Court of Appeals of Indiana | Memorandum Decision 79A04

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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 Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

William Coleman , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff March 8, 2016 Court of Appeals Ca se No. 79A04

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- 955 Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial C ourt Cause No. 79D02

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- FA

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Mathias , Judge .Court of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 2 of 12 [1] William Coleman (“Coleman”) was convicted in Tippecanoe Superior Court of C lass A felony child molesting. Coleman appeals his conviction and raises the following two issues: I. Whether the trial court abused its discretion when it gave an additi onal jury instruction during jury deliberations ; and,
II. Whether the State presented sufficient evidence that Coleman penetrated the victim’s sex organ.

[2] We affirm.


### Facts an d Procedural History
[3] On or about April 21, 2012, forty

- one - year - o l d Coleman attended a party at a friend’ s home, which was also attended by the friend’s children, including

seven - year - old K.B. Coleman had been drinking and asked to sleep on his f riend’s co uch. During the middle of the night, Coleman entered K.B.’s bedroom and pulled her pants and underwear down to her ankles. He then touched K.B.’s vagina with his finger and moved his finger around while his finger was “partly in” her vagina. Tr. p. 103.

[4] Co leman then briefly left K.B.’s bedroom to retrieve a phone or camera. K.B. pulled her underwear and pants back up while he was gone, but when Coleman returned he pulled her pants and underwear back down. K.B. then heard the sound of a photograph be ing take n and saw two flashes. Coleman pulled K.B.’s underwear and pants ba ck up and left K.B.’s bedroom. K.B. then heard the sound of the front door of the house closing.Court of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 3 of 12 [5] The next morning, K.B. reporte d the incident to her parents. Her parents reported the incide nt to the police , and K.B. was taken to Riley Hospital for an examinat ion by a sexual assault nurse. The nurse found a piece of redundan t skin on K.B.’s labia majora. The exam also indicated swelling or thickening of K.B.’s hymen.

[6] The pediatrician who al so examined K.B. concluded that thickening of the hymen could be a normal variation and scheduled K.B. for a follow up

e xamination to rule out trauma. When K.B. was reexamined two weeks after the first exam, her hymen was no longer thickened , and its appea rance was consistent with what one would exp ect in a seven

- year - old child. Therefore, the pediatrician concluded K.B.’s thickened hymen was consistent with trauma and could have been caused by finger contact.

[7] The piece of redundant skin found on K.B.’s labia majora was sent to the In diana State Police Laboratory. A forensic biologist concluded that the DNA from the collected sample was consistent with Coleman’s DNA.

[8] On June 2, 2014, Coleman was charged with Class A felony child molesting and C lass C felo ny child molesting. A two

- day jury tr ial commenced on June 9, 2015. During closing arguments, Coleman admitted to touching K.B. in a sexual manner, but argued that the State failed to prove that Coleman penetrat ed her sex organ with his finger

.
[9] During deli berations, the jury directed numerous questions to the trial court concerning the Class A felony charge and specifically concerning the element ofCourt of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 4 of 12 penetration. The trial court told the jury on each occasion that the court could not answer its questions.

[10] Eventually, the jury informed the court that it had reached an impasse on the Class A felony charge. The court asked what could be done to assist the jury , and the foreperson specifically requested a le gal definition of penetration. Therefore, over Coleman ’s objection, the trial court determined that it was appropriate to re

- read all of the final instructions to the jury and to include the following statement, which the court originally omitted from the State’s proposed final instructions: “Penetration does not require that the vagina be penetrated, only that the female sex organ, including the external genitalia, be penetrated.” Tr. p. 384.

[11] The jury returned to its deliberations and found Coleman guilty of both Class A and Class C felony child molesting. At the sentencing hearing, the trial court merged the two counts and entered judgment of conviction onl y on the Class A felony count. The court then ordered Coleman to serve thirty

- five year s in the Department of Correction, with five years suspended to prob ation. Coleman now appeals. 

### Jury Instruction
[12] Coleman argues that the trial court abused its discretion when it gave an additional jury instruction after jury deliberations had begun and the jury had reached an impasse on the Class A felony charge. “We revi ew a trial court’ s instructions to the jury for an abuse of discretion.” Isom v. State , 31 N.E.3d 469,Court of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 5 of 12 484 (Ind. 2015). The trial court abuses its discretion “when the instruction is erroneous and the instructions taken as a whole misstate the law or other wise mislead the jury.” Id . at 484

- 85.

[13] As a general rule, after the jury begins its deliberations, the trial court should not giv e any additional instructions. Hero v. State , 765 N.E.2d 599, 602 (Ind. Ct. App. 2002) (citing Crowdus v. State , 431 N.E.2d 796 , 798 (Ind. 1982)), trans. denied

. “This rule prevents the trial court from giving special emphasis, inadvertent or otherwise, to a particular issue in the case, and thus avoids the possibility that the additional instruction might tell the jury what it ou ght to do concerning that issue.” Dowell v. State , 973 N.E.2d 58, 60 (Ind. Ct. App. 2012) (citing Crowdus , 431 N.E.2d at 798).

