Downey v. State

• Decision Date: 31 March 2000
• Docket Number: No. 35A02-9904-CR-241.,35A02-9904-CR-241.
• Citation: 726 N.E.2d 794
• Parties: Johnny L. DOWNEY, Appellant-Defendant, v. STATE of Indiana Appellee-Plaintiff.
• Court: Indiana Appellate Court

726 N.E.2d 794

Johnny L. DOWNEY, Appellant-Defendant, v. STATE of Indiana Appellee-Plaintiff.

No. 35A02-9904-CR-241.

Court of Appeals of Indiana.

March 31, 2000.

Susan K. Carpenter, Public Defender of Indiana, Lorraine L. Rodts, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Randi E. Froug, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

MATTINGLY, Judge

Johnny L. Downey appeals his conviction after a trial by jury of child molesting, a Class A felony.¹ He presents for our review whether the evidence at trial was sufficient to support the jury's verdict. Additionally, the State asks we order a modification of the judgment to that of a lesser included offense should we find the evidence insufficient to sustain Downey's original conviction.

We reverse and vacate the conviction.

FACTS AND PROCEDURAL HISTORY

On the evening of April 5, 1998, twenty-five-year-old Downey was home babysitting his wife's three children. After sending all three children upstairs to bed, Downey called for his eleven-year-old step-daughter, C.C., to return downstairs. Once she was downstairs, Downey told C.C. to come over to the couch and sit on his lap. While she was on his lap, Downey rubbed her breasts until he became aroused. Downey, apparently concerned that the couch could be seen from the stairway, moved with C.C. to another couch where he exposed his penis and made C.C. rub it. Downey then directed C.C. to pull down her pants and underwear and lay on the couch on her stomach. With C.C. bare from the waist down and on her stomach, Downey rubbed his penis between her buttocks until orgasm.

DISCUSSION AND DECISION

A. Sufficiency of the Evidence

Downey argues the evidence presented at trial was insufficient to support his conviction of child molesting, a Class A felony. In sufficiency of the evidence claims, we neither reweigh the evidence nor judge the credibility of the witnesses. Perry v. State, 638 N.E.2d 1236, 1242 (Ind. 1994); Byrd v. State, 707 N.E.2d 308, 312 (Ind.Ct.App.1999). Rather, we look to the evidence that supports the verdict and all reasonable inferences that can be drawn therefrom. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.1997); Chissell v. State, 705 N.E.2d 501, 505 (Ind.Ct.App.1999). We will affirm a conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Taylor, 681 N.E.2d at 1110. The uncorroborated testimony of a child victim is sufficient to support a conviction of child molesting. Link v. State, 648 N.E.2d 709, 713 (Ind.Ct. App.1995).

Child molesting under Ind.Code § 35-42-4-3² is divided into two subsections and encompasses the acts of sexual intercourse, deviate sexual conduct, and fondling or touching with the intent to arouse sexual desires. Buck v. State, 453 N.E.2d 993, 997 (Ind.1983). Of these acts, Downey was charged with and convicted of only child molesting by deviate sexual conduct under subsection (a). On this charge, the State was required to prove Downey (1) performed or submitted to (2) deviate sexual conduct (3) with a child under the age of fourteen. Ind.Code § 35-42-4-3(a). Deviate sexual conduct is "an act involving: (1) a sex organ of one person and the mouth or anus of another person; or (2) the penetration of the mouth or anus of a person by an object."³ § 35-41-1-9.

Downey argues his conviction must be vacated because there was insufficient evidence of an act involving his sex organ and the victim's anus or mouth. The evidence adduced by the State, he continues, established that Downey rubbed his penis between C.C.'s buttocks, not that he made contact with her anus. The distinction between an act involving the anus or mouth and an act involving only the buttocks, he argues, requires reversal. We agree.

Conviction of child molesting by deviate sexual conduct explicitly requires an act involving the sex organ of one and the mouth or anus of another. The legislature has not given any special meaning to the term "anus" and it is not this court's role to give statutory language any meaning other than its plain, ordinary, and usual meaning. JKB, Sr. v. Armour Pharm. Co., 660 N.E.2d 602, 605 (Ind.Ct.App. 1996). The plain and ordinary meaning of "anus," or anal orifice, is "the lower opening of the digestive tract, lying in the fold between the nates [buttocks], through which fecal matter is extruded." Stedman's Medical Dictionary 95 (4th ed.1976). The "buttocks," or nates, are "the prominence formed by the gluteal muscles," id. at 923, or "the two rounded prominences separated by a median cleft that form the lower part of the back ... and consist largely of the gluteus muscles." Webster's Third New International Dictionary 305 (1976). The words are not synonyms as they describe entirely different parts of the anatomy. Had the legislature intended for Ind.Code § 35-41-1-9 to encompass acts involving body parts other than the mouth or anus, it was free to so specify its intent. Since it did not so specify, we must read the statute as written and strictly construe it against the State. Becker v. State, 703 N.E.2d 696, 698 (Ind.Ct.App.1998).

