Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEY S FOR APPELLEE : JACK QUIRK GREGORY F. ZOELLER Delaware County Public Defender Agency Attorney General of Indiana Muncie, Indiana JONATHAN R. SICHTERMANN Deputy Attorney Gene r al Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

JEREAMY M. BARNES , ) ) Appellant

- Defendant , ) ) vs. ) No. 18A05

- 1204

- CR

- 209 ) STATE OF INDIANA , ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Marianne L. Vorhees, Judge Cause No. 18 C01

- 1007

- FA

- 7

February 5, 2013

MEMORANDUM DECISION
- NOT FOR PUBLICATION

BRADFORD , Judge2

Appellant

- Defendant Jereamy Barnes appeals his two conviction s for Class A felony child molesting, arguing that Appellee

- Plaintiff the State of Indiana presented insufficient evidence to support the jury’s verdict. At trial, t he twelve

- year
- old victim , K.R., testified that Barnes digitally penetrated her vagina on July 4, 2010, and that she
and Barnes had sexual intercourse two days later . The State also presented evidence of

text messages sent and received by K.R., including: “I just lost my virginity,” sent to
K.R.’s best friend immediately after the alleged digital penetration, and “Promise me that we r gonna have sex tonight,” received from Barnes shortly before the alleged sexual
intercourse . Further , a Sexual Abuse Nurse Examiner testified that a physical
examination of K.R. revealed an abrasion on the right side of K.R.’s vaginal opening that

c o uld have come from a penis or a finger

. Concluding that a reasonable jury could find Barnes guilty of two counts of Class A felony child molesting on this evidence, we
affirm.
FACTS AND PROCEDURAL HISTORY
In the summ er of 2010, twelve

- year
- old K.R. lived with her mother and four siblings in a duplex apartment in Muncie. Twenty

- five

- year
- old Barnes lived with his
wife and three children in the adjoining apartment. On July 8, 2010, K.R.’s mother
learned from the mothe r of K.R.’ s best friend that K.R. had a sexual relationship with
Barnes. When confronted by her mother, K.R. initially denied the allegat ion but ultimately admitted that she and Barnes had engaged in sexual intercourse. K.R.’s mother immediately took K.R . to the hospital, where Sexual Abuse Nurse Examiner Jennifer Hopper performed a physical examination on K.R. The exam revealed an3

abrasion on the right side of K.R.’s vaginal opening. On July 23, 2010, the State charged Barnes with four counts o f child molesting : Count 1 alleged that Barnes performed sexual intercour se with K.R. on July 4, 2010; Count 2, that Barnes performed deviate sexual conduct with K.R. on July 4, 2010 ; Count 3, that Barnes performed sexual intercou rse with K.R. on July 6, 2010; an d Count 4, that Barnes performed fondling or touch ing with K.R. on July 4, 2010. 1 The State later
dismissed Count 4 , and a trial wa s held on the remaining three , all Class A felonies. At trial, the State presented, among other things , K.R. ’s testimony, a transcript of text

messages sent and received by K.R., and the testimony of Nurse Hoppe r. K.R. testified that in the early morning of July 4, 2010, she received a text message from Barnes, inviting her to his apartment. K.R. sneaked next door , where
Barn es asked K.R. if she w as “r ea dy to lose [ her ] virginity. ” Tr. p. 56. Barnes removed his clothes and persuaded K.R. to take off her pants and underwear. Barnes inserted his finger in K.R.’s vagina and proceeded to move it in and out for approximately fiv e minutes. Afterward, K.R. returned home and text ed her best friend, “I just lost my virginity

... I think.” Ex. p. 17 . “No ... I DID lose my virginity.” Ex. p. 17

. Two days later, Barnes texted K.R., “Then u gon cum nd give me sum,” Ex. p. 224, and “Promise me that we r gonna have sex tonight.” Ex. p. 225. Shortly thereafter, K.R. again sneaked to Barnes’s apartment

. K.R. and Barnes began having sexual

1 These are the charges as stated in t he State’s charging informations and the trial court’s preliminary jury instructions. In their respective briefs, Appellant and Appellee erroneously list the charges as two counts of Class A felony child molesting, one count of Class B felony criminal deviate conduct, and one count of Class D felony child solicitation . This error is also found in the State’s probable cause affidavit, to wh ich the parties cite.4

intercourse, but K.R. stopped and asked Barnes if he had a condom. Barnes replied that
he was n ot going to use a condom because he would have to wake up his wife to get one

