct” as “an act involving:
(1) a sex organ of one (1) person and the mouth or anus of another person; or
(2) the penetration of the sex organ or anus of a person by an object.” A finger
can be considered an object for purposes of the statute. See Seal v. State, 105
N.E.3d 201, 209 (Ind. Ct. App. 2018) (citing Ind. Code § 35-31.5-2-221.5 and
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observing that case law has established that a finger is an object for purposes of
the child molesting statute), trans. denied.
[12] The charging information for Count II alleged that Nix, “being at least 18 years
of age, did perform sexual intercourse with E.L., a child at least fourteen (14)
years of age but less than sixteen (16) years of age . . . .” Appellant’s Appendix
Volume II at 20. The charging information for Count III alleged that Nix,
“being at least 18 years of age, did perform other sexual conduct as defined by
I.C. 35-31.5-221.5, with E.L. a child at least fourteen (14) years of age but less
than sixteen (16) years of age . . . .” Id.
[13] In Boggs v. State, 104 N.E.3d 1287, 1288 (Ind. 2018), the Indiana Supreme
Court provided guidance on the meaning of “penetration” for purposes of
“other sexual misconduct.” The Court held that “[p]recedent makes clear that
proof of the ‘slightest penetration’ of the female sex organ, including
penetration of the external genitalia, is sufficient to sustain a conviction for
child molestation based on sexual intercourse.” 104 N.E.3d at 1288 (citing
Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), on reh’g (1997); Dinger v. State,
540 N.E.2d 39, 40 (Ind. 1989)). The Court further held that “proof of the
slightest penetration of the sex organ, including penetration of the external
genitalia, is sufficient to demonstrate a person performed other sexual
misconduct with a child.” Id. at 1289. The Court has also held “[t]he fact-
finder may infer penetration from circumstantial evidence such as the physical
condition of the victim soon after the incident.” Allbritten v. State, 262 Ind. 452,
453, 317 N.E.2d 854, 855 (1974).
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[14] With respect to Count III related to other sexual conduct, E.L. testified that Nix
pulled down her pants and underwear, was feeling her up, and fingering her.
When asked if she recalled whether any portion of Nix’s hand went into her
vagina, she answered: “No I do not.” Id. at 28. However, she also testified that
Nix touched her under her clothing and that “[h]is hand was touching my
vagina.” Id. at 28. When asked to describe her use of the word “fingering,” she
stated: “He like he had stuck his hand or his fingers or just not inside of me but
just on or like rubbing it or something.” Id. at 29.
[15] Based on the record and E.L.’s testimony, we conclude that the State presented
evidence of a probative nature from which a reasonable trier of fact could have
found that Nix committed sexual misconduct with a minor as charged under
Count III. See Hale v. State, 128 N.E.3d 456, 463 (Ind. Ct. App. 2019) (“While
K.F. did not know whether Hale’s finger had penetrated her vagina, again,
penetration of the vaginal canal is not required to prove Level 1 felony child
molesting as charged here. The State need only have proven penetration of
K.F.’s external genitalia. And it would have been physically impossible for
Hale to touch any part of K.F.’s vagina without having first penetrated her
vulva, or external genitalia.”), (citation omitted), trans. denied; Morales v. State,
19 N.E.3d 292, 297-298 (Ind. Ct. App. 2014) (rejecting the defendant’s
argument that penetration of the female external genitalia does not constitute
penetration of the female sex organ), trans. denied.
[16] As to Count II related to sexual intercourse, E.L. testified that Nix pulled down
her pants and “it felt like – like somebody had taken their elbow” and was
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“sticking it into [her] vagina because it was very painful.” Transcript Volume
III at 21. The following exchange then occurred during direct examination:
Q . . . After that happened you told us a little while ago about an
excruciating pain. Initially what you started to describe it as an
elbow tell me why you described it that way?
A Because it was like I just thought of that because it was so like
large and it just had felt like it was being like pushed open I
guess.
Q Okay. What was being pushed open?
A My vagina.
Q Okay. How did that feel?
A It was very painful.
Id. at 29. E.L. also testified that as she realized what was happening she did not
know what to do and she “was just frozen.” Id. at 30. When asked what Nix
was doing when she realized what was happening, she answered: “He was
holding on to my hips and his legs were straight.” Id. She stated that “[h]e was
thrusting in and out” of her “vagina.” Id. at 31, 45. She also testified that her
vagina was painful sometimes when she would walk or sit down in the
following days. On redirect examination, the prosecutor asked her if she
thought Nix had “literally put his elbow in [her] vagina,” and she answered in
the negative. Id. at 87. When asked what she meant by saying it felt like an
elbow, she said: “Like (inaudible) it felt like it but it wasn’t his elbow.” Id.
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[17] We conclude the State presented evidence of a probative nature from which a
reasonable trier of fact could have found that Nix committed sexual misconduct
with a minor as charged under Count II.
II.
