TIERNEY v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Matthew E. Tierney appeals his conviction for Level 4 felony child molesting, raising the following restated issues for our review: 1) whether the trial court abused its discretion in admitting seven-year-old W.M.’s testimony; and 2) whether the evidence was sufficient to support Tierney's conviction. We affirm.

Facts and Procedural History

[2] On about July 23, 2022, Tierney arrived at the home of his daughter, Erin, and Erin's husband, Dax, where they lived with their three children, including then-four-year-old W.M. Tierney often stayed in Erin's and Dax's spare bedroom while he was between job assignments. The next day, Erin and Dax went boating with friends while Dax's mother babysat W.M. and his siblings. Tierney stayed at the home. When Erin and Dax returned, Tierney text messaged Erin and asked, “Hey, would you let me out of my room?” Tr. Vol. II p. 118. Erin went to the spare bedroom and found the child lock on the outside of the door engaged. When she let him out, Tierney said he did not know who locked him in.

[3] On July 29, while trying to get her children ready for bed, Erin found W.M. curled up in the fetal position on the floor. She asked W.M. what was wrong and he said, “I'm nervous” and “I don't want [Tierney] in the house.” Id. at 121. When Dax joined the conversation, he asked W.M. if Tierney hurt him. W.M. responded affirmatively and disclosed that Tierney touched his “dingy[,]” meaning his penis. Id. at 75. W.M. also told his parents that Tierney made him kiss Tierney's “dingy[.]” Id. at 99. In a subsequent conversation, W.M. disclosed that he had locked Tierney in the spare room because he was scared. See id. at 128.

[4] Immediately after W.M.’s disclosure, Erin and Dax told Tierney to leave their home, and Tierney did so without incident. They reported the incident to law enforcement. W.M. completed a forensic interview and disclosed that an incident of sexual abuse occurred. Several months later, W.M. began seeing a therapist to whom he made consistent disclosures. Specifically, W.M. told the therapist “[Tierney] made him suck his D” and “[Tierney] made me suck his dingle.” Id. at 164.

[5] The State charged Tierney with Level 4 felony child molesting.¹ Several days after being charged, Tierney was located by the U.S. Marshal's office in Virginia and arrested. A jury trial ensued on November 6, 2024. At the start of then-seven-year-old W.M.’s testimony, the following exchange took place:

[Court]: Okay, W, you're going to be asked some questions. And you know Jess, right?

[W.M.]: Miss Jessica.

[Court]: Right. And Jess is going to ask you some questions. And this gentleman over here with the red tie on who just raised his hand, his name is Mr. Lenn. His name is Chris and he's going to ask you some questions.

[W.M.]: He's going to try to make everybody think I'm lying.

[Court]: Oh, I don't know about that. But what I want you to know is that it's important that you tell the truth, okay? That's all I would like for you to do is tell the truth as best you can remember, alright?

[W.M.]: Okay.

[Court]: Miss Jessica's going to start.

[Prosecutor]: W, do you promise to tell the truth today?

[W.M.]: Yes.

Id. at 46.

[6] W.M. testified that when he said goodnight to Tierney on the first night of his visit, Tierney was “leaning over ․ on a pillow” on the bench at the dining room table. Id. at 49. W.M. then said,

Let me tell you the important part. He grabbed my head, he pulled it closer, he grabbed my arm. He let go, he told me, ‘Kiss my dingy or else I'm taking your Mom's purse.’ Forced me to. But when I did I ran away. I did kiss his dingy but then I ran away.

Id. He further explained that Tierney's penis was “[s]ticking straight out[,]” “was kind of slimy[,]” and “[t]here was something dripping from it.” Id. at 57-58. W.M. confirmed he locked Tierney in his room because Tierney asked him to “kiss his dingy.” Id. at 56.

[7] The jury found Tierney guilty of Level 4 felony child molesting. In February 2025, the trial court sentenced Tierney to six years executed in the Indiana Department of Correction. Tierney now appeals.

Discussion and Decision

I. Competency

[8] Tierney argues the trial court abused its discretion by admitting then-seven-year-old W.M.’s testimony because it failed to ensure W.M. was competent to testify. Specifically, Tierney contends the court failed to determine whether W.M. knew and understood the difference between the truth and a lie. As an initial matter, the State contends Tierney waived this argument by failing to object at trial and by failing to argue on appeal that the error was fundamental. Tierney concedes that he “failed to object to W.M.’s competency, and that a failure to object acts as a waiver of the issue.” Appellant's Br. p. 12. Still, Tierney asserts that trial courts have an independent obligation to ensure a child's competency.² However, Tierney does not argue that a court's failure to do so is fundamental error.

