MEMORANDUM DECISION FILED
Dec 01 2016, 8:18 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
precedent or cited before any court except for the Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Albert Towne, December 1, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1511-CR-1854
v. Appeal from the Marion Superior
Court.
The Honorable Kurt M. Eisgruber,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 49G01-1405-FB-23673
Darden, Senior Judge
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Statement of the Case
[1] Albert Towne appeals his convictions of sexual misconduct with a minor, a
1 2
Class B felony, and sexual misconduct with a minor, a Class C felony. We
affirm.
Issue
[2] The sole issue on appeal is whether the State presented sufficient evidence to
support Towne’s convictions.
Facts and Procedural History
[3] The facts most favorable to the judgment follow. T.S. has been diagnosed with
an intellectual disability as well as several behavioral disorders. Towne, who
has also been diagnosed with an intellectual disability, engaged in sexual
intercourse with T.S. and the touching of T.S. When T.S. later told her mother
of the incident, an investigation commenced. Based upon the incident, Towne
was charged with one count of sexual misconduct with a minor, as a Class B
felony, and two counts of sexual misconduct with a minor as Class C felonies.
Following a bench trial, the court found Towne guilty of the Class B felony and
one Class C felony. The court sentenced him to six years with four years
1
Ind. Code § 35-42-4-9(a)(1) (2007).
2
Ind. Code § 35-42-4-9(b)(1).
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suspended and two years on home detention followed by two years of
probation. Towne now appeals his convictions.
Discussion and Decision
[4] Towne contends the State failed to present sufficient evidence to support his
convictions of sexual misconduct with a minor. When we review a challenge to
the sufficiency of the evidence, we neither reweigh the evidence nor judge the
credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126, 131 (Ind. Ct.
App. 2015), trans. denied. Instead, we consider only the evidence most favorable
to the judgment and any reasonable inferences drawn therefrom. Id. If there is
substantial evidence of probative value from which a reasonable fact-finder
could have found the defendant guilty beyond a reasonable doubt, the judgment
will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).
[5] Herein, in order to obtain a conviction for sexual misconduct with a minor as a
Class B felony, the State must prove beyond a reasonable doubt that: (1)
between June 1, 2013, and July 31, 2013, (2) Towne, a person at least twenty-
one years of age, (3) performed or submitted to sexual intercourse (4) with T.S.,
a child at least fourteen years of age but less than sixteen years of age. See Ind.
Code § 35-42-4-9(a)(1); Appellant’s App. p. 25. In addition, to establish the
offense of sexual misconduct with a minor as a Class C felony, the State must
prove beyond a reasonable doubt that: (1) between June 1, 2013, and July 31,
2013, (2) Towne, a person at least twenty-one years of age, (3) performed or
submitted to any fondling or touching (4) with T.S., a child at least fourteen
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years of age but less than sixteen years of age, (5) with the intent to arouse or
satisfy the sexual desires of Towne or T.S. See Ind. Code § 35-42-4-9(b)(1);
Appellant’s App. pp. 25-26.
[6] With regard to both of his convictions, Towne challenges the State’s evidence
only as to T.S.’s age at the time the incident occurred. The gist of his argument
is that one of the elements of both of these offenses is that the act occurred with
a child at least fourteen years of age, and the State did not prove T.S. was at
least fourteen years of age at the time of these incidents. Thus, he claims the
State did not prove beyond a reasonable doubt all of the elements of the charged
offenses of sexual misconduct with a minor as both a Class B and a C felony.
[7] The evidence most favorable to the judgment established that the sexual
misconduct occurred during June or July of 2013. T.S. was born on April 30,
1999. When T.S. was having visitation with her father during the summer of
2013, she played video games with Towne, who lived in an apartment across
the hall. Towne, who was 26 at the time, has been diagnosed with an
intellectual disability. On one occasion during the summer when T.S. was in
Towne’s apartment, Towne engaged in sexual intercourse with T.S. and the
touching of T.S.
[8] T.S.’s mother testified that T.S. has been diagnosed with attention deficit
disorder – impulsive type, mood disorder, attachment disorder, and an
intellectual disability. She further testified that when T.S. was fourteen, she
functioned at the level of an eight to ten-year-old, and, at the time of trial when
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T.S. was sixteen, she was functioning at a ten to twelve-year-old level. T.S.’s
mother testified that T.S. told her about the incident in February 2014.
