Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015 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

Stanley L. Campbell 

Fort Wayne, Indiana 

ATTORNEY FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana 

Michael Gene Worden 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

Ricky B. Akins, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

July 27, 2015 

Court of Appeals Case No. 

02A03-1412-CR-439 

Appeal from the Allen Superior 

Court 

Cause No. 02D05-1307-FA-29 

The Honorable Frances Gull, Judge 

Friedlander, Judge. 
Court of Appeals of Indiana | Memorandum Decision 02A03-1412-CR-439 |July 27, 2015 Page 2 of 9

[1] Ricky Akins was convicted of three counts of Child Molesting, two as class A 

felonies 1

 and one as a class C felony.2 On appeal, Akins challenges his 

convictions and presents two restated issues for our review. We raise a third issue 

sua sponte. 

1. Was there sufficient evidence to sustain Akins’s convictions? 

2. Did the trial court abuse its discretion when it admitted the 

testimony from the sexual assault nurse? 

3. Did the trial court violate the double jeopardy clause of the 

Indiana Constitution? 

[2] We affirm in part, reverse in part, and remand. 

[3] The facts favorable to the convictions are as follows. Jody Boisseau met Akins at 

work and the two began dating. Late in December of 2012, Akins moved in with 

Boisseau and her six-year-old daughter, J.H.3

 When Boisseau worked third shift, 

she would leave J.H. with Madeline Hill and Madeline’s twelve-year-old daughter 

Y.H. On two occasions, Boisseau left J.H. with Akins so she could go to the bar 

with a friend. On one of those occasions, Akins sexually abused six-year-old J.H. 

 

1

The version of the governing statute, i.e., Ind. Code Ann. § 35-42-4-3 (West, Westlaw 2013), in effect at the 

time this offense was committed classified it as a class A felony. This statute has since been revised and in its 

current form reclassifies this as a Level 1 felony. See I.C. § 35-42-4-3 (West, Westlaw current with all 2015 

First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new 

classification, however, applies only to offenses committed on or after July 1, 2014. See id. Accordingly, this 

offense retains the former classification. 

2

 Under the new statute, this would be a Level 4 felony. 

3

 J.H. was born on October 13, 2006. 
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[4] On the night in question, J.H. built a fort in her bedroom with blankets and 

pillows. She placed stuffed animals, pillows, blankets, and a night light inside of 

the fort. J.H. was awakened from her sleep when Akins opened the door and 

entered her bedroom. Akins knelt down to the ground, where J.H. was sleeping, 

pulled up her night gown, and removed her underwear. Akins touched, licked, 

and put his finger inside of her sexual organ. J.H. said the touch felt “weird”; “I 

moved my legs a little he [Akins] kept undoing it.” Transcript at 47-48. Akins 

quickly left J.H.’s room when he heard Boisseau open the front door. Boisseau 

then went to J.H.’s room and kissed her goodnight. J.H. immediately told her 

mother Akins had touched her “private”,4

 but Boisseau did not believe her 

daughter. Id. at 44. Two or three weeks later, J.H. told Y.H. and Madeline about 

the incident. Madeline called the police to inform them of the incident. 

[5] On July 15, 2013, the State charged Akins with two counts of class A felony child 

molesting (Counts I and II) and a third count of class C felony child molesting 

(Count III). Count I was based on the allegation that Akins placed his mouth on 

or in J.H.’s female organ. Count II alleged Akins committed sexual deviate 

conduct by placing his finger inside J.H.’s female organ. Count III alleged that 

Akins fondled and/or touched J.H.’s female organ. On October 16, 2014, the jury 

found Akins guilty as charged. Akins was sentenced to an aggregate term of forty 

years. 

 

4

 J.H. indicated that her “private” is something she uses to “go pee.” Transcript at 46. 
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1.

[6] Akins contends the evidence is insufficient to support his child molesting 

convictions for the two class A felonies.5

 When reviewing the sufficiency of the 

evidence needed to support a criminal conviction, we neither reweigh evidence nor 

judge witness credibility. Henley v. State, 881 N.E.2d 639 (Ind. 2008). “We 

consider only the evidence supporting the judgment and any reasonable inferences 

that can be drawn from such evidence.” Id. at 652. “[This court] will affirm 

unless no reasonable fact-finder could have found the crime proven beyond a 

reasonable doubt.” Dumes v. State, 23 N.E.3d 798, 801 (Ind. Ct. App. 2014).

[7] Akins argues J.H.’s testimony is not credible. He notes that Boisseau did not 

believe her daughter at the time of the incident. Boisseau testified that she believed 

her daughter was in a “lying phase” and J.H. was upset because Boisseau had 

punished her by taking away her electronics. Transcript at 213.

[8] To support the convictions for Counts I and II as alleged, the State had to prove 

Akins was over twenty-one years of age and knowingly or intentionally performed 

deviate conduct on J.H. when the child was under fourteen years of age. See I.C. § 

35-42-4-3. Deviate sexual conduct involves a sex organ of one person and the 

mouth of another, or the penetration of a sex organ by an object. Ind. Code Ann. § 

 

5

 Akins asserts a double jeopardy argument with regards to Count III. We will address this as a separate 

issue. 
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35-41-1-9 (West, Westlaw current with all 2015 First Regular Session of the 119th 

General Assembly legislation effective through June 28, 2015). 

[9] Evidence established that Akins was forty-five at the time, and J.H. was six years 

old. J.H. testified that Akins rubbed his finger inside and outside her “private” and 

he stuck his tongue inside her “private.” Transcript at 46. Her testimony was 

consistent with her prior statements to her mother, babysitter, and the police 

officer. “A conviction of child molesting may rest on the uncorroborated 

testimony of the victim.” Young v. State, 973 N.E.2d 1225, 1227 (Ind. Ct. App. 