. He further told K.R. that a condom would not be necessary if he did not “ go in all the

way. ” Tr. p. 71

- 72

. K.R. and Barnes resumed having sexual intercourse and continued
for approximately twenty minutes . Afterward, Barnes asked K.R. if she wanted to see
what “ nut ” was , Tr. p. 72, before showing her so me “clear stuff” in his hand. Tr. p. 73

. The next day, K.R. texted Barnes and asked, “ Iff yuu do it with your clothes on,

are yuu still a virgin ?” Ex. p. 262. Barnes responded, “ Um yea why u ask me that?” Ex

. p. 264. K.R. replied, “ [B]ecuz yuu said that yuu didn’t think yuu popped it!” Ex . p. 268.
At trial , K.R. elaborated that, after having sex ual intercourse with Barnes, he told her that he did not think he had “popped [her] cherry

. ” Tr. p. 76

. N urse Ho pper testified that she found an abrasion on the right side of K.R.’s vaginal opening that could have come from a penis or a finger. She also admitted that the
abrasion co uld have been caused by tight

- fitting clothing or a tampon. Nurse Hopper did not find any damage to K.R.’s hymen, but she testified that this fact was not determinative of whether sexual penetration had occurred. The jury acquitted Barnes on Count 1 but f ound him guilty on C ounts 2 and 3

. T he trial court sentenced Barnes to twe nty

- five years executed on each count, to be
served concurrent ly

. DISCUSSION AND DECISION Barnes argues that the State presented insufficient evi dence to support his
conviction on two counts of Class A felony child molesting.5 In reviewing the sufficiency of the evidence, we examine only “the probative evidence and reasonable inferences” that support the verdict. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Id. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and “affirm the conviction unless ‘no reasonable fact

- finder could find the elements of the crime proven beyond a reasonable doubt.’” Id. at 146

- 47 (quoting Jenkins v. State , 726 N.E.2d 268, 270 (Ind. 2000)). This evidence need not overcome every reasonable hypothesis of innocence ; it is sufficient so long as “ ‘an inference may reasonably be drawn f

rom it to support the verdict.’ ” Id. at 147 (quoting Pickens v. State , 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).
Lock v. State , 971 N.E.2d 71, 74 (Ind. 2012)

. Here, the State presented K.R.’s testimony that Barnes digitally penetrated her vagina on July 4, 2010, and that she and Barnes engaged in sexual intercourse on July 6,
2010

. T he State corroborated this testimony with evidence of the text message , “I just lost my virginity,” Ex. p. 17, sent by K.R. to her best friend immediately after the alleged digital pen e tration

. The State also provided evidence of the text messages , “[C]um nd give me sum,” Ex. p. 224, and “Promise me that we r gonna have sex tonight,” Ex. p. 225, sent by Barnes to K.R. shortly before the alleged sexual intercourse

. Additionally,

t he State presented evidence of the text message, “ [Y]uu said that yuu didn’t think yuu popped [my cherry]!” Ex. p. 268, sent from K.R. to Barnes on the day after the alleged
sexual intercourse

. The State further corroborated K.R.’s testimony with that of N urse Hopper , who state d that she found an abrasion on the side of K.R .’s vaginal opening that could have come from a penis or a finger. We conclude that a reasonable jury could find Barnes guilty of two counts of Class A felony child molesting on this evidence. Barnes’s claim that the State presented no6

evidence, other th an K.R.’s testimony, that Barnes engaged in deviate sexual conduct or
sexual intercourse with K.R. is patently false. Moreover, it ignores the fact that “[a] victim’s testimony, even if uncorroborated, is ordinarily sufficient to sustain a conviction
for child molesting.” Bowles v. State , 737 N.E.2d 1150, 1152 (Ind. 2000). Barnes’s other contentions simply invite us to reweigh the evidence, which is something we will
not do. Drane , 867 N.E.2d at 146. The judgment of the trial court is affirmed. NAJAM, J., and FRIEDLANDER, J., concur.