The evidence presented by the State at trial was that Downey rubbed his erect penis between his eleven-year-old step-daughter's buttocks. During questioning by the State, C.C. testified:

A. He rubbed his penis in the back of me.

Q. Okay. When you say in the back of me, what part of you?

A. My butt cheeks.

Q. Your butt cheek. Okay. And how was he rubbing his penis in your butt cheeks?

A. Up and down.

(R. at 181-82.) Detective Hochstetler, who elicited admissions from Downey, testified:

A. [H]e told me that he had — either he pulled [C.C.'s] pants and underwear down or had her pull them down — uh — rolled her over on the couch onto her stomach, and then he got on top of her. And then he told me that her [sic] inserted — or he put his penis between her cheeks of her bottom — or the cheeks of her butt and started pumping her, or humping her.

....

A. John told me that — uh — first of all he was — he wanted to make it clear to me that all he did was put his penis between the cheeks of her butt, that he did not penetrate her anus with his — with his penis. It was just — he was just rubbing it between her cheeks.

(R. at 240-42.) Downey's own confession indicates that:

She rubbed me with her hand and I rubbed her brest [sic]. Then I pulled down her pants and had her lay on her stomach while I humped her but [sic]. I did not put it in just rubbed it against her.

(R. at 246.) Similar testimony was given by Ed Pereira, a child sexual abuse counselor to whom Downey admitted that "he had fondled her chest area; that he had rubbed his penis on her butt; and that she also had fondled his penis." (R. at 294.) The State never offered specific evidence or argued that any contact had been made between C.C.'s anus and Downey's penis. The only evidence presented was that Downey's penis rubbed against or between C.C.'s buttocks.

The State argues there was sufficient evidence to support conviction despite the lack of direct evidence showing actual contact between C.C.'s anus and Downey's penis because it did not need to prove penetration. While proof of anal penetration may not be required to convict of child molesting by deviate sexual conduct, Crabtree v. State, 547 N.E.2d 286, 291 (Ind.Ct.App.1989), for an act to "involve" the anus there must be contact with the anus. Cf. Knowlton v. State, 178 Ind. App. 420, 427 n. 4, 382 N.E.2d 1004, 1009 n. 4 (1978)

(acknowledging in dicta that the act of fellatio did not require penetration and could be accomplished by a touching). In this case, there was evidence of contact only with the buttocks—not with the anus. To hold that a person could commit deviate sexual conduct without contact with the anus would yield a result surely not intended by the legislature.

Additionally, the State argues because the anus lies between the buttocks, a jury could reasonably infer an act involving the anus. Although it may be undesirable to require the child witness to articulate with anatomical precision the nature of the contact in a trial for child molesting by deviate sexual conduct, cf. Spurlock v. State, 675 N.E.2d 312, 315 (Ind.1996)

(discussing why a detailed anatomical description of penetration for purposes of supporting a conviction of child molesting by sexual intercourse was both unnecessary and undesirable), it remains necessary that the State prove all the elements of the offense. In this case, an act involving the anus is an element. Certainly, upon questioning, a child C.C.'s age could differentiate between her buttocks and her anus; and here, all who testified on the subject, including the victim, stated only that Downey rubbed his penis against or between her buttocks. We find the evidence insufficient to permit a jury to infer beyond a reasonable doubt that Downey engaged in an act involving his penis and C.C.'s anus when the only evidence presented at trial was that Downey rubbed his penis against or between her buttocks.

In Shackelford v. State, 622 N.E.2d 1340, 1344 (Ind.Ct.App. 1993), we reversed a conviction of child molesting by deviate sexual conduct because the victim's testimony made it impossible for the jury to make a finding beyond a reasonable doubt. The victim testified Shackelford had touched one of her "private parts" with his penis, that he had kissed her private parts, and that she had kissed his private parts. In describing her private parts, the victim included her breasts. She was never asked to define what she meant when she referred to Shackelford's private parts. Though it was clear that an inappropriate touching or fondling took place, the evidence was not sufficient to permit a jury to infer beyond a reasonable doubt that Shackelford had engaged in an act involving his penis and her mouth or...