Scott v. State

• Decision Date: 18 July 2002
• Docket Number: No. 35A05-0109-CR-395.,35A05-0109-CR-395.
• Citation: 771 N.E.2d 718
• Parties: Murphy SCOTT, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

771 N.E.2d 718

Murphy SCOTT, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 35A05-0109-CR-395.

Court of Appeals of Indiana.

July 18, 2002.

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Murphy Scott appeals his convictions for two counts of Child Molesting, as Class A felonies¹ for deviate sexual conduct, and three counts of Child Molesting, as Class C felonies² for fondling. He presents several issues for our review, which we restate as:

(1) whether the evidence was sufficient to sustain the convictions for Class A Child Molesting;

(2) whether the trial court erred in instructing the jury;

(3) whether his convictions constitute Double Jeopardy; and

(4) whether the trial court erred in sentencing.

We affirm.

The facts most favorable to the judgment reveal that during 1999 and 2000, Scott's children, T.M.S. (a daughter born on June 4, 1989), K.L.S. (a daughter born on May 25, 1991), and M.S. (a son born on April 15, 1994), were living in a foster home. During this time, the children were having unsupervised overnight visitation with Scott. During one of these unsupervised visitations around Christmas of 1999, Scott locked himself in a bedroom with K.L.S. and put his hands and head down K.L.S.'s shirt and touched her breasts. He also put his hands down her pants and put his finger in her "private." Transcript at 31. K.L.S. explained that she used the restroom with her "private." Scott rubbed his penis and also forced K.L.S. to rub her hand up and down his penis. Scott ejaculated and rubbed the semen onto his chest.

On a second occasion, Scott again took K.L.S. into a bedroom. Once again, he put his head and hands down her shirt and touched her breasts and then proceeded to put his hands down her pants and inserted his finger into her "private area." Tr. at 36. M.S. also testified that on one occasion, Scott put his hands down the front of M.S.'s pants and touched his private, which M.S. stated he used to go to the bathroom.

The jury found Scott guilty on all five counts of Child Molesting, and the trial court sentenced Scott to fifty (50) years on each of the two Class A felonies and ordered them to be served consecutively. The trial court also sentenced Scott to eight (8) years on each Class C felony and ordered the sentences to run concurrently to each other and to the sentences for the Class A felonies.

I Sufficiency of the Evidence

Our standard of review for a sufficiency of the evidence claim is well settled. We will not reweigh the evidence or judge the credibility of the witnesses. VanMatre v. State, 714 N.E.2d 655, 657-658 (Ind.Ct.App.1999). We will consider only the evidence which supports the conviction and any reasonable inferences which the trier of fact may have drawn from the evidence. Id. at 657. We will affirm the conviction if there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt. Id. at 658.

In order for a jury to properly find Scott guilty of Class A Child Molesting, the State was required to prove that Scott, a person at least twenty-one (21) years of age, performed or submitted to sexual intercourse or deviate sexual conduct with a child under fourteen (14) years of age. See I.C. § 35-42-4-3(a). Deviate sexual conduct is defined as, "an act involving: (1) A sex organ of one person and the mouth or anus of another person; or (2) The penetration of the sex organ or anus of a person by an object." Ind.Code § 35-41-1-9 (Burns Code Ed. Repl.1998). Proof of the slightest penetration is sufficient to sustain convictions for child molesting. Spurlock v. State, 675 N.E.2d 312, 315 (Ind.1996). A conviction for child molesting will be sustained when it is apparent from the circumstances and the victim's limited vocabulary that the victim described an act which involved penetration of the sex organ. See Short v. State, 564 N.E.2d 553, 558 (Ind.Ct.App. 1991)

. The unfamiliarity of a young victim with anatomical terms does not make her incompetent to testify when the facts are explained in simple or childlike language which the judge and jury can understand. Id. at 558-59. Also, a detailed anatomical description of penetration is unnecessary. Spurlock, 675 N.E.2d at 315.

Scott contends that the evidence presented by the State did not establish beyond a reasonable doubt that his finger penetrated K.L.S.'s "sex organ" for the purpose of establishing deviate sexual conduct. He directly attacks K.L.S.'s characterization of the part of her body which was touched and penetrated, claiming that the manner in which she discussed the committed act did not clearly establish that her "sex organ" had been penetrated.