[14] “[O] ne limited and narrow exception” to that “strict rule ” exists. Graves v. State , 714 N.E.2d 72 4 , 726 (Ind. Ct. Ap p. 1999). “ [T] he court may modify its instructions when it is faced with an omitted instruction or an erroneous instruction, so long as it is fair to the parties. ” Hero, 765 N.E.2d at 602 ( citing Jenkins v. State , 424 N.E.2d 1002, 1003 (Ind. 1981 ) ). Specifically, [i] t is only when the jury question coincides with an error or “legal lacuna” in the final instructions that a response other than rereading from the body of final instructions is permissible. A “lacuna” is an “empty space or missing part; a gap.” If the tria l court decides to give an additional instruction because the question relates to a “legal lacuna,” the trial court must reread all of the instructions so that the additional instruction will not be over - emphasized.Court of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 6 of 12 Dowell , 973 N.E.2d at 60 (internal citat ions omitted).

[15] In this case, the trial court initially declined to give the following instruction, which was included in the State’s proposed final instructions: Penetration does not require that the vagina be penetrated, only that the female sex organ, in cluding the ext ernal genitalia, be penetrated.
Tr. p. 384. During its deliberations, the jury sent questions to the trial court concerning the “legal definition” of penetration and the definition of the “sex organ.” Tr. pp. 367 , 369. Each time, t he court declined to answer the questions and advised the jury to re

- read the final instructions.

[16] Eventually, the jury reached an impasse in its deliberation of the Class A felony child molesting charge. The foreperson informed the court that a definition of penetr ation would assist them with their deliberations on that charge. Tr. p. 376.

[17] The refore, the trial court decided to give the State’s proposed final instruction that it originally declined to tender to the jury and stated: I believe [the omitted instruction] is an accurate statement of the law but the court was reluctant to provide that in the instruction in the past because it wasn’t part of the approved instruction in the case law that I found. However, based upon what they’ve indicated to the c ourt now I find that there is a legal lacuna which I think is the proper terminology which means that the jury is confused about a legal concept that has not been sufficiently explained in the instructions. And so I’m going to find that it would be proper to reinstruct the jury with theCourt of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 7 of 12 additional part of the instruction that the State had requested which is penetration does not require the vagina to be penetrated only that the female sex organ including the external genitalia be penetrated.
Tr. pp. 379

- 80 (emphasis added)

. The trial court then replaced the original instruction with the instruction containing the previously omitted language concerning penetration and re - read the court’s final instructions in their entirety to the jury. See T r. p p
. 380

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.
[18] Im portantly, t he additional instruction tendered to the jury is a correct statement of law. 1 See Moral es v. State , 19 N.E.3d 292, 2 98 (Ind. Ct. App. 2014) , trans. denied ; Stetler v. State , 972 N.E.2d 404, 407

- 08 (Ind. Ct. App. 2012), trans. denied ; Smith v. State , 779 N.E.2d 111, 115 (Ind. Ct. App. 2002) , trans. denied ; see also Ind. Code § 35

- 31.5

- 2

- 221.5 (replacing Ind. Code § 35

- 41

- 1

- 9)

. Also, “[t] he purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Overstreet v. State , 783 N.E.2d 1140, 1163 ( Ind. 2003). Moreover, the additional instruction properly clarified the legal meaning of the term “penetration” for the jury. See Hero , 765 N.E.2d at 602 (stating that “[b] ecause the jury question coincided with a legal lacuna

1 For this reason, we reject Coleman’s argument that no evidence support s giving the instruction or that the court “resolved an evidentiary deficiency by” giving the additional penetration instruc tion. See Appellant’s Br. at 13

- 14.Court of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 8 of 12 present in the tendered instr uctions, the lower court had the authority to do more than just re

- read the or iginal instructions”).

[19] Moreover, w e are not persuaded by Coleman’s argument that the trial court gave the jury an impermissible “Allen charge,” which is a “supplemental instr uction suggesting to an apparently deadlocked jury that it should reach a verdict, or similar admonishment which might encourage the jury to u nduly compromise the verdict.” See Clark v. State , 597 N.E.2d 4, 7 (Ind. Ct. App. 1992), trans. denied ; see also A llen v. United States , 164 U.S. 492 (1896); Lewis v. State , 424 N.E.2d 107, 109 (1981) (stating that an “Allen charge” is a “designation given to a supplemental charge given by a trial judge to an apparently deadlocked jury”).

[20] Nothing in the record indicat es that the trial court believed tha t the jury was deadlocked. The jury’s questions to the court during its deliberations reflect its confusion over the meaning of the term “penetration.” The trial court eventually determined that a gap or “legal lacuna” in the instructions prevented the jury from reaching a verdict after the foreperson informed the court that a definition of penetration would assist them with their deliberations. Tr. p. 376. The trial court reasonably believed that the jury was confused, and further clarification of the law was appropriate and necessary. Simply, no evidence in the record suggests that the additional instruction was given to coerce the jury into reaching a verdict that was not truly unanimous.Court of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 9 of 12 [21] We al so conclude that Coleman was not prejudiced when the jury was given the additional instruction. The trial court noted that tendering only the additional penetration instruction to the jury would be improper. Tr. p. 380. Therefore, the trial court re

- read t he court’s final instructions to the jury in their entirety , including the penetration instruction. The additional instruction was not emphasized in any way when the final instructions were re

- read to the jury. T he additional penetration instruction provid ed a legal definition. 2 It did not unnecessarily emphasize a particular evidentiary fact or any witness testimony.

