Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2196 | June 28, 2017 Page 1 of 9

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.

ATTORNEY FOR APPELLANT

Karen Celestino-Horseman

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Joseph Richardson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 28, 2017

Court of Appeals Case No.

49A04-1609-CR-2196

Appeal from the Marion Superior 

Court

The Honorable Marc T. 

Rothenberg, Judge

Trial Court Cause No.

49G02-1211-FB-76505

Robb, Judge.
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Case Summary and Issues

[1] Following a bench trial, Joseph Richardson was convicted of two counts of 

child molesting, one count as a Class B felony and the other as a Class C felony. 

Richardson appeals his convictions, raising two issues for our review, which we 

restate as: 1) whether the evidence is sufficient to sustain his convictions, and 2) 

whether his convictions violate the continuing crime doctrine. Concluding the 

evidence is sufficient and Richardson’s convictions do not violate the 

continuing crime doctrine, we affirm.

Facts and Procedural History

[2] In early 2012, twelve-year-old J.W. and her cousin, M.M., visited J.W.’s close 

friend, M.H., at M.H.’s home. At some point, the trio went to eighteen-yearold Richardson’s home, who lived with his parents next door. Richardson 

provided alcohol to J.W. J.W. then began to feel ill and went outside. 

Richardson followed J.W. and suggested the pair go into the garage. As soon 

as they got into the garage, Richardson pulled J.W.’s pants down, but J.W. told 

him “no,” pulled her pants back up, and sat down on a couch in the garage 

where Richardson joined her. Transcript, Volume II at 14. Once seated, 

Richardson pulled down J.W.’s pants and underwear and digitally penetrated 

J.W.’s vagina. Richardson then stopped, took his pants and underwear off, and 

penetrated J.W.’s vagina with his penis. J.W. began crying, but did not tell 

Richardson to stop. Thereafter, Richardson returned to his house and J.W. 

returned to M.H.’s home. At some point, J.W. explained Richardson’s acts to 
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M.M. and M.M. immediately told J.W.’s mother, Heidi Coburn, who called 

law enforcement. Law enforcement later interviewed Richardson. Before

informing Richardson of J.W.’s allegations, the detective asked Richardson 

how old he believed J.W. was in early 2012. Richardson initially stated he 

believed J.W. was fourteen years old in early 2012, but later expressed 

uncertainty and claimed she may have been twelve or thirteen.

[3] On November 8, 2012, the State charged Robinson with two counts of child 

molesting, one count as a Class B felony and the other as a Class C felony. At 

trial, J.W. testified to Richardson’s acts. J.W.’s mother also testified. Coburn 

explained she had previously interacted with Richardson at least ten times in 

early 2012. The following exchange then occurred:

[State:] Did you have any concerns about the Defendant being 

around J.W.?

[Coburn:] I know J.W. was in her preteens and she kind of 

flirted, and I made comments to, Stay away from my daughter. 

She’s only 12.

[State:] Okay. So you made comments to Joseph Richardson to 

stay away from your daughter?

[Coburn:] Yes, ma’am. Yes, ma’am.

[State:] And you—

[Coburn:] On numerous times.

[State:] Okay. And did you specifically tell him her age?

[Coburn:] Yes.

[State:] Okay. Do you know how many times you had had 

those kind of conversations with him telling him to stay away 

because of how old she was?

[Coburn:] Yes, ma’am.

[State:] How many times?

[Coburn:] Almost every time I seen him.
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Id. at 34-55. Richardson also testified in his own defense, denying J.W.’s 

allegations and explaining he “always thought she was 14.” Id. at 53. 

Richardson was found guilty as charged and the trial court entered judgment of 

conviction on both counts. This appeal ensued.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

[4] When reviewing the sufficiency of the evidence needed to support a criminal 

conviction, we neither reweigh the evidence nor judge witness 

credibility. Smart v. State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015). Rather, we 

consider only the evidence supporting the judgment and any reasonable 

inferences arising from such evidence. Id. We will affirm a conviction unless 

“no reasonable fact-finder could find the elements of the crime proven beyond a 

reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citation 

omitted). 

B. Reasonable Belief Defense

[5] Richardson contends the evidence is insufficient to support his convictions. 

Specifically, he claims his testimony establishes he reasonably believed J.W. 

was at least fourteen years old. Child molesting is a Class B felony when a 

person performs or submits to sexual intercourse or deviate sexual conduct with 

a child under the age of fourteen. Ind. Code § 35-42-4-3(a) (2007). Child 
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molesting is a Class C felony when a person performs or submits to any 

fondling or touching of a child under the age of fourteen with the intent to 

arouse or to satisfy the sexual desires of either the child or the person. Ind. 

Code § 35-42-4-3(b) (2007). It is a defense to both offenses that the accused 

reasonably believed the child was at least fourteen years old at the time of the 

conduct. Garcia v. State, 936 N.E.2d 361, 364 (Ind. Ct. App. 2010) (citing T.M. 

v. State, 804 N.E.2d 773, 774-75 (Ind. Ct. App. 2004)), trans. denied. “Such a 

defense admits all the elements of the crime but proves circumstances that 

excuse the defendant from culpability.” Weaver v. State, 845 N.E.2d 1066, 1069 

(Ind. Ct. App. 2006), trans. denied. In order to invoke the defense, Richardson 

must prove by a preponderance of the evidence that he reasonably believed 

J.W. was at least fourteen years old when he molested her. See id. (noting that 

when a defense addresses only culpability, the defendant’s burden is to prove 

the defense by a preponderance of evidence).

