Altes v. State
| Decision Date | 01 March 2005 |
| Docket Number | No. 49A02-0403-CR-262.,49A02-0403-CR-262. |
| Parties | James ALTES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Mark Small, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, James Altes (Altes), appeals his conviction for Counts I and V, child molesting, as a Class A felony, Ind.Code § 35-42-4-3; and Counts II, III, and IV, child molesting, as a Class C felony, I.C. § 35-42-4-3.
We affirm.
Altes raises four issues on appeal, which we consolidate and restate as the following two issues:
Altes, born on October 15, 1960, lived with his four children on Hoyt Avenue in Marion County, Indiana. At his residence, Altes maintained a swimming pool, basketball court, and large screen television for his children to enjoy. Several children from the neighborhood and his children's friends often visited Altes' home and frequently spent the night. During these sleep-overs, the children would sleep on blankets in the living room, while Altes would sleep on the couch even though he had his own separate bedroom. In addition to visiting his home, Altes would take the children on trips to the park or to the airport to watch the airplanes.
J.H., born on May 1, 1988, lived with her father on Hoyt Avenue. She frequently visited Altes' home and spent the night there. When she was nine years old, Altes began treating J.H. as his girlfriend by kissing her on the lips, touching her, telling her that he loved her, and that he wanted to marry her. Altes bought J.H. several gifts, including a necklace depicting two kissing angels inscribed with "[t]o [J.H.], on her 11th birthday, Love Jay." (Transcript p. 163). Eventually, J.H.'s feelings toward Altes changed from considering him cool to thinking that she loved him.
One day, when J.H. was around nine years old, she was again spending the day at Altes' residence. As she was taking a shower, Altes entered the bathroom without invitation, undressed, and joined J.H. in the shower. When he got into the shower, Altes started rubbing his hands all over J.H.'s body, including her breasts and vagina.
Sometime in 1999, when J.H. was eleven years old, J.H. was visiting Altes' home and watching television with Altes' daughter in his bedroom. When Altes' daughter left the bedroom, Altes entered the room and locked the door behind him. He first undressed J.H. and then undressed himself. After he rubbed his hands all over J.H.'s body and kissed her on the lips, Altes inserted his penis inside her vagina. Altes threatened J.H. and told her that he would come after her if she told anyone.
In August of 1999, J.H.'s mom, who is divorced from J.H.'s dad, was living in Lebanon, Indiana. At that time, J.H.'s parents had an argument about Altes driving J.H. to visit her mother without her father's permission. After they talked to Altes, J.H.'s parents informed him that he no longer could see their daughter. The next day, J.H.'s mother received several phone calls from Altes, inquiring why he no longer could spend time with J.H. Several weekends later, J.H.'s mother noticed two posters in the windows of Altes' home, stating "I love you, [J.H.]" and "I miss you, [J.H.]." (Tr. p. 280).
In 1999, H.B., born on March 6, 1988, moved with her mother to a home on Hoyt Avenue. That summer, when H.B. was eleven years old, she stayed overnight at Altes' home. H.B. was lying on the couch while other children were sleeping on the floor of the living room. During the night, Altes, sitting next to her on the couch, asked if he could give her a foot massage, to which she consented. Altes started rubbing her feet with his hand, and then continued to rub her legs for a couple of minutes. Thereafter, Altes moved his hand underneath H.B.'s underwear and started rubbing her bare bottom.
M.D., born on April 5, 1991, lived with her aunt and uncle on Hoyt Avenue. One evening during the summer of 2001, M.D. spent the night at Altes' home. M.D. and Altes' daughter were lying on cushions on the living room floor watching television, while Altes was lying on the couch. At some point, Altes moved onto the floor and laid down behind M.D., who was lying on her side, and put his arm around her. Altes started rubbing her upper body with his hand, first on top of her clothes but, later, he moved his hand underneath her clothes. Altes stopped when M.D. got up to use the bathroom.
