O.M., Appellant-Respondent v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] The trial court adjudicated O.M. to be a delinquent child for committing an act that, if committed by an adult, would be Level 4 felony child molesting. O.M. appeals and claims that the evidence is insufficient to support his adjudication. We find the evidence to be sufficient to support O.M.’s adjudication and, accordingly, affirm.

Issue

[2] O.M. presents one issue for our review: whether the evidence is sufficient to support his adjudication for committing what would be Level 4 felony child molesting if committed by an adult.

Facts

[3] O.M. is a boy who was born in May 2006. A.S.C. is a girl who was born in December 2012. O.M.’s mother and A.S.C.’s mother were friends, and their families often spent time together. On one such occasion, when O.M. was between the ages of thirteen and fifteen, and A.S.C. was between the ages of seven and eight,¹ O.M. told A.S.C. to come upstairs to his bedroom. A.S.C. thought that O.M. wanted to show her an action figure; instead, O.M. showed her a pornographic video depicting a nude male placing his penis in the mouth of a nude female. O.M. then told A.S.C. “to do the same thing on the video.” Id. at 26. O.M. threatened to hurt A.S.C.’s brother if she did not comply. A.S.C. knelt down and touched O.M.’s penis with her mouth. O.M. also told A.S.C. to pull her pants down, and, after she did so, O.M. touched A.S.C.’s genitals with his fingers. A.S.C. found these actions to be “disgusting,” and did not feel good. Id. at 32. O.M. then stopped, took A.S.C. back downstairs, and warned her that if she told her mother or father what had happened, he would hurt A.S.C.’s family. For years, A.S.C. told no one what had happened.

[4] Several years later, in 2023, A.S.C.’s school did a presentation about sexual abuse. A.S.C. then disclosed to her school counselor that someone had touched her. The school counselor then informed A.S.C.’s mother, which led to a police investigation. As a result, the State filed a petition on August 1, 2023, alleging that O.M. committed acts that, if committed by an adult, would be: Count I: Level 3 felony child molesting; Count II: Level 4 felony child molesting; and Count III: Level 6 felony dissemination of matter harmful to minors.

[5] The trial court held fact-finding hearings on the petition on January 24 and February 1, 2024. At the end of the second hearing, the trial court made a true finding as to Count II and not true as to Counts I and III. On March 22, 2024, the trial court entered a dispositional decree that ordered O.M. to serve probation with the special conditions of completing outpatient sexual offender counseling, completing a safety and supervision plan, and having no contact with A.S.C. O.M. now appeals.

Discussion and Decision

[6] O.M. claims that the State presented insufficient evidence to support the trial court's finding that he committed an act that would be Level 4 felony child molesting if committed by an adult.

[7] “When reviewing the sufficiency of the evidence in a juvenile adjudication, ‘we do not reweigh the evidence or judge witness credibility.’ ” B.B. v. State, 141 N.E.3d 856, 859 (Ind. Ct. App. 2020) (quoting B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018)). We consider only the evidence favorable to the trial court's decision and the reasonable inferences that can be drawn from this evidence. Id. If there is substantive evidence of probative value to establish every material element of an offense beyond a reasonable doubt, we will not disturb the adjudication. Id. (citing E.H. v. State, 764 N.E.2d 681, 683 (Ind. Ct. App. 2002)).

[8] The crime of child molesting is defined by Indiana Code Section 35-42-4-3(b) as follows:

“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.

[9] O.M. claims that the evidence is insufficient because A.S.C.’s testimony was not “direct and free from uncertainty.” Appellant's Br. p. 10. O.M. notes that there were inconsistencies between A.S.C.’s testimony and what she said during the unsworn investigatory interviews. A.S.C. explained at trial, however, that she did not tell the interviewer everything that happened because she was nervous, and she reaffirmed that she was telling the truth on the stand.

