David M. Souder, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] David M. Souder appeals following his convictions of two counts of Level 1 felony child molesting ¹ and one count of Level 4 felony child molesting.² He raises one issue: whether the State presented sufficient evidence to sustain his convictions. We affirm.

Facts and Procedural History

[2] In 2008, Souder married a woman named Sandra who had an adult daughter, J.R., who had three children herself, including S.R. After Souder and Sandra married, they lived in a trailer in Allen County. Souder routinely slept on the living room floor due to a lingering back injury, and Sandra slept in one of the trailer's bedrooms. S.R. and her siblings routinely visited the Souders on weekends.

[3] During one visit, Souder asked S.R. to come with him into Sandra's bedroom. He touched her vaginal area over her clothes and rubbed his hand in a circular motion. S.R.’s “body shaked” while Souder rubbed her vagina. (Tr. Vol. 2 at 213.) Souder instructed S.R. “don't tell nobody.” (Id. at 214.) Another time, Souder summoned S.R. to Sandra's bedroom and placed his hand under S.R.’s clothes and touched her vagina. On a different occasion, Souder touched S.R.’s vagina and “something came out of [Souder's] pee pee[.]” (Id. at 221.) S.R. believed the discharge was “pee” and Souder deposited it “[o]n [S.R.’s] legs and [her] face.” (Id. at 222.) On yet another occasion in Sandra's bedroom, Souder touched S.R.’s vagina with his hand and inserted his penis into her vagina.

[4] Several days later, S.R. “blurted out” to Sandra that Souder “moves his ding, ding-a-ling back and forth.” (Id. at 197.) Sandra told Rebecca Hardesty, Sandra's sister, about the disclosure, and Hardesty notified the Indiana Department of Child Services (“DCS”). DCS family case manager (“FCM”) Rachel Flauding was assigned to investigate. She made an unannounced visit to J.R.’s house and spoke with S.R., who disclosed that she had been sexually abused by Souder. FCM Flauding then contacted the Fort Wayne Police Department and arranged a forensic interview. S.R. was seven years old at the time of the forensic interview, and she disclosed in the forensic interview that she had been abused by Souder. S.R. then went to the hospital where a nurse performed a sexual assault examination. S.R. told the nurse performing the exam that Souder “had his finger in my pee pee[.]” (Ex. Vol. 1 at 23.) At the time of the exam, S.R.’s body did not display any physical signs of abuse.

[5] The State charged Souder with two counts of Level 1 felony child molesting and one count of Level 4 felony child molesting. The trial court held a jury trial on the charges on September 10, 11, and 12, 2024. S.R. demonstrated to the jury with her hand how Souder had touched her vagina during the incidents. S.R. explained Souder touched her “cooch with his pee pee” two times. (Tr. Vol. 2 at 224-25.) The jury returned a verdict finding Souder guilty as charged. The trial court imposed concurrent forty-year sentences for the Level 1 felony child molesting convictions and a consecutive ten-year sentence for the Level 4 felony child molesting conviction. Thus, Souder's aggregate sentence is fifty years.

Discussion and Decision

[6] Souder argues the State failed to present sufficient evidence to sustain his three convictions. “When faced with challenges to the sufficiency of evidence, we apply a ‘well settled’ standard of review that leaves determination of the weight of the evidence and credibility of the witnesses to the fact-finder.” Young v. State, 244 N.E.3d 950, 963 (Ind. Ct. App. 2024) (quoting Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024)), trans. denied. “We consider only the evidence most favorable to the trial court's ruling and will affirm a defendant's conviction unless ‘no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ ” Teising, 226 N.E.3d at 783 (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).

[7] Indiana Code section 35-42-4-3(a) provides that a person over twenty-one years old who “knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct” with a child under fourteen years old commits Level 1 felony child molesting. “ ‘Sexual intercourse’ means an act that includes any penetration of the female sex organ by the male sex organ.” Ind. Code § 35-31.5-2-302. “ ‘Other sexual conduct’ means an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.” Ind. Code § 35-31.5-2-221.5. Likewise, someone

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.

Ind. Code § 35-42-4-3(b).

[8] Souder argues “no reasonable jury could believe the victim's statements due to the multiple changes in the victim's rendition of what happened to her.” (Appellant's Br. at 12.) He points out that S.R.’s testimony did not include a description of how her clothes came off or how the discharge from Souder's penis was cleaned up. He notes S.R. is “mildly autistic” and has an individualized education plan at her school. (Id. at 13.) Souder also observes that S.R. was also only seven years old when she first disclosed the sexual abuse and eight years old when she testified at trial. He asserts S.R.’s “age and mental health” call her reliability into question. (Id.) In addition, Souder notes that while S.R. told the nurse who performed the sexual assault examination on her that Souder had performed oral sex on her, S.R. testified at trial that Souder never performed oral sex on her.

[9] However, all of these arguments attacking S.R.’s credibility are nothing more than requests for us to judge her credibility as a witness and reweigh the evidence, which we will not do.³ 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”), trans. denied. S.R. consistently identified Souder as her abuser and described the abuse to DCS, the forensic interviewer, and the sexual assault nurse examiner. She also told J.R. and Sandra about the abuse after DCS started its investigation. While the State had to redirect S.R. several times during her testimony at trial, she testified that Souder had repeatedly touched her vagina and inserted his penis into her vagina. It was the role of the jury to assess S.R.’s credibility, and the jury found her testimony credible. See Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022) (“It is the role of the jury, as fact-finder, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. When there are conflicts in the evidence, the jury must resolve them.”) (internal quotation marks and citation omitted).

[10] Souder “contends that there is no physical evidence in support of the child's allegations.” (Appellant's Br. at 12.) He notes “[t]here was no DNA found on the child which would support the child's allegations.” (Id.) He also asserts “[t]he physical exam of the child revealed no injury to the child's genitalia which is inconsistent with her allegations of the Defendant inserting his penis into her.” (Id.) However, the sexual assault nurse examiner testified that she did not anticipate finding physical evidence of the abuse when she performed the exam because the exam occurred outside the window of time when such evidence was likely to be present. Therefore, the lack of physical evidence is not surprising, and we affirm the trial court's judgment because the State presented sufficient evidence to sustain Souder'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 Souder's convictions. Accordingly, we affirm the trial court's judgment.

[12] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a).

2.   Ind. Code § 35-42-4-3(b).

3.   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 Souder points to aspects of S.R.’s testimony to argue that the State failed to present sufficient evidence to sustain his conviction, he does not argue S.R.’s testimony was incredibly dubious.

May, Judge.

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