THANG v. STATE (2024)

MEMORANDUM DECISION

[1] J Zam Khan Thang appeals his convictions for Level 1 felony and Level 4 felony child molesting. For the Level 1 felony conviction, which required proof that Thang penetrated the victim's sex organ, see Ind. Code §§ 35-42-4-3(a), 35-31.5-2-221.5(2), Thang acknowledges that the victim testified that he touched her “vagina” with his hand, see Tr. Vol. III p. 22. However, citing one specific page of the transcript, Thang argues that the victim's testimony does not “prove beyond a reasonable doubt that there was penetration.” Appellant's Br. p. 7. On that page, the State asked the victim if she remembered that in a pretrial interview she said that Thang's “finger went in a little bit?” Tr. Vol. III p. 23. The victim responded, “Uh-huh.” Id. But even if this testimony, standing alone, is insufficient to prove penetration, the victim clarified on cross-examination that she remembered Thang “actually” “put[ting] his finger in [her].” Id. at 35. This evidence, which Thang doesn't address, is sufficient to prove that Thang penetrated the victim's sex organ. Accordingly, we affirm his conviction for Level 1 felony child molesting.

[2] Thang also argues that if we affirm the Level 1 felony conviction, we should vacate the Level 4 felony conviction because it “was merely a lesser-included offense of the Level 1 felony.” Appellant's Br. p. 11. The State “does not oppose” Thang's challenge to this conviction. Appellee's Br. p. 10. We therefore remand this case to the trial court with instructions to vacate Thang's conviction and sentence for Level 4 felony child molesting.

[3] Affirmed in part and reversed and remanded in part.

Vaidik, Judge.

Weissmann, J., and Foley, J., concur.