J.H., Appellant-Respondent v. State of Indiana, Appellee-Petitioner (2026)

MEMORANDUM DECISION

[1] J.H. appeals his delinquency adjudication, arguing that there was insufficient evidence to support his adjudication for the act of committing the offense of activity related to obscene performance. We reverse.

Facts and Procedural History

[2] In March 2023, K.N. was four years old and was at the home of her step-grandmother, who she referred to as Nannie, who watched K.N. while her mother, Aubrey Gaines (“Mother”), worked or ran errands. K.N.’s uncle, J.H.—who was approximately twelve to thirteen years old at the time—was also often present at Nannie's home.

[3] On March 15, 2023, Mother “walked in on [K.N.] inappropriately touching herself.” Tr. Vol. 2 p. 17. Mother informed numerous family members about the incident, and after speaking with K.N.’s father, decided to contact law enforcement. Mother spoke with law enforcement, who also notified the Department of Child Services, and a safety plan was put in place to ensure K.N. would have no contact with J.H. After speaking with law enforcement, Mother took K.N. to the hospital to be examined. Mother was advised by hospital staff that the outside of K.N's vaginal area looked irritated. See id. at 21.

[4] Thereafter, Mother and K.N. participated in separate forensic interviews at the CASIE Center. Based on his review of K.N.’s forensic interview, Lieutenant Detective Les McFarland of the Marshall County Sheriff's Department determined that “there was a disclosure made from the four-year-old child that ․ [the] individual was allegedly touching the four-year-old ․ in the vagina area[.]” Id. at 14.

[5] On May 9, 2023, the State filed a delinquency petition alleging J.H. to be a delinquent child for committing Count I: sexual battery, a Level 6 felony if committed by an adult. See Appellant's App. Vol. II p. 22. On March 27, 2025, the State filed an amended delinquency petition amending Count I and adding an allegation that J.H. committed Count II: activity related to obscene performance, a Level 6 felony if committed by an adult. Id. at 155–56. The State's amended delinquency petition provided as follows:

I Sexual Battery

(Count 1: Sexual Battery, a Level 6 Felony)

I.C. 35-42-4-8(a)(1)(A)

On or about March 15, 2023[,] through March 15, 2023,․ [J.H.], with the intent to arouse or satisfy the sexual desires of Victim 1 or sexual desires of the delinquent child, did compel Victim No. 1 to submit to a touching by force or imminent threat of force.

II Activity Related to Obscene Performance

(Count 2: Activity Related to Obscene Performance, a Level 6 Felony)

I.C. 35-49-3-2

[B]etween January 15, 2023[,] and March 15, 2023, ․ [J.H.] did knowingly engage in an obscene performance[,] that sexual conduct involving a person who is or appears to be under eighteen (18) years of age, to-wit: inappropriate touching of the genitals with a foreign object.

Id. at 155 (emphasis added).

[6] At the fact-finding hearing, K.N. testified that when the incident occurred “[i]t was kind of chilly outside” and that she was at her Nannie's house. Tr. Vol. 2 p. 28. K.N. stated that J.H. “was touching [her] on the vagina” and did so with “that shovel where you pick up dog poop.” Id. at 30, 32. K.N. explained that it “felt ․ scratchy” and “[i]t really hurted [sic].” Id. at 32. She explained that the shovel “only went on the outside.” Id. The State later recalled K.N. to testify in rebuttal, and she stated that J.H. pulled his pants down in front of her and said “do you want a sucker[.]” Id. at 56.

[7] At the conclusion of the fact-finding hearing, the trial court stated that:

[J]ust ․ thinking about the evidence presented and ․ [whatnot] here. I think the Court has come to the decision ․ and not based on the recent evidence, but ․ I give credibility to what the child said when she said, it really hurted [sic]․ [S]o, I'm gonna [sic] find that adjudication is proper in this case․ I believe that, that testimony was credible. And it sticks out beyond a reasonable doubt in my mind; so, we're gonna [sic] adjudicate a delinquency here. Okay. That's it.

Id. at 61.

[8] Three days later, on May 8, 2025, the trial court issued its order finding J.H. to be a delinquent child. In its written order, the trial court found that the State failed to prove Count I beyond a reasonable doubt and dismissed the count, stating “Count I was brought under subsection (a)(1)(A) and not (a)(1)(B).” Appellant's App. Vol. II p. 186. With respect to Count II, the trial court found that “the statute violated by [J.H.], and the class of felony, if committed by an adult, is: Activity Related to Obscene Performance a violation of Ind. Code § 35-49-3-2 a Level 6 Felony.” Id. at 185. The trial court then entered judgment that J.H. is a delinquent child.

[9] On June 11, 2025, the trial court issued its dispositional order and placed J.H. on probation for one year. The dispositional order required J.H. to participate in a psychosexual assessment and follow any recommendations, comply with sex offender terms, pay court costs, and pay probation fees. See Appellant's App. Vol. II pp. 188–90; Tr. Vol. 2 pp. 65–67. J.H. now appeals.

