Shrum v. State, Court of Appeals Case No. 49A05-1604-CR-829
| Decision Date | 30 November 2016 |
| Docket Number | Court of Appeals Case No. 49A05-1604-CR-829 |
| Parties | Jeremy Shrum, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
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.
ATTORNEY FOR APPELLANT
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Gregory F. Zoeller
Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
Appeal from the Marion Superior Court
The Honorable Lisa F. Borges, Judge
Case Summary [1] Jeremy Shrum molested his nine-year-old, developmentally-delayed daughter, S.S. The jury found him guilty as charged of three counts of child molesting, two as Level 1 felonies and one as a Level 4 felony. Due to double jeopardy concerns, the trial court entered a judgment of conviction only on Count I, a Level 1 felony. Shrum contends that his conviction is not supported by sufficient evidence and that the trial court abused its discretion in sentencing him.
[2] We affirm.
[3] S.S. was born four months premature in August 2005. She suffered two strokes shortly after her birth, has cerebral palsy, and the right side of her brain never fully developed. S.S. also began having seizures around the age of eight. S.S. is developmentally delayed. She lives with her mother (Mother), step-father, two sisters, and younger brother. Shrum is the father of S.S., her older sister (C.S.), and her younger brother (J.S.). The three children are all close in age. At some point after Shrum and Mother ended their relationship, Shrum began exercising parenting time with his children on alternating weekends. Mother allowed additional weekends when requested by Shrum.
[4] On Wednesday, April 29, 2015, Shrum sent Mother a text message asking to have the children for the upcoming weekend. Mother agreed. While at Shrum's house that Saturday night, May 2, 2015, S.S. slept on the couch in the living room, as she often did. C.S. and J.S. slept in the bottom bunk in Shrum'sbedroom. Shrum's father also lived in the house and was asleep in his own bedroom.
[5] At some point during the night, S.S. awoke to find Shrum on top of her. S.S. was on her back and her pajama pants and pull-up diaper had been removed. Shrum had on boxers, a shirt, and pants at the time. He told S.S. to go in the bedroom where C.S. and J.S. were sleeping. Upon entering the bedroom, S.S. saw a blanket on the floor. Shrum followed her into the bedroom, placed her pants and pull-up on the dresser, and instructed her to lay on the blanket. Although still wearing pants, Shrum exposed his penis at some point.
[6] Shrum spread S.S.'s legs apart and lifted them as he told S.S. to scoot up. He then placed one of his hands on the bed and another on the floor and with his knees on the ground leaned over his nine-year-old daughter. According to S.S., he then told her to "grab his wiener" and "stick it in [her] pee hole." Transcript at 37. S.S. tried to comply but his "wiener" would not go in her "pee hole".1 She testified, however, that she felt his "wiener" touch her "pee hole" and that it felt "really gross." Id. at 38. S.S. indicated that her "pee hole" felt wet. Shrum also attempted on his own to put his "wiener" in while supporting himself above her. He became mad when it was not going in and was "yelling at [S.S.] in a quiet voice." Id. at 71. His hand then slipped from the bed and hit S.S. near her eye. She began to cry, which caused her sister and brother to stir.
Shrum promptly stood up and told S.S. to go into the bathroom and put her pull-up and pants back on.
[7] The following day, C.S. overheard Shrum apologizing and asking S.S. not to tell anyone. He also bought a pool for the children to use on Sunday. While alone swimming with C.S., S.S. told her about the sexual abuse. Though not customary, Shrum kept the children another night. Mother picked them up at school Monday afternoon. After they were home, Mother overheard a conversation between S.S. and C.S. that led her to inquire further. S.S. told Mother what had happened, and Mother immediately called the police.
[8] On May 5, 2015, S.S. was seen by Casey O'Neal, a sexual assault nurse. When O'Neal asked S.S. if she knew why she was there, S.S. replied, Id. at 136. Thereafter, when O'Neal was positioning S.S. in stirrups for the exam, S.S. stated, "This is how daddy made me lay." Id. O'Neal did not observe any injuries to S.S.'s genital area, but S.S. did complain of pain during the vaginal exam.
