Van Lian, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Van Lian appeals his conviction for child molesting as a level 1 felony. He challenges the trial court's denial of his motion for a directed verdict. We affirm.

Facts and Procedural History

[2] In July 2021, R.L. stayed at Lian's house while her mother went grocery shopping.¹ R.L. and one of Lian's children watched television in the basement. Lian entered the basement and sat on the couch next to R.L. A blanket covered R.L.’s lap. Lian placed his arm around R.L.’s shoulder and began “groping [her] chest” with his hand on top of her clothes. Transcript Volume III at 135. Lian “went down towards [R.L.’s] stomach, and ․ slipped his hand under [her] shorts, and then that's when he started rubbing [her] clitoris in the circular motion.” Id. Lian's hand was underneath R.L.’s underwear. R.L. felt “super uncomfortable ․ having someone else's fingers inside of [her].” Id. at 137. “[W]hen he wouldn't stop, [R.L.] forced [her]self up and then ․ quickly went upstairs.” Id. R.L. saw that her family had arrived and rushed out the door and to their vehicle. R.L. cried and told her mother that Lian touched her “private part.” Transcript Volume IV at 17. Lian denied touching R.L.’s private part. In September or October 2021, R.L. attended a body safety presentation at school and indicated that she had been touched at a friend's house. A school social worker contacted the Department of Child Services.

[3] On February 28, 2022, the State charged Lian with: Count I, child molesting as a level 1 felony; and Count II, child molesting as a level 4 felony.² In September 2024, the court held a jury trial. During direct examination, the prosecutor and R.L. had the following exchange:

Q At some point after that, did his hands -- or did he touch you anywhere else?

A So after, like, at least 40 seconds after, like, touching my chest, he went down towards my stomach, and then he started, like, rubbing it. And then when he went down further, he went -- like, he slipped his hand under my shorts, and then that's when he started rubbing the clitoris in the circular motion.

Q I want to break that down a little bit. You said he moved to your stomach. Was he touching your stomach on top of your clothes, underneath your clothes, or something else?

A He was touching it over my clothes.

Q Over your clothes. You said that he then took -- was it his hand -- and went under your pants?

A Yes.

Q Was that underneath your pants, your underwear, or something else?

A It was underneath my underwear.

Q You said that he then was touching -- was it your clitoris?

A Uh-huh.

Q And he was going in a circular motion. Was he saying anything to you at this time?

A I don't think so. Like, I can't recall any -- anything -- or him saying anything.

Q Was this -- were you under a blanket at this time?

A Yes.

Q And once he was touching your vagina, did he do anything else?

A I mean, he was -- his hands -- like, his fingers -- he tried to push inside of me, but I got away before he could do anything else.

* * * * *

Q I'm going to show you what's been marked for identification as State's Exhibit 1. Can you circle where [Lian] touched your vagina on that State's exhibit.

* * * * *

Q Okay. I'm going to start with this top circle at the top. Is that where you said that he was going in a circular motion?

A Yes.

Q And then this circle down at the bottom, what was he doing there?

A He was, like, trying to push his fingers, like, towards -- so he was just trying to push his fingers in.

Q Okay. And do you remember how many fingers?

A I think he started out with one, and then he tried to go for another, but I just got up.

Q And what was it feeling like when he was trying to put it in? Was he doing any motions with his hand?

A He wasn't doing any, like, motions. Like, it was almost like he was trying to force his fingers inside me.

Q And what did that feel like for you?

A It felt like total hell. Like, it was really uncomfortable. Like, because at the time, I didn't even know, like, what it was called, and it was super uncomfortable, like, having someone else's fingers inside of me besides myself, like, because --

Q You mentioned earlier that you tried to get away. Were you able to?

A Yes.

Q What did you do?

A So at first when he started doing those, I scoot -- I scoot like -- I scoot closer to J. And then when he wouldn't stop, I like just -- I forced myself up and then I quickly went upstairs.

Transcript Volume III at 135-137.

[4] On cross-examination of R.L., the following exchange occurred:

Q And then I believe that you testified a few moments ago that he went down to your pants and began rubbing your clitoris in a circular motion?

A Yes.

Q And this is all still going on while you're hip to hip with J.?

A Yes.

Q And I think you told the interviewer at DCS that this went on for about a minute straight; is that correct?

A Yes.

Q And that he was wiggling two of his fingers in you for a minute straight?

A Yes.

Id. at 151. After the State rested, Lian's counsel moved for a directed verdict on both counts, and the court denied the motion. The jury found Lian guilty as charged. The court sentenced Lian to concurrent terms of thirty years on Count I and six years on Count II.

Discussion

[5] Lian asserts that the trial court should have granted his motion for a directed verdict on Count I because the State failed to provide sufficient evidence to convict him of child molesting as a level 1 felony.³ He argues, “[n]one of R.L.’s testimony establishes a penetration, and on two occasions R.L. affirmatively states she got up before Lian was able to penetrate her.” Appellant's Brief at 10. He argues that, “[i]n totality, R.L.’s testimony is clear, [he] tried to push a finger or fingers inside he[r], but she got up and walked away before there was penetration.” Id.

