C.D.H. v. State, 71A04-0503-JV-125.

• Decision Date: 24 January 2007
• Docket Number: No. 71A04-0503-JV-125.,71A04-0503-JV-125.
• Citation: 860 N.E.2d 608
• Parties: C.D.H., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

860 N.E.2d 608

C.D.H., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A04-0503-JV-125.

Court of Appeals of Indiana.

January 24, 2007.

Jill Ulrich, Branson, MO, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issue

C.D.H., a minor, appeals from a proceeding in which he was adjudicated a juvenile delinquent based on the juvenile court's finding that C.D.H. committed an act that if committed by an adult would be the criminal offense of child molesting, a Class C felony. On appeal, C.D.H. raises the single issue of whether the evidence is sufficient to support the trial court's finding. Finding that the evidence is not sufficient, we reverse.

Facts and Procedural History

C.D.H., a ten-year-old boy, lived next door to A.C., a ten-year-old girl, and her family. C.D.H. and A.C. were good friends and attended a summer program for children with behavioral problems at a children's hospital together.¹ A.C.'s mother and stepfather babysat for C.D.H. on occasion and C.D.H. had previously spent the night at their house. On July 14, 2004, A.C.'s stepfather was babysitting C.D.H. at A.C.'s house. At some point in the evening, A.C. told her stepfather that she was not feeling well, and her stepfather instructed her to lie down in her room. A.C.'s stepfather told C.D.H. and A.C.'s sister to leave A.C.'s room, and C.D.H. went to the living room to watch television. After about twenty minutes, A.C.'s stepfather, realizing that he no longer heard the television, looked in the living room and discovered that C.D.H. was no longer there. A.C.'s stepfather then entered A.C.'s room and saw C.D.H. on top of A.C. in her bed. A.C.'s stepfather yelled at the children to take off the covers and ordered C.D.H. out of the room. When C.D.H. got off the bed, A.C.'s stepfather saw that C.D.H.'s underwear was in its normal place, but that his jeans were pulled down around his knees. C.D.H. began yelling at A.C.'s stepfather, denying that he had done anything wrong, and both C.D.H. and A.C.'s stepfather left the house.

When A.C.'s mother returned home, A.C. was crying and said that she would speak only to her case manager from the children's hospital. A.C.'s mother called the case manager, and the case manager and A.C.'s mother took A.C. to the hospital. A.C. told a nurse that C.D.H. had entered A.C.'s room, taken off his and her clothes, and gotten on top of her. A.C. said that C.D.H.'s penis was "hard" and that it "hurt." Transcript at 136. A rape kit examination was performed on A.C., but recovered no physical evidence of sexual assault.

The State charged C.D.H. with attempted rape, and later amended the charges to include child molesting. The juvenile court found A.C. competent to testify. At trial, A.C. testified that C.D.H. had entered her room, got into bed with her and touched her "private part" with his. Tr. at 80, 84. She initially stated that C.D.H. removed his clothes and that she had not removed hers, but later stated that her clothes had been removed; when asked to clarify, A.C. stated that she did not know whether either of them was wearing clothes.

The juvenile court made a true finding of child molesting, but found the evidence insufficient to support a true finding of attempted rape. The juvenile court then conducted a dispositional hearing, ordering C.D.H. to probation and placing him in a private child caring facility. C.D.H. now appeals.

Discussion and Decision

I. Standard of Review

In juvenile delinquency adjudication proceedings, the State must prove every element of the offense beyond a reasonable doubt. D.B. v. State, 842 N.E.2d 399, 401 (Ind.Ct.App.2006). When reviewing a claim challenging the sufficiency of the evidence, we will neither reweigh the evidence nor judge witnesses' credibility. Id. We will affirm the adjudication if we conclude that evidence of probative value exists so that a reasonable factfinder could find the elements of the underlying crime proven beyond a reasonable doubt. Id.