[10] O.M. also complains that some of A.S.C.’s testimony was the result of allegedly leading questions. This testimony was admitted at trial over O.M.’s objections, but he does not claim on appeal that the trial court committed any evidentiary error. Indeed, our Supreme Court has noted that courts may allow leading questions on direct examination “to develop the testimony of certain kinds of witnesses—for example, children witnesses; [and] young, inexperienced, and frightened witnesses ․” Williams v. State, 733 N.E.2d 919, 922 (Ind. 2000). Moreover, the substantive portions of A.S.C.’s testimony were not the result of leading questions, such as: where the touching took place, the threats O.M. made, the nature of the pornographic video, and O.M. touching her “private part.”² Tr. Vol. II pp. 24-26, 32.

[11] O.M. also claims that the trial court itself expressed doubts over the veracity of A.S.C.’s testimony. When advising O.M. of his right to appeal at the end of the fact-finding hearing, the trial court stated, “You will have an opportunity to appeal my decision to a higher court and they look at it ․ to see if I made some error, of if my judgment doesn't line up with the facts ․” Tr. Vol. II p. 149. And again, at the end of the dispositional hearing, the trial court advised O.M. of his right to appeal, stating, “If you would like, you have every right to appeal my decision to a higher court to determine if my decision should be reversed. If the facts don't support the finding.” Id. at 153. Contrary to O.M.’s arguments, we do not take these statements to mean that the trial court expressed doubt regarding its decision; rather, the trial court merely explained that the court on appeal would review the trial court's decision.³

[12] O.M. also claims that the State failed to present evidence of his intent to arouse or satisfy the sexual desires of A.S.C. or himself, specifically referring to his young age. As this Court noted in T.G. v. State, 3 N.E.3d 19, 24 (Ind. Ct. App. 2014), in situations where there is clearly no criminal intent, such as when “very young children engage in innocent sexual play,” “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.” Here, however, O.M. was at least thirteen years old when the incident occurred. See id. at 25 (noting that defendant was eleven years old, which is not a “very young child,” and was significantly older than the six-year-old victim).

[13] Further, the circumstances surrounding the touching support an inference that O.M. acted with the requisite sexual intent. O.M. showed A.S.C. a pornographic video depicting oral sex, then asked A.S.C. to recreate the acts in the video. O.M. told A.S.C. to remove her pants and touched her “private part” with his fingers. Id. at 26. O.M. threatened to harm A.S.C.’s brother if she did not comply, and threatened to hurt her family if she told anyone about the incident. From this, the trial court could reasonably conclude that O.M. touched A.S.C. with the intent to arouse or satisfy either his or A.S.C.’s sexual desires.

[14] In short, O.M.’s arguments are merely a request that we judge A.S.C.’s credibility and reweigh the evidence, which we may not do. A.S.C.’s testimony, which the trial court obviously credited, is sufficient to prove beyond a reasonable doubt that O.M. touched A.S.C. with the intent to arouse or satisfy the sexual desires of either A.S.C. or himself.

Conclusion

[15] The State presented sufficient evidence to support the trial court's finding that O.M. committed an act that, if committed by an adult, would be Level 4 felony child molesting. Accordingly, we affirm the trial court's judgment.

[16] Affirmed.

FOOTNOTES

1.   The delinquency petition alleged that the incident occurred “[s]ometime between December 25, 2019 and December 25, 2021[.]” Appellant's App. Vol. II p. 23. A.S.C. testified that the incident occurred when she was “[s]even or eight,” when she was in “[s]econd or third grade.” Tr. Vol. II p. 22.

2.   Thus, this case is distinguishable from Vuncannon v. State, 258 N.E.2d 639 (Ind. 1970), cited by O.M., in which our Supreme Court reversed a battery conviction because the victim could not describe the manner in which he was touched. Here, A.S.C. adequately described the manner in which O.M. touched her.

3.   O.M.’s citation to Kribs v. State, 917 N.E.2d 1249 (Ind. Ct. App. 2009), is unavailing. In that case, the trial court explicitly stated that the defendant did not act with the mens rea necessary to commit the crime. Id. at 1251. The trial court's statements here do not cast doubt on the trial court's finding.

Tavitas, Judge.

May, J., and DeBoer, J., concur.