[6] The evidence admitted at trial demonstrates J.W.’s mother told Richardson on 

numerous occasions prior to the acts of molestation that he needed to stay from 

J.W. because she was only twelve years old. In addition, prior to being told of 

J.W.’s allegations, Richardson expressed a lack of confidence in his knowledge 

of J.W.’s age, claiming to the detective he did not know her age and that J.W. 

may be twelve or thirteen years old. Therefore, Richardson’s argument that his 

testimony at trial established his reasonable belief J.W. was at least fourteen 

years old when he molested her is merely a request for this court to reweigh the 

evidence and reassess witness credibility, which we will not do. Smart, 40 
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N.E.3d at 966. We conclude Richardson did not prove his reasonable belief 

defense by a preponderance of evidence and the evidence is sufficient to support 

his convictions.

II. Continuing Crime Doctrine

[7] Richardson contends his convictions violate the continuing crime doctrine. 

Specifically, he argues his acts of digitally penetrating J.W. and then performing 

intercourse were continuous acts constituting a single transaction. We disagree.

[8] The continuing crime doctrine “reflects a category of Indiana’s prohibition 

against double jeopardy[,]” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 

2010), and “defines those instances where a defendant’s conduct amounts only 

to a single chargeable crime and prevents the State from charging a defendant 

twice for the same continuous offense[,]” Koch v. State, 952 N.E.2d 359, 373 

(Ind. Ct. App. 2011), trans. denied. Specifically, the doctrine “provides that 

actions that are sufficient in themselves to constitute separate criminal offenses 

may be so compressed in terms of time, place, singleness of purpose, and 

continuity of action as to constitute a single transaction.” Id.

[9] In Firestone v. State, 838 N.E.2d 468 (Ind. Ct. App. 2005), S.W. invited Bradley 

Griffin and Clay Firestone to her home. After having a few drinks, Griffin 

playfully tossed S.W. on the bed and S.W. explained she did not want to have 

sex. As S.W. attempted to rise from the bed, Griffin pinned her down by 

placing his knees on her shoulders. Griffin then removed S.W.’s pants and 

underwear and forced S.W. to perform oral sex on him. As Griffin continued 
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to force S.W. to perform oral sex, Firestone entered the bedroom and forced his 

penis inside S.W.’s vagina. Griffin and Firestone then switched places and 

Firestone pinned S.W. down and forced S.W. to perform oral sex on him. 

Firestone was later convicted of rape as a Class B felony and criminal deviate 

conduct as a Class B felony. 

[10] On appeal, Firestone contended his convictions violated the continuing crime 

doctrine, arguing his actions constituted a single transaction because both 

offenses occurred in a short period of time and in the same bedroom. We 

disagreed, noting, 

Firestone clearly committed two different offenses at different 

times. After he finished raping S.W., he took the time to switch 

places with Griffin by climbing on top of S.W. and shoving his 

penis in her mouth. The continuity of the actions does not 

negate the fact that they were completely different sexual acts 

committed at different times. It would be impossible for 

Firestone to have his penis inside S.W.’s vagina and in her 

mouth at the same time. Thus, because the rape was separate in 

time from the criminal deviate conduct, we cannot conclude that 

Firestone’s actions fall within the continuing crime doctrine.

Id. at 472.

[11] In Chavez v. State, 988 N.E.2d 1226 (Ind. Ct. App. 2013), trans. denied, Chavez 

was alone in a room with eight-year-old K.W. when he kissed K.W. on the 

mouth and inserted his tongue into her mouth. While kissing her, Chavez 

placed his hand on K.W.’s buttocks and breasts. Chavez then left the room, but 

later re-entered and a second encounter ensued. Chavez again kissed K.W. on 
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the mouth and inserted his tongue into her mouth. While kissing her, Chavez 

placed his hand on K.W.’s vagina, but outside her clothes. As to the first 

encounter, the State charged Chavez with three counts of child molesting as 

Class C felonies, citing the act of kissing J.W., touching her buttocks, and 

touching her breasts. As to the second encounter, the State charged Chavez 

with two counts of child molesting as Class C felonies, citing the act of kissing 

J.W. and touching her vagina outside her clothes. Chavez was convicted on all 

five counts.

[12] On appeal, Chavez argued his convictions violated the continuing crime 

doctrine, contending his acts were continuous and amounted to one single 

chargeable crime. We concluded Chavez only committed two chargeable acts 

of child molesting, not five. As to the first encounter, we acknowledged Chavez 

committed three different acts, but concluded the acts of touching J.W.’s 

buttocks and breasts were done “[w]hile kissing” J.W., and therefore “[t]hose 

three acts were so compressed in terms of time, place, singleness of purpose, 

and continuity of action as to constitute a single transaction.” Id. at 1229 

(citations and internal quotation marks omitted). We applied the same logic 

and reasoning to the second encounter. See id. at 1229-30. Ultimately, the trial 

court was instructed on remand to vacate three of the five convictions.

[13] Similar to Firestone, Richardson committed two different offenses at two 

different times. Richardson first pulled down J.W.’s pants and underwear and 

digitally penetrated J.W.’s vagina. Richardson then stopped and “took the 

time” to remove his pants and underwear. See Firestone, 838 N.E.2d at 472. He 
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then proceeded to insert his penis into J.W.’s vagina. And unlike the first and 

second encounters addressed in Chavez, Richardson did not commit one act 

“while” committing the other. See 988 N.E.2d at 1229. For these reasons, we 

conclude Richardson’s convictions do not violate the continuing crime 

doctrine.

Conclusion

[14] Richardson failed to satisfy his burden of proving he reasonably believed J.W. 

was at least fourteen years old when he molested her and we conclude the 

evidence is sufficient to sustain his convictions. We further conclude 

Richardson’s convictions do not violate the continuing crime doctrine. 

Accordingly, we affirm.

[15] Affirmed.

Vaidik, C.J., and Bailey, J., concur.