This case also requires us to interpret Indiana's child molestation statute. When interpreting a criminal statute, we use the following standard of review:

Penal statutes should be construed strictly against the State and ambiguities should be resolved in favor of the accused. At the same time, however, statutes should not be narrowed so much as to exclude cases they would fairly cover. Also, we assume that the language in a statute was used intentionally and that every word should be given effect and meaning. We seek to give a statute practical application by construing it in a way favoring public convenience and avoiding absurdity, hardship, and injustice. And statutes concerning the same subject matter must be read together to harmonize and give effect to each.

Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005) (citations omitted).

II. Sufficiency of the Evidence

C.D.H. argues that the evidence is insufficient to find beyond a reasonable doubt that C.D.H. had the requisite intent because both C.D.H. and A.C. were ten years old when the act took place. We first conclude that, for purposes of the child molestation statute, the legislature has mandated that the offender must be older than the victim. Thus, we conclude that the record contains insufficient evidence to support a finding that C.D.H was older than A.C.

A. Interpretation of Indiana's Child Molestation Statute

Indiana's statute prohibiting child molestation states:

A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony.

Ind.Code § 35-42-4-3(b) (emphasis added). The ordinary, plain language of the statute requires that the act of child molesting involve two people: (1) a child under the age of fourteen; and (2) a person older than that child. The State argues that this interpretation of the statute is "hyper-technical." Appellee's Brief at 6 n. 2. We do not feel it is hyper-technical to conclude that the legislature's use of the term "older person" requires that a molester in fact be an older person. Because we assume that the legislature intentionally used the adjective "older," we must give it meaning. See Merritt, 829 N.E.2d at 475. Had the legislature intended to criminalize all sexual touching between children under the age of fourteen, it would not have used the adjective "older." Therefore, a child cannot "molest" a child of the same age or who is older.

This interpretation also puts the child molestation statute in harmony with the Indiana statutes proscribing vicarious sexual gratification,² sexual conduct in the presence of a minor,³ child solicitation,⁴ child seduction,⁵ and sexual misconduct with a minor,⁶ all of which require that the offender be older than the child. We recognize that all these statutes also require that the offender be of a particular age, and that when the legislature amended the child molestation statute in 1994, it did away with its requirement that the offender be of any particular age. See State v. J.D., 701 N.E.2d 908, 911-12 (Ind.Ct.App. 1998), trans. denied. Our present holding in no way conflicts with our statement in J.D. that "[t]here is nothing in the statute to indicate that the Legislature intended to exclude an offending `person' who falls within the protected age group, i.e., one who is under fourteen years of age." Id. at 910. In J.D., we did not address the requirement that the offender be an "older person," and we note that on the facts of J.D., it is possible that the defendant and one of his victims could both have been seven years old.⁷ Id. at 909. To the extent that J.D. implies that the perpetrator need not be older than the victim, we find this implication to be an incorrect statement of the law. However, we restate our holding in J.D. that a charge of child molesting can be appropriate where the offender is below the age of fourteen. See id. at 910. We now hold that although the legislature dispensed with the requirement that the offender be of a certain age, the legislature retained the requirement that the offender be older than the victim. Therefore, when there is no evidence that one child is older than the other, a charge of child molesting is not appropriate.

The State argues that this interpretation is inconsistent with the statute's purpose, which the State identifies as, "to prevent and punish those who force others to submit to sexual behavior without consent." Appellee's Brief at 6. We disagree. Consent is irrelevant for purposes of the child molestation statute. J.D., 701 N.E.2d at 912 ("Consent is neither an element to be proved in a child molestation case nor a defense to such a charge"); Warrick v. State, 538 N.E.2d 952, 954 (Ind. Ct.App.1989). Instead, the child molestation statute's purpose 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. See Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992), aff'd, 991 F.2d 394 (7th Cir.1993) (explaining that, under a prior version of the child molesting statute, the offense was more serious if the victim was under twelve years old because "[y]ounger children are more in need of protection; they are less likely to be able to defend themselves and are more susceptible to adult suggestion and schemes"); Ward v. State, 528 N.E.2d 52, 54 (Ind.1988) ("the crime of child molesting is often perpetrated by persuasion and trickery rather than an overpowering or sudden attack"); Warrick, 538 N.E.2d at 954 ("the child molesting statute recognizes that children, because of their immaturity, are incapable of consenting to sexual...