[18] The next issue is whether Nix’s sentence is inappropriate in light of the nature
of the offenses and his character. Nix argues that the jury found him not guilty
of rape and the fact that he and E.L. were close in age mitigates the nature of
the offense significantly. He asserts that the imposition of consecutive
sentences resulting in the maximum sentence allowed was inappropriate in light
of the absence of any physical injury. With respect to his character, he argues
he had no adult criminal history at the time of the offense and was not a
hardened character. He also argues the trial court should have ordered his
sentences to run concurrent with each other and concurrent with the sentence
under Cause No. 2636. 1
[19] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [we find] that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Under this rule, the burden is on the defendant to persuade
1
To the extent Nix cites Article 1, Section 18, of the Indiana Constitution, which provides that “[t]he penal
code shall be founded on the principles of reformation, and not of vindictive justice,” we observe that the
Indiana Supreme Court has held that “particularized, individual applications are not reviewable under
Article 1, Section 18 because Section 18 applies to the penal code as a whole and does not protect fact-
specific challenges.” Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998), reh’g denied.
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the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[20] Ind. Code § 35-50-2-6 provides that a person who commits a level 5 felony shall
be imprisoned for a fixed term between one and six years, with the advisory
sentence being three years.
[21] Our review of the nature of the offense reveals that Nix, who was nineteen
years old, picked up E.L., who was fourteen years old, at 4:00 a.m., drove her
to an area other than the party which E.L. had originally thought they were
attending, pulled down her pants and underwear, positioned himself on top of
her, touched her vagina with his hand, and then held her hips and thrusted in
and out of her vagina while she felt like her vagina was being pushed open by
something large. After Nix dropped her at home, E.L. felt disgusting and dirty
and her vagina was painful sometimes when she would walk or sit down. At
the sentencing hearing, E.L. testified: “I was in a very dark place for quite a
while after everything. Many times I tried to end my life because I didn’t want
to deal with anything.” Transcript Volume III 222. E.L.’s mother stated that
E.L.’s depression and anxiety intensified after the offenses. E.L.’s mother also
stated that she obtained treatment for E.L. and “[t]he doctor said [E.L.] will
always suffer from PTSD because of this horrific nightmare she endured . . . .”
Id. at 229. The presentence investigation report (“PSI”) states that E.L.’s
parents reported that E.L. had become more reserved and less trusting of others.
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[22] Our review of the character of the offender reveals that, as a juvenile, Nix was
alleged to have committed sixteen counts in 2013 and he admitted in 2014 to
two counts of sexual battery as class D felonies and two counts of battery as
class B misdemeanors. In 2015, he admitted he violated probation. That same
year, he admitted to being a delinquent child for child molesting as a level 3
felony and two counts of conversion as class A misdemeanors. In 2016, the
court granted a motion to terminate filed by probation due to Nix incurring an
out-of-state charge and Nix was unsuccessfully terminated from probation. The
PSI states that he has one out-of-state arrest as a juvenile which occurred in
Virginia and involved sexually maladaptive thinking/behavior, he was being
supervised by Henry County Juvenile Probation on the Virginia case when he
incurred his first adult case, and the final outcome of the Virginia case had been
postponed pending the resolution of all Indiana cases. The PSI also indicates
Nix received services while a juvenile including probation supervision with
residential placement and homebased counseling, and that all services were sex
offender specific treatment programs.
[23] As an adult, Nix was convicted of battery resulting in moderate bodily injury as
a level 6 felony and domestic battery as a class A misdemeanor in 2019 under
Cause No. 1943 related to offenses occurring in October 2017. In December
2017, the court granted a petition to revoke bond under Cause No. 1943 due to
new offenses. He was convicted of three counts of sexual misconduct with a
minor as level 5 felonies under Cause No. 2636. He was also charged with rape
as a level 3 felony and sexual misconduct with a minor as a level 5 felony under
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cause number 30D01-1901-F3-209, and the PSI indicates that the matter was
pending.
[24] Nix reported he was regularly using alcohol and marijuana by age seventeen
and used cocaine approximately four times and LSD approximately three times
between ages eighteen and nineteen. The PSI indicates Nix was successfully
discharged in November 2015 from placement at Resolute Treatment Center, a
residential facility specializing in juvenile males experiencing sexually
maladaptive thinking/behaviors. That same month, he returned to outpatient
counseling. In November 2017, he was unsuccessfully terminated from sex
offense specific treatment at Family Service Society, Inc., due to failure to fully
cooperate with treatment. That same month, Nix began outpatient services
through Sojourners Rest Counseling to address sexually maladaptive
thinking/behaviors. The probation officer completing the PSI stated that Nix
described himself as “impulsive and incapable of turning down any female
(regardless of her age) that is interested in sexual contact.” Appellant’s
Appendix Volume II at 43.
[25] The PSI further provides that Nix’s overall risk assessment score using the
Indiana Risk Assessment System places him in the moderate risk to reoffend
category. The probation officer recommended consecutive sentences of four
years for Count II and three years for Count III.
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[26] After due consideration, we conclude that Nix has not sustained his burden of
establishing that his aggregate sentence of seven years is inappropriate in light
of the nature of the offenses and his character.
[27] For the foregoing reasons, we affirm Nix’s convictions and sentence.
[28] Affirmed.
Najam, J., and Kirsch, J., concur.
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