[6] The State argues that “Lian penetrated R.L.’s external genitalia when he rubbed her clitoris.” Appellee's Brief at 8. It argues that R.L. testified that she was uncomfortable “having someone else's fingers inside of [her].” Id. (citing Transcript Volume III at 137). It also argues “the factfinder could have reasonably concluded that R.L. was referring to Lian's penetration of her external genitalia when she described the discomfort of having someone's fingers inside of her, and that R.L.’s testimony regarding Lian's ‘tr[ying]’ to force his fingers was a reference to her internal genitalia.” Id. at 9.

[7] Ind. Trial Rule 50(A) provides, “[w]here all or some of the issues in a case tried before a jury ․ are not supported by sufficient evidence ․ , the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.” This Court's review of the denial of a motion for directed verdict or judgment on the evidence is essentially the same as review of a claim of insufficient evidence to support a conviction. Fry v. State, 25 N.E.3d 237, 248 (Ind. Ct. App. 2015), trans. denied. We do not reweigh the evidence or judge the credibility of the witnesses. Id. We consider only the probative evidence and reasonable inferences supporting the verdict. Id. We affirm if the probative evidence and reasonable inferences could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated testimony of one witness is sufficient to sustain a conviction, even if the witness is the victim. Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991). Generally, “[i]nconsistencies in testimony go to its weight and credibility, the resolution of which is the jury's province.” Taylor v. State, 681 N.E.2d 1105, 1111 (Ind. 1997).

[8] Ind. Code § 35-42-4-3(a) provides “[a] person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to ․ other sexual conduct (as defined in IC 35-31.5-2-221.5) commits child molesting” and the offense is a level 1 felony if it is committed by a person at least twenty-one years of age. Ind. Code § 35-31.5-2-221.5 provides that “Other sexual conduct” means “an act involving ․ the penetration of the sex organ ․ of a person by an object.”

[9] In Boggs v. State, the Indiana Supreme Court provided guidance on the meaning of “penetration” for purposes of “other sexual misconduct.” 104 N.E.3d 1287, 1288 (Ind. 2018). In that case, S.H. “testified that Boggs put his finger ‘in the folds of her vagina’ and touched her clitoris.” Id. The Court held that “[p]recedent makes clear that proof of the ‘slightest penetration’ of the female sex organ, including penetration of the external genitalia, is sufficient to sustain a conviction for child molestation based on sexual intercourse.” Id. (citing Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996); Dinger v. State, 540 N.E.2d 39, 40 (Ind. 1989)). The Court further held that “proof of the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient to demonstrate a person performed other sexual misconduct with a child.” Id. at 1289. The Court found the evidence demonstrated that Boggs committed other sexual misconduct with S.H. and affirmed his conviction for child molesting as a level 1 felony. Id.

[10] The record reveals that R.L. testified that Lian placed his hand under her underwear and “started rubbing the clitoris in the circular motion.” Transcript Volume III at 135. R.L. stated “his fingers -- he tried to push inside of me,” he was “trying to push his fingers in,” “I think he started out with one, and then he tried to go for another,” “he was trying to force his fingers inside me,” and “it was super uncomfortable, like, having someone else's fingers inside of me.” Id. at 136-137. When asked on cross-examination if Lian “was wiggling two of his fingers in you for a minute straight,” R.L. replied “Yes.” Id. at 151.

[11] Based on R.L.’s testimony, we conclude that the State presented evidence of a probative nature from which a reasonable trier of fact could have found that Lian committed child molesting as a level 1 felony. See Hale v. State, 128 N.E.3d 456, 463 (Ind. Ct. App. 2019) (“While K.F. did not know whether Hale's finger had penetrated her vagina, again, penetration of the vaginal canal is not required to prove Level 1 felony child molesting as charged here. The State need only have proven penetration of K.F.’s external genitalia. And it would have been physically impossible for Hale to touch any part of K.F.’s vagina without having first penetrated her vulva, or external genitalia.”) (citation omitted), trans. denied; Morales v. State, 19 N.E.3d 292, 297-298 (Ind. Ct. App. 2014) (rejecting the defendant's argument that penetration of the female external genitalia does not constitute penetration of the female sex organ), trans. denied.

[12] For the foregoing reasons, we affirm the trial court's denial of Lian's motion for a directed verdict and affirm his conviction for child molesting as a level 1 felony.

[13] Affirmed.

FOOTNOTES

1.   R.L. indicated that, at the time of trial in September 2024, she was eleven years old. R.L.’s mother testified that her “husband's father and Van Lian's wife mother [sic] are siblings” and that they grew up in the same village in Burma. Transcript Volume IV at 13.

2.   Count I alleged that Lian, “a person at least twenty-one (21) years of age, did knowingly or intentionally perform other sexual conduct (as defined in Indiana Code Section 35-31.5-2-221.5) with R.L., a child under the age of fourteen years (14)[.]” Appellant's Appendix Volume II at 23.

3.   Lian does not challenge his conviction for child molesting as a level 4 felony.

Brown, Judge.

Chief Judge Altice and Judge Tavitas concur. Altice, C.J., and Tavitas, J., concur.