T.G. v. State

• Decision Date: 31 January 2014
• Docket Number: No. 49A05–1305–JV–238.,49A05–1305–JV–238.
• Citation: 3 N.E.3d 19
• Parties: T.G., Appellant–Respondent, v. STATE of Indiana, Appellee–Petitioner.
• Court: Indiana Appellate Court

3 N.E.3d 19

T.G., Appellant–Respondent,

v.STATE of Indiana, Appellee–Petitioner.

No. 49A05–1305–JV–238.

Court of Appeals of Indiana.

Jan. 31, 2014.

Karen Celestino–Horseman, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

T.G., a minor, appeals from his adjudication as a juvenile delinquent based on the trial court's finding that he committed an act that would be class C felony child molesting if committed by an adult. On appeal, he argues that the evidence is insufficient to support the trial court's finding and that the child molesting statute is unconstitutionally vague as applied to him. Concluding that the evidence is sufficient and that the statute is not unconstitutionally vague, we affirm.

Facts and Procedural History

The facts most favorable to the true finding follow. T.G.'s mother (“Mother”) operated a daycare center from her home. Mother's boyfriend watched the children when she had to leave the daycare. In August of 2012, T.G. was eleven years old. During that summer, T.G. and his three sisters stayed at home during the daycare hours. Six-year-old T.A.G. attended the daycare along with her siblings, including her older sister T.M.

During daycare hours, the children stayed predominantly in the front room where there was a couch, a chaise lounge, a television, and toys. Mother or her boyfriend were always in the room with the children. T.A.G. did not play with T.G., but sometimes they watched television. When T.A.G. went to the restroom down the hallway, T.G. would kiss her on her lips with his mouth open, which she did not like. Tr. at 22. On or about August 3, 2012, T.G. and T.A.G. were sitting on the chaise lounge watching television. T.G. “kept telling [T.A.G.] to touch his private part.” Id. at 21. She put her hand in his pants and touched his private part. T.G. put his hand inside her underwear and rubbed the part of her body where she peed. Id. at 24. Mother and T.M. were sitting on the couch, which was about four feet from the chaise lounge, but neither saw these acts occur. This was not the first time T.G. had put his hand inside T.A.G.'s underwear and touched her genitals. Id.

At some point, T.M. told Mother's boyfriend that T.G. and T.A.G. kissed. He informed Mother, and Mother told T.A.G.'s mother. Detective Chris Lawrence, a child abuse detective with the Indianapolis Police Department, investigated the case and interviewed T.G. During the interview, T.G. stated that one day he kissed T.A.G. on the cheek after she repeatedly asked him to and that T.A.G. had asked him to touch her vagina when they were sitting on the chaise lounge watching television but he did not.¹

The State alleged that T.G. was a delinquent child because he committed three acts that would constitute one class B felony and two class C felony child molestations if committed by an adult. Following a factfinding hearing, the trial court entered a true finding that T.G. committed an act that would constitute class C felony child molesting if committed by an adult. T.G. appeals.

Discussion and Decision

I. Sufficiency of the Evidence

Our standard of review for claims of insufficient evidence with respect to juvenile delinquency adjudications is well settled:

We neither reweigh the evidence nor judge the credibility of witnesses. The State must prove beyond a reasonable doubt that the juvenile committed the charged offense. We examine only the evidence most favorable to the judgment along with all reasonable inferences to be drawn therefrom. We will affirm if there exists substantive evidence of probative value to establish every material element of the offense. Further, it is the function of the trier of fact to resolve conflicts in testimony and to determine the weight of the evidence and the credibility of the witnesses.

K.D. v. State, 754 N.E.2d 36, 38–39 (Ind.Ct.App.2001) (citations omitted).

To sustain a true finding that T.G. committed an act that would constitute class C felony child molesting if committed by an adult, the State was required to prove beyond a reasonable doubt that T.G. with T.A.G., a child under fourteen years of age, performed or submitted to fondling or touching with the intent to arouse or satisfy the sexual desires of T.G., who is older than T.A.G. SeeInd.Code § 35–42–4–3(b); Appellant's App. at 19.

T.G. presents two challenges to the sufficiency of the evidence. First, he argues that the evidence is insufficient to establish that he submitted to fondling or touching with T.A.G. Here, T.A.G. testified that T.G. touched her vagina and she touched his penis. “The uncorroborated testimony of a single witness may suffice to sustain the delinquency adjudication.” D.W. v. State, 903 N.E.2d 966, 968 (Ind.Ct.App.2009), trans. denied. T.G.'s argument that neither Mother nor T.M. saw the alleged acts and that he never admitted that he touched T.A.G. during his interrogation is merely an invitation to reweigh the evidence and judge witness credibility, which we will not do.