During direct examination of K.L.S., the following colloquy took place:

"Q When he put his hands down your pants[,] what part of your body did he touch then?

A My private.

Q Your private. And so everybody is on the same page and we all know what you mean, what do you do with your private?

A Use the restroom.

Q [K.L.S.], when your dad put his hands in your pants and touched your private, did he ever put anything in your private?

A Yes.

Q What?

A His finger." Tr. at 31-32.

Scott asserts that K.L.S.'s claim, that the part of her body which was penetrated by his finger was the part of her body which she used to go to the restroom, precludes the jury from finding that he penetrated her "sex organ" with his finger. Scott claims that K.L.S.'s testimony implies that it was her urethra which was penetrated, and not her vagina. He also argues in his brief that the urethra is not considered a part of the female "sex organ." For support, he cites to Gray's Anatomy and several cases in which it was held that the testimony of the child did not support a conviction for child molesting because no penetration of the "sex organ" was proved. See, e.g., Spurlock, 675 N.E.2d at 315

.

Scott correctly notes that "sex organ" is not defined by statute. However, case law has addressed the meaning of "sex organ" on several occasions. Of most direct import is the meaning which was given to "sex organ" by this court in Short. In Short, this court held that in determining whether an individual had engaged in sexual intercourse for the purpose of establishing the crimes of child molesting and incest, it was not necessary to prove that the vagina was penetrated. 564 N.E.2d at 559. Rather, this court, relying in part upon the decisions of courts in other jurisdictions, determined that the penetration of the external genitalia was sufficient to sustain a conviction. Id. The female external genitalia is defined as "the vulva in the female." Stedman's Medical Dictionary 641 (25th ed. 1990). The vulva is defined as "the external genitalia of the female, comprised of ... the opening of the urethra and of the vagina." Id. at 1729-30. From this definition, it is clear that the opening to the urethra is located within the anatomy of a female which is referred to as the external genitalia. Therefore, any reference to the part of the female anatomy which is used to urinate also refers to the external genitalia, and consequently, to the "sex organ."

Applying the above definition to the testimony of K.L.S., the evidence is sufficient to sustain a conviction for child molesting based upon deviate sexual conduct. Upon testifying that Scott inserted his finger into her "private," and that she used her "private" to go to the restroom, K.L.S. provided information upon which the jury could determine that Scott had inserted his finger into her external genitalia. While Scott argues that this case is similar to Spurlock, he fails to recognize that the holding in Spurlock rested upon the determination that the victim did not testify that any penetration occurred, not that penetration occurred but in an anatomical part which was not part of the "sex organ." See 675 N.E.2d at 315. This evidence is sufficient to sustain a conviction for Child Molesting based upon deviate sexual conduct.

II Jury Instructions

Instruction of the jury is left to the sound discretion of the trial court and we will not disturb the judgment of the trial court absent an abuse of discretion. Louallen v. State, 755 N.E.2d 672, 675 (Ind.Ct.App.2001). A party must object to an erroneous instruction before the jury retires for deliberations to preserve instructional error for review. Id. When the claimed error is the failure to give an instruction, a tendered instruction is necessary to preserve error. Scisney v. State, 701 N.E.2d 847, 848 n. 3 (Ind.1998).

To avoid waiver of an issue, a party may claim fundamental error. Louallen, 755 N.E.2d at 675. The fundamental error exception is extremely narrow. Mitchell v. State, 726 N.E.2d 1228, 1236 (Ind.2000), reh'g denied. To constitute fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id. "The error `must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.'" Id. (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987)).

A. Instruction on Mens Rea

As this court held in Louallen, criminal intent is an element of child molesting. 755 N.E.2d at 676. We determined that the proper mens rea for the offense of child molesting is "intentionally." Id.³ In Jaco v. State, 760 N.E.2d 176, 180-81 (Ind.Ct.App.2001), this court also addressed the different language utilized in the child molesting statute, depending upon whether an individual was charged with "fondling or touching" or for "performing or submitting to sexual intercourse or deviate...