Discussion and Decision

[10] J.H. argues that there was insufficient evidence to support his adjudication for the delinquent act of having committed the crime of activity related to obscene performance as alleged in Count II of the amended delinquency petition. “When reviewing sufficiency claims in the special context of a juvenile adjudication, such as here, we do not reweigh the evidence or judge witness credibility, but appraise only the evidence favorable to the judgment and the reasonable inferences supporting it.” A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024) (internal quotation marks omitted) (quoting B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018)). “We will affirm a juvenile-delinquency adjudication if a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt.” B.R. v. State, 162 N.E.3d 1173, 1176 (Ind. Ct. App. 2021) (quoting B.T.E., 108 N.E.3d at 326).

[11] Indiana Code section 35-49-3-2 defines the offense of activity related to obscene performance, providing as follows:

A person who knowingly or intentionally engages in, participates in, manages, produces, sponsors, presents, exhibits, photographs, films, or videotapes any obscene performance commits a Class A misdemeanor. However, the offense is a Level 6 felony if the obscene performance depicts or describes sexual conduct involving any person who is or appears to be under eighteen (18) years of age.

Indiana Code section 35-49-1-7 defines “performance” to mean “any play, motion picture, dance, or other exhibition or presentation, whether pictured, animated, or live, performed before an audience of one (1) or more persons.” The amended delinquency petition specifically alleged that J.H. engaged in an obscene performance through “inappropriate touching of the genitals with a foreign object.” Appellant's App. Vol. II p. 155.

[12] In the trial court's verbal delinquency pronouncement, it found K.N.’s testimony that “it really hurted [sic]” credible and adjudicated J.H. as a delinquent child. Tr. Vol. 2 p. 61. In its written order, the trial court specified that adjudication was proper as to Count II, but as to Count I, the trial court dismissed this count. It reasoned that Count I “was brought under subsection (a)(1)(A) and not (a)(1)(B).” Appellant's App. Vol. II p. 186.

[13] Count I, alleging sexual battery, was properly dismissed. Indiana Code section 35-42-4-8(a) defines the offense sexual battery as follows:

A person who, with the intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person:

(1) touches another person when that person is:

(A) compelled to submit to the touching by force or the imminent threat of force; or

(B) so mentally disabled or deficient that consent to the touching cannot be given ․

Ind. Code § 35-42-4-8(a)(1)(A), (a)(1)(B). Under Count I the State alleged, that “[J.H.], ․ did compel Victim No. 1 to submit to a touching by force or imminent threat of force.” Appellant's App. Vol. II p. 155. However, the State presented no evidence that K.N. submitted to the battery by force or imminent threat of force. Therefore, the trial court was correct to dismiss Count I.

[14] Because Count I was dismissed, Count II forms the sole basis for J.H.’s delinquency adjudication. Count II specifically alleged that J.H. committed the crime of activity related to obscene performance through the “inappropriate touching of the genitals with a foreign object.” Id. J.H. argues, and the State agrees, that there was insufficient evidence presented that J.H. engaged in an obscene performance, as that term is defined by statute. See Appellee's Br. p. 8 (agreeing there was insufficient evidence because “touch[ing] K.[N.] who was under 18 years old, on her genitals with a foreign object ․ has nothing to do with activity related to an obscene performance”). Regardless of whether J.H. touching K.N. with the foreign object is “obscene”, there was no evidence that J.H.’s actions satisfied the statutory definition of “performance.” See I.C. § 35-49-1-7.

[15] Nonetheless, the State argues the delinquency adjudication should be affirmed because the trial court's verbal statements at the conclusion of the fact-finding hearing indicate the intent to find that J.H. committed the act of sexual battery, just not as alleged in Count I. See Appellee's Brief pp. 9–10 (stating “regardless of any errors in the statutory label assigned to Count 2, it is alleging the same act ․ as alleged in Count 1.”). In essence, the State invites us to reconstruct the delinquency petition and the trial court's written order, which we cannot do. Despite the somewhat ambiguous statements by the trial court at the conclusion of the fact-finding hearing, the written order is clear. See Tr. Vol. 2 p. 61; Appellant's App. Vol. II pp. 185–86. Count I was properly dismissed and there was insufficient evidence to prove the elements of the act of activity related to obscene performance as alleged under Count II.

[16] Because the trial court dismissed Count I and there was insufficient evidence to support an adjudication as to Count II based on the allegations specific to that count, we are left with no other remedy but to reverse J.H.’s delinquency adjudication. We, therefore, reverse the determination that J.H. was a delinquent child for committing Count II: activity related to an obscene performance.

[17] Reversed.

Foley, Judge.

May, J., and Altice, J., concur.