Cavins v. State, 012221 INCA, 20A-CR-1213

Docket Nº:20A-CR-1213
Opinion Judge:Bradford, Chief Judge.
Party Name:Jonathon Cavins, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney:ATTORNEYS FOR APPELLANT James H. Voyles, Jr. Jennifer M. Lukemeyer Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jodi Kathryn Stein Supervising Deputy Attorney General Indianapolis, Indiana
Judge Panel:Kirsch, J., and May, J., concur.
Case Date:January 22, 2021
Court:Court of Appeals of Indiana

Jonathon Cavins, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

No. 20A-CR-1213

Court of Appeals of Indiana

January 22, 2021

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Appeal from the Boone Superior Court The Hon. Lori Schein, Judge Trial Court Cause No. 06C01-1902-F4-396

ATTORNEYS FOR APPELLANT James H. Voyles, Jr. Jennifer M. Lukemeyer Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jodi Kathryn Stein Supervising Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Bradford, Chief Judge.

Case Summary

[¶1] Between July of 2018 and February of 2019, Dr. Jonathon Cavins saw Z.B., B.H., J.S., S.H., and A.M., all boys between the ages of twelve and sixteen, for physical examinations at his Lebanon practice. During the examinations, Cavins stroked the penises of all five boys and introduced condoms into their discussions, placing or attempting to place them on four of the boys' penises. The State eventually charged Cavins with two counts of Level 4 felony child molesting, one count of Level 5 felony sexual misconduct with a minor, and two counts of Level 6 felony child seduction. A jury convicted Cavins as charged, and the trial court sentenced him to an aggregate term of twenty-three years of incarceration with four years suspended to probation. Cavins contends that the State failed to introduce evidence sufficient to sustain any of his convictions, the trial court abused its discretion in sentencing him, and his sentence is inappropriately harsh. Because we disagree, we affirm.

Facts and Procedural History

[¶2] Beginning in 2008, Cavins was a pediatrician practicing medicine at Witham Health Services in Lebanon, and the practice group to which Cavins belonged used the American Academy of Pediatrics ("AAP") recommended practice to guide the physicians through the various health stages of children. Part of the AAP recommendation practice was to discuss various topics with adolescents twelve and older who were near to or entering puberty, which included drugs and alcohol, puberty, abuse, sexually-transmitted diseases, safe sex, and condoms. While it was acceptable by AAP standards to discuss condoms and even demonstrate the proper use of a condom on an object, such as a banana, there was no medical reason to ever put a condom on a patient during a medical examination nor to ever stroke a patient's penis in order to induce an erection.

[¶3] In July of 2018, Cavins saw thirteen-year-old Z.B. for a physical examination. After Cavins performed the standard physical examination with Z.B.'s mother in the room, Cavins took Z.B. to a different room, asked him to fill out a depression-screening form, and told him to undress and put on a gown. Cavins returned a short time later, and Cavins asked Z.B. if he was sexually active, to which Z.B. replied that he was not. Cavins left the examination room, retrieved a condom, and returned. Cavins opened the condom package and started to rub Z.B.'s penis by moving his hand back and forth in a symmetrical fashion several times. Cavins put the condom on Z.B.'s penis, but took it off and threw it away when Z.B. did not have an erection. Z.B. reported the incident to his mother that day.

[¶4] In the fall of 2018, Cavins saw sixteen-year-old B.H. for a physical examination. Cavins had placed a condom on B.H. during an earlier visit but had not stroked B.H.'s penis at that time. When alone with Cavins, B.H. asked Cavins to measure his penis because he wanted to know if his penis was small. Cavins used a cloth measuring tape to hold B.H.'s penis and measure it. Afterward, Cavins started to stroke B.H.'s penis with three fingers; Cavins commented that B.H.'s penis was not getting hard. B.H. tried to change the subject, but Cavins continued to stroke his penis. B.H. pulled away. Cavins was not wearing medical gloves.

[¶5] On December 7, 2018, Cavins saw fifteen-year-old J.S. as a new patient for a physical examination. After completing the initial new patient intake, Cavins took J.S. to a different room, left him with a depression-screening form, and told him to undress and put on a gown. Cavins asked J.S. if he was sexually active, to which J.S. replied that he was not. Cavins asked J.S. if he knew what a condom was, and J.S. said yes. Cavins pulled a condom out of his pocket and opened the package. Cavins started to stroke J.S.'s penis with his hand, with his thumb on top and two fingers on the bottom. Cavins attempted to put the condom on J.S.'s penis but it fell off because his penis was not erect. The situation felt awkward and "nasty" to J.S. Tr. Vol. V p. 26. Cavins told J.S. that he should wipe off his penis after using a condom to avoid "red penis." Tr. Vol. V p. 27. Cavins used a baby wipe and wiped off J.S.'s penis by holding the head of the penis with one hand and wiping the penis off with the other hand. Cavins did not wear gloves during the medical examination. J.S. told his parents about the experience when they left the office, but J.S.'s father decided not to report the incident because he trusted Cavins and had faith that nothing untoward had happened.