[9] On May 11, 2015, the State charged Shrum with four counts: Count I, child molesting as a Level 1 felony; Count II, child molesting as a Level 1 felony; Count III, child molesting as a Level 4 felony; and Count IV, battery as a Level 5 felony. Count IV was later dismissed on the State's motion. Shrum was tried by a jury on February 22 and 23, 2016. The jury found him guilty as charged. At the sentencing hearing on March 23, 2016, the trial court vacated Counts IIand III on double jeopardy grounds and sentenced Shrum on Count I to thirty-five years in prison, with five of those years suspended to probation. Shrum now appeals his conviction and sentence. Additional facts will be provided below as needed.
[10] Shrum contends that the evidence was insufficient to support his conviction for child molesting as a Level 1 felony. Specifically, he argues that there was scant evidence of penetration because S.S. testified that, despite trying, Shrum's penis "didn't go in" and there was no medical or physical evidence of penetration. Transcript at 38.
[11] Our standard of review for sufficiency of the evidence claims is well settled. We consider only the probative evidence and reasonable inferences supporting the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh evidence, and we will affirm unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. It is not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence will be found sufficient if an inference may reasonably be drawn from it to support the conviction. Id. at 147.
[12] To obtain a conviction for Level 1 child molesting as charged, the State was required to prove that Shrum, being over the age of twenty-one, knowingly or intentionally performed sexual intercourse with S.S., a child under the age of fourteen. Ind. Code § 35-42-4-3(a)(1). The legislature has defined "sexual intercourse" as "an act that includes any penetration of the female sex organ by the male sex organ." Ind. Code § 35-31.5-2-302. "The statute does not require that the vagina be penetrated, only that the female sex organ be penetrated." Thompson v. State, 674 N.E.2d 1307, 1311 (Ind. 1996). Penetration of the external genitalia is sufficient to sustain a conviction, and "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.'" Scott v. State, 771 N.E.2d 718, 724-25 (Ind. Ct. App. 2002), trans. denied, disapproved of on other grounds by Louallen v. State, 778 N.E.2d 794 (Ind. 2002). "Proof of the slightest penetration is sufficient to sustain convictions for child molesting." Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996).
[13] Shrum likens this case to Spurlock. The victim in Spurlock was twelve years old at the time of her molestation and, according to our Supreme Court, "of an age to understand and respond to the questions" at trial. Id. at 315. She testified that the defendant tried to have sexual intercourse with her on one occasion. When asked if the defendant had put his penis inside her, the victim responded, "I don't know." Id. Although the victim testified that the defendant's penis touched her vagina, the Court observed that she "never said that it penetrated or went inside, and explicitly said that she did not know whether thatoccurred." Id. The Court also found that the victim had only a generalized understanding of the term "vagina", which "support[ed] the view that any penetration, however slight, would have been understood by [the victim] as penetration of the vagina." Id. In the absence of testimony that any penetration occurred or other evidence of penetration, the Court concluded that "the jury had no evidence from which it could find Spurlock guilty beyond a reasonable doubt of the count of child molesting that was based upon an alleged act of intercourse." Id. See also Adcock v. State, 22 N.E.3d 720, 728-29 (Ind. Ct. App. 2014) ().
[14] Here, the victim was a developmentally-disabled, nine-year-old girl. She testified that despite more than one attempt, her father's penis "didn't go in" her "pee hole". Transcript at 38. Were this all the evidence, we would be constrained to reach the same result as Spurlock. S.S. provided much more detailed testimony, however, that must not be overlooked.
[15] S.S. described how her father instructed her to lay on the ground. He then positioned S.S. with her legs bent and spread apart for easier access to her vagina. On his hands and knees, Shrum lowered his body over S.S. and told her to "grab his wiener" and "stick it in [her] pee hole." Id. at 37. S.S. tried to comply...
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