[9] During her direct examination, T.S. was asked questions about what occurred
with Towne in the summer of 2013. T.S. explained that, at some point during
that summer, Towne’s “private area” touched her “private area,” and his hands
were on her chest. Tr. pp. 27, 26. On cross-examination, T.S. testified, “I
didn’t know what he did was very bad to me. I was only 13.” Id. at 36. And,
in response to a question concerning a police officer she spoke to, T.S. testified,
“Yes — I was only 13, yes — some blonde woman.” Id. at 37. In response to
another question, T.S. testified, “I kept it a secret for a year until I was 14 years
old.” Id. at 41. There were also several instances during T.S.’s testimony
where she responded to a question with “I don’t know” or “I don’t remember.”
Id. at 34, 37, 40, 41. She also stated things like, “I don’t know what you mean
about that” and “I don’t know her name. I don’t even remember her and I
don’t care.” Id. at 35, 37. At one point when asked if she remembered when
something occurred, T.S. responded, “2014 — no, 2000 — I don’t know.” Id.
at 37. At another juncture in her testimony, T.S. stated to defense counsel,
“Where you going — I don’t know what you’re talking about. I don’t know. I
don’t know what your name is and whoever you are I do not know what I’m —
what you are talking about right now.” Id. at 40-41.
[10] Circumstantial testimonial evidence can be sufficient to prove age. Hmurovic v.
State, 43 N.E.3d 685, 687 (Ind. Ct. App. 2015). Although T.S. made statements
on cross-examination about being thirteen at the time of this incident, the
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witnesses all indicated that the incident occurred during the summer of 2013
when T.S. had visitation with her father. Further, the uncontroverted evidence
showed that T.S. was born on April 30, 1999, making her fourteen during the
summer of 2013. In addition, T.S. was correct that she was fourteen when she
reported the incident to her mother in February 2014, some nine months after it
occurred.
[11] The trial judge, as the factfinder, observed firsthand all of the witnesses as they
testified, including T.S. As T.S. testified, the judge was able to take note of her
demeanor and general aptitude. In addition, the trial court heard the testimony
of T.S.’s mother regarding T.S.’s intellectual capacity. “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.” Barger
v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). We think this is especially true
when the victim, although a teenager, has cognitive disabilities. It is the
function of the trier of fact to resolve conflicts in testimony and to determine the
weight of the evidence and the credibility of the witnesses. K.D. v. State, 754
N.E.2d 36, 39 (Ind. Ct. App. 2001). We will not disturb the factfinder’s
determination.
[12] Assuming, arguendo, that the State’s evidence did not definitively prove that
T.S. was fourteen at the time of these offenses, Towne’s convictions still stand.
Where a victim’s age at the time of an offense was at or near the dividing line
between classes of felonies such that the State could not prove definitively the
victim’s age at the time of the molestation, it is appropriate to charge and
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convict the defendant with the lesser felony. Barger, 587 N.E.2d at 1307-08.
Towne was charged with Class B and Class C felony sexual misconduct based
upon T.S. being fourteen years of age but less than sixteen years of age. T.S.
was clearly under the age of sixteen at the time of this misconduct; however, if
T.S. was only thirteen as Towne argues, one of the two appropriate charges
would have been a higher class felony — child molesting as a Class A felony
and child molesting as a Class C felony, exposing him to a greater sentence if
convicted. See Ind. Code § 35-42-4-3 (a)(1) and (b) (2007). Thus, given these
circumstances, the State appropriately charged and convicted Towne of the
lesser felony rather than no felony at all as Towne suggests. See, e.g., Barger, 587
N.E.2d at 1306 (stating that, where State could not prove definitively whether
victim was eleven years old or twelve years old at time of molestation, “[i]t is
thus difficult to know whether Barger is guilty of a class D or a class C felony.
We do not think it follows that Barger is guilty of no felony at all.”).
Conclusion
[13] For the reasons stated, we conclude the State presented sufficient evidence to
support Towne’s convictions of sexual misconduct with a minor as a Class B
felony and sexual misconduct with a minor as a Class C felony.
[14] Affirmed.
Vaidik, C.J., and Kirsch, J., concur.
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