[¶6] On January 9, 2019, Cavins saw sixteen-year-old S.H. for a physical examination. After Cavins performed the standard physical examination with S.H.'s mother in the room, Cavins took S.H. to a different room, asked him to fill out a depression-screening form, and to undress and put on a gown. Cavins returned a short time later, reviewed S.H.'s answers on the form, and performed the rest of the physical examination, which included a hernia examination and a check for discharge from S.H.'s penis. Cavins asked S.H. if he was sexually active, to which S.H. replied that he was not. As Cavins manipulated S.H.'s testicles, Cavins began talking about condoms and asked S.H. if he wanted to see one. S.H. said yes, so Cavins retrieved one from the cabinet above the sink, opened the package, and handed it to S.H. When Cavins asked, S.H. told Cavins that he did not want to put it on; Cavins, however, held S.H.'s testicles and started to stroke S.H.'s penis with his hand around the penis in a circle. Cavins tried to put the condom on S.H.'s penis, but S.H. "smacked" Cavins's hand away. Tr. Vol. IV p. 22. Cavins said, "okay," placed the condom on S.H.'s finger, and stroked it with his whole hand wrapped around S.H.'s finger. Tr. Vol. IV p. 22. Cavins explained what the condom was for and how to use and dispose of it. Cavins also advised S.H. that his penis would be sticky so to gently clean it off. Cavins told S.H. to "keep it between us." Tr. Vol. IV p. 46. Cavins did not wear gloves during the medical examination. S.H. felt uncomfortable and reported the incident to his mother. S.H.'s parents decided to give Cavins the benefit of the doubt and did not report the incident.

[¶7] On February 4, 2019, Cavins saw twelve-year-old A.M. for a physical. After Cavins performed the standard physical examination with A.M.'s family in the room, Cavins took A.M. to a different room and asked him to fill out a depression-screening form, undress, and put on a gown. When Cavins returned, A.M. declined Cavins's invitation to see a condom, telling Cavins that he was not ready. Cavins, however, took a condom from his pocket, handed the package to A.M., and told him to open it. Cavins did not explain what a condom was for, and A.M. had never seen one before. A.M. opened the package as Cavins began to stroke A.M.'s penis with his hand. Cavins took the condom from A.M.'s hand, rolled it onto A.M.'s penis, and continued to stroke A.M.'s penis to an erection. Cavins told A.M. that he did not have to tell his parents about what was occurring. Cavins watched A.M.'s penis and commented about "[j]erking off[, ]" a term with which A.M. was not familiar. Tr. Vol. III p. 132. A.M. felt very awkward and did not like what Cavins was doing. Cavins took the condom off, wrapped it into a tissue, and threw it into the trash, advising AM. never to throw a condom into a toilet. Cavins also told A.M. that he had to clean his penis after wearing a condom and wiped off A.M.'s penis with a wet paper towel. Cavins did not wear gloves during the examination.

[¶8] A.M. reported the incident to his mother that day and his family reported the incident to police on February 7, 2019. Following A.M.'s forensic interview, Lebanon Police Detective Major Tony Bayles secured a search warrant to search the pediatric unit for condoms and condom wrappers. A partially used box of condoms was found in the top drawer of Cavins's desk in his personal office.

[¶9] On February 22, 2019, Cavins was charged with Level 4 felony child molesting and arrested that day. By 6:00 p.m., Detective Bayles had been contacted by the families of J.S. and Z.B., who reported similar conduct. Following the filing of additional charges relating to J.S. and Z.B., the families of S.H. and B.H. also came forward. None of the five boys knew each other, lived in the same town, or attended school with any of the others. On January 28, 2020, the State filed a reordered charging information which contained the following charges: Count I-Level 4 felony child molesting [A.M.];

Count II-Level 4 felony child molesting [Z.B.];

Count III-Level 5 felony sexual misconduct with a minor [J.S.];

Count IV-Level 6 felony child seduction [S.H.]; and,

Count V-Level 6 felony child seduction [B.H.].

[¶10] Cavins's jury trial began on February 10, 2020, during which all five boys testified...

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