ASSELSTINE v. STATE (2025)

MEMORANDUM DECISION

[1] Michael J. Asselstine appeals following his two convictions of Level 4 felony child molesting.¹ Asselstine argues the State presented insufficient evidence to support his convictions. We affirm.

Facts and Procedural History

[2] In 2021, Asselstine moved into a house in Indianapolis with his aunt, T.S., and her two children, S.S. and Z.H. S.S. had been born in 2012. Asselstine babysat S.S. and Z.H. when T.S. went to work. Once, near the time of S.S.’s ninth birthday, while T.S. was at work, Asselstine called for S.S. to come into the bathroom with him. S.S. went into the bathroom because she thought Asselstine “wanted to ask [her] to do something, like do the laundry, like usual.” (Tr. Vol. 2 at 68.) Asselstine then “made [S.S.] swear to take something to [her] grave.” (Id.) Asselstine pulled his pants and boxers down and asked S.S. to take off her clothes. S.S. disrobed, and Asselstine “asked [her] to touch his private.” (Id. at 68.) Asselstine then grabbed S.S.’s wrist and moved her hand to touch his penis. He also used his hand to touch her vagina.

[3] Sometime thereafter, when T.S. was away at work, Asselstine called S.S. into the upstairs bathroom. When T.S. went into the bathroom, Asselstine was not wearing any pants, and he told S.S. to take her clothes off. After S.S. took off her clothes, Asselstine used his hand to touch her vagina.

[4] T.S. noticed changes in S.S.’s personality over time during the period when Asselstine was living with them. S.S. became “depressed.” (Id. at 99.) She was “set off on every little thing” and “defiant and not wanting to get up out of bed[.]” (Id.) S.S. also stopped wanting to play outside.

[5] In January 2023, S.S. told T.S. about Asselstine's sexual abuse. T.S. discussed the accusation with Asselstine's mother, who was T.S.’s sister, but T.S. did not contact the police or the Indiana Department of Child Services (“DCS”). Later that month, S.S. completed a journaling assignment at her elementary school, and S.S.’s teacher brought S.S.’s journal entry to the attention of the school social worker. When the social worker asked S.S. about the journal entry, S.S. “reported that an older cousin in the house was touching her in a sexual manner.” (Id. at 33.) The social worker then contacted DCS and reported the abuse. A DCS family case manager interviewed S.S., and S.S. told her Asselstine had sexually abused her. DCS contacted the Indianapolis Metropolitan Police Department, and S.S. went for an interview at the Indianapolis Child Advocacy Center. During the forensic interview, S.S. explained that Asselstine had sexually abused her. After S.S. reported the abuse to the school social worker, Asselstine moved out of T.S.’s house.

[6] On February 6, 2023, the State charged Asselstine with two counts of Level 4 felony child molesting. The trial court held a bench trial on August 22, 2024, and at the conclusion of the trial, the trial court found Asselstine guilty of both counts. On September 5, 2024, the trial court sentenced Asselstine to a term of seven years for each conviction. The trial court ordered Asselstine to serve the two sentences concurrently, with the final three years of each sentence suspended to probation.

Discussion and Decision

[7] Asselstine contends the State did not present sufficient evidence to sustain his convictions. Our standard of review regarding sufficiency of the evidence claims is well-settled:

Sufficiency-of-the-evidence claims ․ warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. Rather, we consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.

Powell v. State, 151 N.E.3d 256, 262-63 (Ind. 2020) (internal citations omitted).

[8] Indiana Code section 35-42-4-3 provides:

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.

S.S. described two instances of sexual abuse at trial. She explained that Asselstine made her touch his penis and he touched her vagina during the first incident and that he touched her vagina during the second incident. S.S. reported Asselstine's abuse to several people including T.S., her school social worker, the DCS family case manager, and the forensic interviewer. In addition, T.S. noticed a change in S.S.’s behavior after Asselstine moved into the family's house.

[9] Asselstine points to an inconsistency in S.S.’s trial testimony about when the molestations occurred in relation to the death of S.S.’s grandmother. He also asserts S.S. “could not recall how long the incidents lasted, and her testimony was very vague.” (Appellant's Br. at 14.) He contends S.S.’s “vagueness, lack of memory, and contradictions raise questions about the reliability of her accusation.” (Id.) However, these arguments attacking S.S.’s credibility are nothing more than requests for us to judge the credibility of the witnesses and reweigh the evidence, which we will not do.² See Saavedra v. State, 186 N.E.3d 134, 140 (Ind. Ct. App. 2022) (holding defendant's argument that the State failed to present sufficient proof to sustain his child exploitation conviction was “nothing more than an invitation to reweigh the evidence, which we will not do”), reh'g denied, trans. denied.

[10] Asselstine also asks us to revisit the rule that a conviction may rest on the uncorroborated testimony of a minor. However, we are bound by the precedent of our Indiana Supreme Court. See Gill v. Gill, 72 N.E.3d 945, 949 (Ind. Ct. App. 2017) (“it is well-established that as Indiana's intermediate appellate court, we are bound to follow Indiana Supreme Court precedent”), trans. denied. The Indiana Supreme Court has long held “[c]onvictions for child molesting may rest upon the uncorroborated testimony of the victim.” Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992), reh'g denied. Therefore, we decline Asselstine's invitation to modify that rule and hold the State presented sufficient evidence to sustain Asselstine's convictions. See, e.g., Smith v. State, 163 N.E.3d 925, 930-31 (Ind. Ct. App. 2021) (holding uncorroborated testimony of a minor was sufficient to sustain child molesting conviction).

Conclusion

[11] The State presented sufficient evidence to sustain Asselstine's convictions. Accordingly, we affirm the trial court.

[12] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(b).

2.   An exception to this rule is that we will invade the province of the trier of fact when a witness's testimony is incredibly dubious. McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018). For this exception to apply, “[t]he evidence supporting the conviction must have been offered by a sole witness; the witness's testimony must have been coerced, equivocal, and wholly uncorroborated; it must have been ‘inherently improbable’ or of dubious credibility; and there must have been no circumstantial evidence of the defendant's guilt.” Id. While Asselstine points to several aspects of S.S.’s testimony to argue that the State failed to present sufficient evidence to sustain his conviction, he does not argue S.S.’s testimony was incredibly dubious.

May, Judge.

Weissmann, J., and Scheele, J., concur.