Sheppard v. State

• Docket Number: 24A-CR-9
• Decision Date: 06 August 2024
• Citation: Sheppard v. State, 24A-CR-9 (Ind. App. Aug 06, 2024)
• Parties: Joshua Q. Sheppard, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

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Joshua Q. Sheppard, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff

No. 24A-CR-9

Court of Appeals of Indiana

August 6, 2024

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Grant Superior Court The Honorable Jeffrey D. Todd Judge Trial Court Cause No. 27D01-1909-F4-30

ATTORNEY FOR APPELLANT

Jerry T. Drook

Marion, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Andrew Kobe

Deputy Attorney General

Indianapolis, Indiana

MEMORANDUM DECISION

Tavitas, Judge.

Case Summary

[¶1] Joshua Sheppard, Jr., appeals his conviction for child molesting, a Level 4 felony. Sheppard argues that insufficient evidence supports his conviction. We, however, find the evidence sufficient. Accordingly, we affirm.

Issue

[¶2] Sheppard raises one issue on appeal, which we restate as whether sufficient evidence supports Sheppard's conviction for child molesting, a Level 4 felony.

Facts

[¶3] In 2018, N.T. lived with her mother, M.E. ("Mother"), and her father, L.T. ("Father"). The house was having plumbing issues, which occasionally flooded the basement. Mother and Father hired a contractor to do some repairs on the plumbing. Sheppard was a family friend who assisted the contractor. On several occasions, Sheppard came to the house alone to work on the repairs. Sheppard had dyed his hair blue around this time and was approximately nineteen or twenty years old.

[¶4] In October 2018, on the day of N.T.'s fourth birthday, Sheppard was at the house working on some repairs. Mother and Father asked Sheppard to watch N.T. in the living room while they went upstairs to "take a shower." Tr. Vol. II p. 30. Sheppard was alone with N.T. in the living room for thirty to forty-five minutes.

[¶5] In mid-December 2018, N.T. disclosed to Mother that "[t]he man with blue hair" had inappropriately touched her. Id. at 27. Mother then filed a police report against Sheppard. Mother believed that the inappropriate touching occurred in the living room on N.T.'s birthday when Mother and Father asked Sheppard to watch her.

[¶6] Later that month, N.T. participated in a forensic interview with the Child Advocacy Center. The forensic interviewer showed N.T. diagrams of the male and female anatomy, and N.T. identified the vagina as "butt." State's Ex. 3 at 11:40, 12:40. N.T. said that a man named "Josh" touched her "butt in the front" and that he "has blue hair." Id. at 14:00. N.T. pointed to the genital area on the diagram and her own body to indicate where she was touched. Id. at 14:15. At other times during the interview, N.T. said that: (1) she was three years old, although she had recently turned four; (2) she had two sisters, although she had no siblings; (3) the touching occurred at the man's "mommy's" house but later that it occurred in the basement of N.T.'s house; (4) Sheppard wanted N.T. to touch his genitals; and (5) a "camera" that a "cop got" was present during the touching. State's Ex. 3 at 1:40, 6:50, 15:06, 15:43, 17:00.^[1] [¶7] On September 24, 2019, the State charged Sheppard with child molesting, a Level 4 felony.^[2] A bench trial commenced on November 8, 2023, when N.T. was nine years old.

[¶8] N.T. testified but was emotional and had some difficulty providing answers to the prosecutor's questions. She remembered little if anything from the forensic interview. N.T., however, answered in the affirmative when asked if someone touched her, and she identified Sheppard, whom she knew as "Josh," in court as the man who touched her. Tr. Vol. II p. 111. She also answered in the affirmative that Sheppard touched her "private area," which was an area "normally covered by underwear," that he used his hand to touch her, and that the touching made her feel "[u]ncomfortable." Id. at 111, 115, 113. N.T., however, testified that Sheppard's skin did not "make contact with [her] skin." Id. at 124. When asked about her statements from the interview, N.T. testified that Sheppard did not ask her to touch his body and that no camera was present during the touching. The video of the forensic interview was admitted as State's Exhibit 3.

[¶9] The trial court took the matter under advisement to review the evidence, including the video of the forensic interview. The next day, the trial court announced its finding that Sheppard was guilty of child molesting, a Level 4 felony. The trial court entered judgment of conviction and sentenced Sheppard to eleven years with two years suspended to probation. Sheppard now appeals.

Discussion and Decision

[¶10] Sheppard argues that insufficient evidence supports his conviction for child molesting, a Level 4 felony. We conclude, however, that the evidence is sufficient.

[¶11] Sufficiency of evidence claims "warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility." Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020) (citing Perry v. State 638 N.E.2d 1236, 1242 (Ind. 1994)). "[W]hen appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling." Ruiz v. State, 88 N.E.3d 219, 223 (Ind.Ct.App. 2017) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)). We consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. Powell, 151 N.E.3d at 262 (citing Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). "We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt." Id. at 263. We affirm the conviction "'unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.'" Sutton v. State, 167 N.E.3d 800, 801 (Ind.Ct.App. 2021) (quoting Drane, 867 N.E.2d at 146-47).

[¶12] Here, Sheppard was convicted of child molesting, a Level 4 felony. This offense is governed by Indiana Code Section 35-42-4-3(b), which provides:

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 Level 4 felony.

[¶13] Sheppard argues that the evidence was insufficient to prove that he touched N.T. with the requisite intent. "[M]ere touching alone is insufficient to constitute child molesting." Ramirez v. State, 186 N.E.3d 89, 98 (Ind. 2022). Rather, the State must also "prove beyond a reasonable doubt that the act of touching was accompanied by the specific intent to arouse or satisfy sexual desires." Id. "An intent to arouse or to satisfy sexual desires may be inferred from evidence that the defendant intentionally touched the child's genitals." Holden v. State, 149 N.E.3d 612, 616 (Ind.Ct.App. 2020) (citing Winters v. State, 727 N.E.2d 758, 761 (Ind.Ct.App. 2000), trans. denied), trans. denied).

[¶14] Here, N.T. identified Sheppard as a man who touched her "private area," which was an area "normally covered by underwear," using his hand, which made her feel uncomfortable. Tr. Vol. II pp. 111, 115. Although N.T. testified that Sheppard did not make contact with her skin, this is not required by the child molesting statute. See, e.g., Cruz Angeles v. State, 751 N.E.2d 790, 797-98 (Ind.Ct.App. 2001) (finding evidence sufficient to support child molesting conviction based on defendant's touching of the victims' breasts over clothing), trans. denied.

[¶15] Sheppard relies on D.P. v. State, 80 N.E.3d 913 (Ind.Ct.App. 2017), to demonstrate that the evidence here was insufficient to support the intent element. In that case D.P. appealed his juvenile adjudication for child molesting, a Level 4 felony if committed by an adult, based on events that occurred when he was age ten and the victim was age six. Id. at 916. A panel of this Court found the evidence insufficient because, although the victim testified that the defendant touched her "hooha" and buttocks with his hand over her...