Court of Appeals of Indiana | Memorandum Decision 18 A

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### MEMORANDUM DECISION 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.
A TTORNEY FOR A PPELLANT Yvette M. LaPlante Keating & LaPlante, LLP Evansville, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

K.S. , Appellant

- Respondent

, v. 

### State of Indiana , Appellee

- P etitioner

. February 25, 2019 Court of Appeals Ca se No. 18A

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- 1826 Appeal from the Vanderburgh Superior Court The Honorable Brett J. Niemeier, Judge The Honorable R.A. Ferguson, Magistrate Trial Court Cause No. 82 D04

- 1802

- JD

- 257

Kirsch , JudgeCourt of Appeals of Indiana | Memorandum Decision 18 A

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[1] K.S. appeals his juvenile adjudication for what would be Level 4 felony child molesting 1 if committed by an adult, rais ing two issues, which we consolidate and restate as follows: w hether the re was sufficient evidence to support his adjudication

.
[2] We affirm. 

### Facts and Procedural History
[3] On January 23, 2018, R.S., who was seven years old, told her mother that K.S., her four teen
- year - old step
- brother, had been “humping” her

. Tr. Vol. II at 8 ; 10

- 11, 14, 21

- 22, 27, 30. R.S. said that w hen K.S. would hump her , both her pants and K.S

. ’s pants were down

. Id. at 28. She also said that K.S. put his “ding

- a ling,” R.S.’s word for penis, into “in [her] butt

. ” Id. at 30; State’s Ex. 2, 3. This occurred more than two times

. Tr. Vol. II at 31

- 32. On one occasion, K.S. put his fingers in R.S.’s “private part,” which she indicated on a diagram of a female child as her vaginal are a . Id. at 29, 32; State’s Ex. 2. K.S. threatened R.S. that “something would happen to [her]” and that he would punch her in the eye if she told anyone

. Tr. Vol. II at 24, 32.

[4] The day after R.S. told her mother what K.S. had done, R.S. ’s mother took he r to the hospital

. Id. at 7, 13. After R.S. told medical personnel that her “private

1 See Ind. Code § 35

- 42

- 4

- 3 (b).Court of Appeals of Indiana | Memorandum Decision 18 A

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part” hurt when she used the bathroom , she was diagnosed with a urinary tract infection

. Id. at 13, 35.

[5] On February 7, 2018, the State filed a delinquency petition alleging that K.S. had committed child m olesting under I ndiana Code section 35

- 42

- 4

- 3(a), which would be a Level 3 f

elony if committed by an adult, and c hild m olesting under I ndiana Code section 3 5

- 42

- 4

- 3(b), which would be a Level 4 f elony if committed by an adult. Appellant’s App. Vol. II at 17

- 18

. The State alleg ed that K.S. had inappropriately touched R.S., who was less than fourteen years old. Id.

[6] At the end of the March 26, 2018 fact

- findi ng hearing , the trial court took the matter under advisement

. Later that day, it adjudicated K.S. to be a delinquent child as to Count 2, child molesting as a Level 4 felony, but not on Count 1 , child molestin g as a Level 3 felony , because the State faile d to prove penetration

. I

d

. at 11. At the dispositional hearing, the trial court placed K.S. under the supervision of the Vanderburgh County Probation Department at the Sexually Maladaptive Youth Program. Id. at 12.

[7] Appellate counsel failed to file a timely Notice of Appeal. New appellate counsel was appointed, and o n July 26, 2018, K.S. filed a Petition for Post

Conviction Relief, seeking permission under Post

- Conviction Rule 2(3) to file a belated Notice of Appeal. The trial court granted the reque st , and counsel filed the Notice of Appeal on July 30, 2018. Id . at 2. K.S. now appeals.Court of Appeals of Indiana | Memorandum Decision 18 A

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### Discussion and Decision 2
[8] K.S. alleges the State fai led to present sufficient evidence for his adjudication as a delinquent child for what would be Level 4 felony child molesting if committed by an adult because it failed to prove beyond a reasonable doubt that his act of touching R.S. was accompanied by the specific intent to arouse or satisfy sexual d esires

. See Clark v. State, 695 N.E.2d 999, 1002 (Ind. Ct. App. 1998)

.
[9] When reviewing a claim of sufficiency of the evidence with respect to juvenile adjudications, we do not reweigh the evidence or judge the credibility of witnesses. D.W. v. State , 903 N.E.2d 966, 968 (Ind. Ct. App. 2009), trans. denied

. We look o nly to probative evidence supporting the adjudication and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the juvenile was guilty beyond a reasonable doubt. Id

. If there is sub stantial evidence of probative value to support the adjudication, we will not set it aside. Id

. The uncorroborated testimony of one witness may be sufficient by itself to sustain an adjudication of delinquency on appeal. Id. E vidence “need not overcome every reasonable hypothesis of innocence; it is sufficient so long as ‘an inference may reasonably

2 K.S. asks this court to affirm the trial court’s ruling that allowed him to file a belated Notice of Appeal and let this appeal go fo rward . A juvenile may not bring a belated appeal pursuant to Post

- Conviction Rule 2 but must instead file a Trial Rule 60 motion for relief from judgment in the trial court. See Haluska v. State , 663 N.E.2d 1193, 1194 (Ind. Ct. App. 1996)

. However, beca use the State does not object to K.S.’s request , and reviewing K.S

. ’s substantive issue on the merits serves judicial economy, we choose to let the appeal proceed.Court of Appeals of Indiana | Memorandum Decision 18 A

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be drawn from it to support the verdict. ’” Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)).

[10] “ 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 c hild molesting, a Level 4 felony. ” Ind. Code § 35

- 42

- 4

- 3 (b). Mere touching alone is not sufficient to constitute child molesting. Bowles v. State , 737 N.E.2d 1150, 1152 (Ind. 2000)

. The State must also prove beyond a reasonable doubt that the act of to uching was accompanied by the specific intent to arouse or satisfy sexual desires. Id. I ntent may be established by circumstantial evidence and may be inferred from the actor ’ s conduct. Id.

[11] Here, it was reasonable for the fact

- finder to infer that K.S

. intended to satisfy either his or R.S.’s sexual desires. P lacing his penis in R.S.’s “butt” and inserti n g his fingers into her vagina support the inference that he intended to arouse or satisfy sexual desires. Also, R.S.’s statement that K.S. was “hump ing” her supports the same inference

. “Humping” is commonly understood as touching of a sexual nature, including intercourse. Merriam

Webster’s dictionary defines the verb “hump” as “usually vulgar: to copulate with.” See hump, available at https://www .merriam

webster.com/dictionary/hump (last visited Feb

. 15, 2019)

. These facts support the inference that K.S. intended to satisfy his or R .S.’s sexual desires. See Bowles, 737 N.E.2d at 1152

- 53. Therefore, the evidence was sufficient toCourt of Appeals of Indiana | Memorandum Decision 18 A

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support K.S.’s adjudication as a delinquent child for what would be Level 4 felony child molesting if committed by an adult.

[12] Affirmed. Riley , J., and Robb, J., concur.