[9] It is well established that “we generally will not address an argument that was not raised in the trial court and is raised for the first time on appeal.” Leatherman v. State, 101 N.E.3d 879, 885 (Ind. Ct. App. 2018). Because Tierney did not raise an argument about W.M.’s competency at trial, the issue is waived. See Kochersperger v. State, 725 N.E.2d 918, 922 (Ind. Ct. App. 2000) (explaining that a defendant's failure to object to a child's testimony at trial results in waiver of any question of the competency of the child as a witness).

[10] To survive waiver, Tierney needed to allege the trial court's error was fundamental. An error is fundamental if it is “so prejudicial to the rights of the defendant that he could not have received a fair trial.” Leatherman, 101 N.E.3d at 886. “We have also characterized fundamental error as error that constitutes a clear, blatant violation of basic and elementary principles, and that causes or could cause substantial harm.” Id. Tierney fails to raise a fundamental error argument. And he does not respond in his reply brief to the State's argument that failure to allege fundamental error results in waiver of the issue. We agree that Tierney has waived this issue for our review.

II. Sufficiency of the Evidence

[11] Tierney also challenges whether the evidence was sufficient to prove he molested W.M. Our standard for reviewing a claim of insufficient evidence is well-settled:

For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact. On sufficiency challenges, we will neither reweigh evidence nor judge witness credibility. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021) (citations omitted).

[12] To convict Tierney of Level 4 felony child molesting, the State was required to prove beyond a reasonable doubt that Tierney performed or submitted to fondling or touching with W.M., a child under the age of fourteen, with intent to arouse or to satisfy the sexual desires of either W.M. or himself. Ind. Code § 35-42-4-3(b) (2022).

[13] Here, the probative evidence and reasonable inferences sufficiently proved that Tierney made then-four-year-old W.M. kiss his erect, exposed penis. Shortly after the sexual act occurred, W.M. disclosed to his parents that Tierney told him to kiss Tierney's “dingy[,]” meaning Tierney's penis. Tr. Vol. II p. 99. During a forensic interview and subsequent therapy sessions, W.M. made consistent disclosures that a sexual act occurred, and Tierney made W.M. kiss Tierney's penis. At trial, then-seven-year-old W.M. testified that Tierney grabbed his head, pulled it closer, and “[f]orced” him to kiss Tierney's penis. Id. at 49. W.M. confirmed that he complied then ran away. As to the intent element, W.M. testified that during the act Tierney's penis was “[s]ticking straight out[,]” “[i]t was kind of slimy[,]” and “[t]here was something dripping from it.” Id. at 57-58. The State sufficiently proved Tierney had the intent to satisfy his own sexual desires based on W.M.’s testimony that Tierney's penis was erect and Tierney was ejaculating during the sexual act. In total, W.M.’s testimony supports Tierney's conviction.

[14] Tierney “acknowledges that the testimony of a child victim, standing alone, is normally sufficient to support a conviction for child molesting.” Appellant's Br. p. 15. Still, Tierney contends W.M.’s claim was “vague” and that the evidence is insufficient because two other people (namely, W.M.’s grandmother and his sibling) who were in the home when the molestation occurred did not testify. Id. Tierney's argument is merely a request that we reweigh evidence and judge W.M.’s credibility, which we will not do. Hall, 177 N.E.3d at 1191. We affirm.

[15] Affirmed.

FOOTNOTES

1.   The State later amended the charges to add Level 4 felony attempted child molesting but dismissed this charge at the close of Tierney's jury trial.

2.   Tierney cites Newsome v. State, 686 N.E.2d 868, 872 (Ind. Ct. App. 1997), for the holding that a “trial court will still be required to conduct the inquiry set out in Casselman, 582 N.E.2d [432, 435 (Ind. Ct. App. 1991)]—whether the child (1) understands the difference between telling a lie and telling the truth, (2) knows she is under a compulsion to tell the truth, and (3) knows what a true statement actually is.” But cf. Aldridge v. State, 779 N.E.2d 607, 609 (Ind. Ct. App. 2002) (Rule of Evidence 601 permits special inquiry into a child's competency when the issue is raised by a defendant; when read in conjunction with the repeal of a former statute presuming children under ten years old were incompetent, Rule 601 “abandoned the previous arbitrary lines drawn regarding age, in favor of a rule which assumes competency until otherwise demonstrated by the opponent of the testimony.”), trans. denied.

Scheele, Judge.

Brown, J., and Felix, J., concur.