Second, T.G. contends that the evidence is insufficient to establish that the touching or fondling was committed with the intent to arouse or satisfy his sexual desires. He argues that he was only eleven years old when he committed the offense and that the evidence that is sufficient to establish intent to arouse or satisfy sexual desire in the case of an adult perpetrator is insufficient in the case of a child perpetrator. We observe that

[m]ere touching alone is not sufficient to constitute the crime of child molesting. 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. The intent element of child molesting may be established by circumstantial evidence and may be inferred from the actor's conduct and the natural and usual sequence to which such conduct usually points.

Bowles v. State, 737 N.E.2d 1150, 1152 (Ind.2000) (citations omitted). Further, the “intent to gratify required by the statute must coincide with the conduct; it is the purpose or motivation for the conduct.”

DeBruhl v. State, 544 N.E.2d 542, 546 (Ind.Ct.App.1989). T.G. asserts that a “sexually mature adult understands that the feelings are sexual in nature and has the knowledge and experience to intentionally act upon those feelings,” but eleven-year-old T.G. “could just as likely have been experimenting and testing his own sexual development, touching someone else for the first time without understanding or knowing what it might lead to, i.e., arousal or satisfaction.” Appellant's Br. at 16.

The State argues that “ ‘the intent to arouse or satisfy sexual desires required to support a class C felony child molesting conviction may be inferred from evidence that the accused intentionally touched a child's genitals.’ ” Appellee's Br. at 8 (quoting Spann v. State, 850 N.E.2d 411, 414 (Ind.Ct.App.2006)). Spann appealed his two convictions for class C child molesting, arguing that there was insufficient evidence that he touched the victim with intent to arouse or satisfy his sexual desires. Thirteen-year-old K.S. was a friend of Spann's nephew. K.S. was spending the night with his friend at Spann's home. When it was K.S.'s turn to take a shower, he discovered that Spann was already naked in the shower. Spann told K.S. to disrobe and get in the shower. Spann washed K.S.'s body, including his penis. A few days later, when K.S. was spending the night again, Spann told K.S. to sleep with him. When K.S. got into bed, Spann put his leg over K.S.'s legs and put his hand down his pants and touched K.S.'s penis. The Spann court concluded that there was sufficient evidence to support Spann's convictions. Id.;but cf. J.H. v. State, 655 N.E.2d 624, 626 (Ind.Ct.App.1995) (reversing delinquency adjudication of twelve-year-old female where she used her finger to flick two boys, ages four and five, on the penis while they were fully clothed because “there is no natural consequence associated with a twelve-year-old girl flicking little boys on the penis hard enough to hurt them. It is certainly mean, and it might constitute battery, but it alone is insufficient to amount to child molesting.”), trans. denied (1996). Spann was an adult, and therefore his case does not deal with the question that T.G. presents; that is, because children may experiment by looking at and touching another child's genitals, it is unreasonable to infer intent to satisfy or arouse sexual desire solely from the fact that the child intentionally touched another child's genitals.

This Court has held that “the Legislature intended that minors under the age of fourteen may be adjudged to be juvenile delinquents under the child molesting statute.” W.C.B. v. State, 855 N.E.2d 1057, 1061 (Ind.Ct.App.2006) (citing State v. J.D., 701 N.E.2d 908, 910 (Ind.Ct.App.1998)), trans. denied (1999). However, “ ‘in situations where there clearly is no criminal intent, such as where very young children engage in innocent sexual play, an allegation of juvenile delinquency based upon such play would be inappropriate.’ ” Id. (quoting J.D., 701 N.E.2d at 909–10). When a child is accused of child molestation, evidence that the accused intentionally touched the younger child's genitals may not be, by itself, sufficient to establish that the touching was committed with the intent to arouse or satisfy sexual desire. Although “the intent to arouse or satisfy sexual desires required to support a class C felony child molesting conviction may be inferred from evidence that the accused intentionally touched a child's genitals,” Spann, 850 N.E.2d at 414 (emphasis added), our standard also provides that the “intent element of child molesting may be established by circumstantial evidence and may be inferred from the actor's conduct and the natural and usual sequence to...