A.B., born on December 7, 1989, was seven years old when she visited Altes' residence. During one visit she stayed overnight, sleeping on the living room floor with other children while Altes slept on the couch. During the night, Altes moved from the couch next to A.B. Altes slipped his hand underneath her clothes and put his finger inside her vagina. As A.B. moved away from him and towards a loveseat, Altes told her to come back, which she refused to do.
On October 23, 2002, the State filed an information, charging Altes with Count I, child molesting of J.H., as a Class A felony and Count II, child molesting of J.H., as a Class C felony. On November 7, 2002, and January 26, 2004, the State amended the information by adding Count III, child molesting of M.D., as a Class C felony; Count IV, child molesting of H.B., as a Class C felony; and Count V, child molesting of A.B., as a Class A felony. On January 26 through January 28, 2004, a jury trial was held. At the close of the trial, the jury returned a verdict of guilty on all Counts. Subsequently, on February 20, 2004 a sentencing hearing was held. At the end of the hearing, the trial court sentenced Altes to forty years with ten years suspended and five years probation on Count I, four years on Count II, four years on Count III, four years on Count IV, and thirty years on Count V, with sentences to run consecutively.
Altes now appeals. Additional facts will be provided as necessary.
Altes first contends that the evidence presented at trial was insufficient to support his conviction. Specifically, Altes argues that (1) the State failed to prove beyond a reasonable doubt that rubbing H.B.'s bottom was intended to arouse or satisfy sexual desires; (2) the State failed to prove beyond a reasonable doubt that rubbing M.D.'s upper body was intended to arouse or satisfy sexual desires; and (3) J.H.'s testimony is incredibly dubious.
Our standard of review for a sufficiency of the evidence claim is well-settled. In reviewing sufficiency of the evidence claims, we will not reweigh the evidence or assess the credibility of the witnesses. Cox v. State, 774 N.E.2d 1025, 1028-29 (Ind.Ct.App.2002). We will consider only the evidence most favorable to the judgment, together with all reasonable and logical inferences to be drawn therefrom. Alspach v. State, 755 N.E.2d 209, 210 (Ind.Ct.App.2001), trans. denied. The conviction will be affirmed if there is substantial evidence of probative value to support the conviction of the trier-of-fact. Cox, 774 N.E.2d at 1028-29. A judgment will be sustained based on circumstantial evidence alone if the circumstantial evidence supports a reasonable inference of guilt. Maul v. State, 731 N.E.2d 438, 439 (Ind.2000).
Thus, in order to convict Altes, the State was required to prove that Altes touched H.B. and M.D. with the intent to arouse or satisfy the child's or his sexual desires.
Altes' sole argument relates to the intent element of the charge. The element of intent for child molesting may be established by circumstantial evidence and inferred from the actor's conduct and the natural and usual sequence to which such conduct usually points. Kirk v. State, 797 N.E.2d 837, 841 (Ind.Ct.App.2003), reh'g denied, trans. denied. It is reasonable for a jury to infer that the touching did occur and that the intent did exist without a direct showing of both elements. Winters v. State, 727 N.E.2d 758, 761 (Ind.Ct.App.2000), trans. denied.
In the instant case, H.B. testified that in the summer of 1999, when she was eleven years old, she spent the night at Altes' residence. The record shows that during the nighttime, she was sitting on the living room couch with Altes. H.B. stated that at one point, Altes asked her if he could give her a foot massage, to which she consented. She explained that although he initially started rubbing her feet with his hand, he moved on to her legs and eventually, started rubbing her bottom. During trial, she clarified that he was touching her on her skin, underneath her t-shirt and underwear. Altes finally ceased when H.B. left the couch to use the bathroom.
We have previously found in Nuerge v. State, 677 N.E.2d 1043, 1049 (Ind.Ct.App.1997),trans. denied, that because an inner thigh is in close proximity to the genitals, an erogenous zone, it may itself be the source of sexual gratification. Thus, even though H.B. now testified that Altes touched her bare bottom, a factfinder could reasonably infer that this touching is close...
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