2012). Accordingly, we reject Akins’s invitation to reweigh the evidence and to 

determine the credibility of the witnesses. The State presented sufficient evidence 

to support the child molesting convictions.

2. 

[10]Akins contends the trial court abused its discretion when it admitted testimony 

from the sexual assault nurse who examined J.H. The nurse testified regarding the 

statements made by J.H. during the course of the examination which were 

consistent with her trial testimony. Akins argues the nurse’s testimony is 

inadmissible hearsay. 

[11]A trial court has broad discretion to admit or exclude evidence. Blount v. State, 22 

N.E.3d 559 (Ind. 2014). We will not reverse such a decision unless it is clearly 

contrary to the logic and effect of the facts and circumstances of the case or 

misinterprets the law. VanPatten v. State, 986 N.E.2d 255 (Ind. 2013). 
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[12]A hearsay statement is one “other than one made by the declarant while testifying 

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

Ind. Evidence Rule 801(c). Hearsay statements are not admissible, except 

pursuant to certain exceptions within the Rules of Evidence. Evid. R. 802. 

[13] One such exception generally permits statements made for the purpose of medical 

diagnosis or treatment to be admitted into evidence, even when the declarant is 

available. Evid. Rule 803(4). To fit in with this exception, the statements must be 

“made by persons who are seeking medical diagnosis or treatment and describing 

medical history, or past or present symptoms, pain, or sensations, or the inception 

or general character of the cause or external source thereof insofar as reasonably 

pertinent to diagnosis or treatment.” VanPatten v. State 986 N.E.2d at 260. Rule 

803(4)’s exception is grounded in the belief that people are unlikely to lie to their 

doctors because doing so might jeopardize their opportunity to be made well. 

VanPatten v. State 986 N.E.2d 255. 

[14]The court has established a two-step analysis for admission of evidence under Rule 

803(4): first, “is the declarant motivated to provide truthful information in order to 

promote diagnosis and treatment,” and second, “is the content of the statement 

such that an expert in the field would reasonably rely on it in rendering diagnosis 

or treatment.” Id. at 255. “Statements made by victims of sexual assault or 

molestation about the nature of the assault or abuse—even those identifying the 

perpetrator—generally satisfy the second [step] of the analysis because they assist 

medical providers in recommending potential treatment for sexually transmitted 
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disease, pregnancy testing, psychological counseling, and discharge instructions.” 

Id. at 260. 

[15] In VanPatten, the court recognized that the first factor is satisfied by the 

assumption individuals do not lie to their doctors because they want to receive the 

proper medical treatment. The presumption is not the same, however, in cases 

where the declarant is a child. In such cases, the court requires a “more robust 

evidentiary foundation.” Id. at 257. 

[16]Where the declarant is a child, there must be evidence that the child understood 

the professional’s role. “Such young children may not understand the nature of the 

examination, the function of the examiner, and may not necessarily make the 

necessary link between truthful responses and accurate medical treatment.” Id. at 

261. Accordingly, “there must be evidence that the declarant understood the 

professional’s role in order to trigger the motivation to provide truthful 

information.” Id. Here, J.H. expressly testified that she understood the nurse’s role 

was to make sure she was well and that she knew the importance of being truthful. 

Both factors were established in this case. Thus, the challenged testimony was 

properly admitted as an exception to the hearsay rule. 

3. 

[17]Although not directly, Akins appears to contend that Count III, his class C felony 

conviction, should be set aside on double jeopardy grounds. Although his slender 

argument is not well developed and risks waiver, we choose to address it on the 

merits. See White v. State, 25 N.E.3d 107, 130 (Ind. Ct. App. 2014). (“[w]e raise the 
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issue of double jeopardy sua sponte because a double jeopardy violation, if shown, 

implicates fundamental rights”). 

[18]A conviction violates the double jeopardy clause of the Indiana Constitution “if, 

with respect to either the statutory elements of the challenged crimes or the actual 

evidence used to convict, the essential elements of one challenged offense also 

establish the essential elements of another challenged offense.” Id. Akins contends 

the actual evidence used to convict him of Count II and Count III was the same. 

“Dual convictions cannot stand if a defendant demonstrate[s] a reasonable 

possibility that the evidentiary facts used by the fact-finder to establish elements of 

one offense may have also been used to establish the essential elements of a second 

challenged offense.” Davies v. State, 730 N.E.2d 726, 741 (Ind. Ct. App. 2000). 

[19]Count III, child molesting by fondling, was established by J.H.’s testimony that 

Akins rubbed her vaginal area both on the outside and the inside. Count II, child 

molesting by digital penetration, was established by this same testimony. Further, 

it is apparent that Counts II and III were committed within moments of each other 

during the same incident. In Davies v. State, the court found a double jeopardy 

violation reasoning, “[A] single incident of molestation without independent 

evidence of fondling could not support both molesting by criminal deviate conduct 

and molesting by fondling. Under these facts the fondling was part of the 

penetration.” Id. at 741. Cf. Sloan v. State, 947 N.E. 2d 917 (2011) (finding no 

double jeopardy violation because although the act occurred together, there was 

independent and distinct evidence of both penetration of vagina and fondling of 

breast). Under these circumstances there was a double jeopardy violation because 
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Akins was convicted of child molesting on two counts based upon the same act 

without independent evidence of deviate conduct and fondling. Therefore, we 

remand this case to set aside the class C felony conviction. 

[20]Judgment affirmed in part, reversed in part, and remanded. 

Baker, J., and Najam, J., concur.