[22] For all of these reasons, we conclude that the trial court did not abuse its discretion when it gave the additional penetration instructio n to the jury during its deliberations.


### Sufficient Evidence
[23] When the sufficiency of evidence is challenged, we neither reweigh the evidence nor judge the credibility of witnesses. Chappell v. State , 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State , 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied . Rather, we recognize the exclusive province of the trier of fact to weigh any conflicting evidence , and we consider only the probative evidence supporting the conviction and the reasonable inferenc es to be drawn therefrom. Id

. If substantial evidence of probative value exists from which a reasonable trier of fact could have drawn the conclusion that the

2 Trial courts have discre tion to give instructions that include definitions of words or phrases. See Erickson v. State , 439 N.E.2d 579 , 580 (Ind. 1982).Court of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 10 of 12 defendant was guilty of the crime charged beyond a reasonable doubt, then the verdict will not be disturbed. Baumgartner v. State , 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

[24] Coleman argues that the evidence is insufficient to sustain his Class A felony child molesting conviction because the State failed to prove that his finger penetrated K.B.’s sex organ
. Appellant’s Br. at 17; s ee also Indiana Code § 35

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- 3(a)(1); Appellant’s App. p. 59 (charging Coleman with performing deviate sexual conduct “to wit: an act involving the hand and/or finger of [Coleman] and the vagina of K.B.”). On the date Coleman committed the offense, d eviate sexual conduct was defined as “an act involving . . . the penetration of the sex organ or anus of a person by an object.” 3 See former Ind. Code § 35

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. 4

[25] K.B. testified that Coleman touched her vagina with his finger and moved his finger around. Tr. p. 102. She explained that his finger was partly “ on top of skin and partly in.” Tr. p. 103. She testifi ed that it felt uncomfortable. Id

.
[26] Dr. Tara Harris, who specializes in child abuse pediatrics, observed that K. B.’s hymen appeared swollen or thickened, which is not “the typical appearance [she] woul d see on a prepubertal child.” Tr. p. 176; see also tr. pp. 180

- 81. Dr.

3 The trial court instructed the jury by reading the charging information and the statutory definition of deviate sexual co nduct. Tr. pp. 354, 357. D uring closing arguments, the State argued that it had proven that Coleman penetrated K.B.’s “sex organ” with his finger. Tr. pp. 339, 351.
4 Effective July 1, 2014, the General Assembly repealed the former statute defining de viate sexual conduct and replaced it with Indiana Code section 35

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- 221.5, which defines “other sexual conduct” as “an act involving . . . the penetration of the sex organ or anus of a person by an object.”Court of Appeals of Indiana | Memorandum Decision 79A04

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- 955 | March 8, 2016 Page 11 of 12 Harris also explained that the hymen is “a thin piece of tissue that surrounds the edges of the vaginal opening.” Tr. p. 176. Dr. Harris used diagrams and photographs, which were admitted as exhibits to describe the female geni talia to the jury.

[27] Dr. Harris reexamined K.B. two weeks after the initial exam to determine whether the swollen appearance of K.B.’s h ymen was the result of trauma. During the follow up examination, Dr. Harris observed that K.B.’s hymen appeared “flat and shiny” as she would “ex pect for a prepubertal child.” Tr. p. 186. Therefore, the doctor concluded that the swollen appearance of K.B.’s hymen during the first exam was consistent with a “history of the trauma to that area.” Tr. p. 187. Dr. Harris also agreed that the “thickening or swelling of the hymen” indicated “that something actually came into conta ct” with it. T r. p. 188. She also explained that in a prepubescent female, the “hymen is kind of tucked up inside the body” . . . [s]o, to get to the hymen the labia majora have to be separated . . . when the labia majora are in their normal position they are covering a ll those internal structures.” Tr. pp. 193

- 94. Finally, Dr. Harris testified that if “there is just contact with those labia majora there is no way to [] th en cause changes on the hymen.” Tr. p. 194.

[28] Under these facts and circumstances, the evidence was sufficient to prove that Coleman used his finger to penetrate K.B.’s sex organ. We therefore affirm Coleman’s conviction for Class A felony child molesting.Court of Appeals of Indiana | Memorandum Decision 79A04

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### Conclusion
[29] The trial court did not abuse its discretion when it gave the additional penetrati on instruction after t he jury began deliberating. Also, the State presented sufficient evidence to sustain the jury’s guilty verdict on the Class A felony child molesting count. We therefore affirm Coleman’s conviction for Class A felony child molesting.

[30] A ffir med

.
Kirsch, J., and Brown, J., concur.