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Oosta v. State

Court of Appeals of Indiana

February 21, 2014

JOHN C. OOSTA, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE ELKHART SUPERIOR COURT. The Honorable George W. Biddlecome, Judge. Cause No. 20D03-1011-FC-17.

ATTORNEY FOR APPELLANT: ELIZABETH A. BELLIN, Elkhart, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, RICHARD C. WEBSTER, Deputy Attorney General, Indianapolis, Indiana.

BAKER, Judge. NAJAM, J., and CRONE, J., concur.

OPINION

MEMORANDUM DECISION -- NOT FOR PUBLICATION

BAKER, Judge

Oosta victimized his ten-year-old niece and now appeals his convictions and sentence for two counts of Child Molesting,[1] both as class C felonies. More particularly, Oosta argues that there was insufficient evidence to convict him. Additionally, Oosta contends that his aggregate twelve-year sentence is inappropriate in light of the nature of the offenses and his character and requests that we revise it pursuant to our authority under Indiana Appellate Rule 7(B). Finding sufficient evidence and concluding that Oosta's sentence is not inappropriate, we affirm.

FACTS

In the summer of 2010, Oosta lived with his wife, Wendy, and their young daughter, T.O., in a mobile home at Brookdale Manor in Elkhart County. Wendy's sister, Tammy, and her children, M.B., age ten, and D.B., age eleven, would visit and spend nights and weekends at the Oosta home. Wendy was suffering from several illnesses, including cancer, so Oosta would watch the children while they were at his home. Oosta would take the children swimming, to the park, and to the store with him.

One night in July 2010, Oosta took M.B., D.B., and T.O. to Walmart to buy items for the pool. The children were looking at games, and D.B. gave M.B. a video game and told her to ask Oosta if he would buy it for them. M.B. took the game to Oosta, who was in another aisle, and he told M.B. to put the game in the cart. While M.B. was standing by the cart, Oosta reached over, touched her vagina over her clothing and rubbed it. M.B. told Oosta to stop touching her, and he stopped when D.B. and T.O. came around the corner into the aisle. Oosta and the children returned home and M.B. and D.B. stayed over that night.

The next day, Oosta took M.B., D.B., and T.O. to the swimming pool. M.B. was standing in the pool and Oosta touched her vagina with his foot. M.B. told Oosta to stop and Oosta asked why. M.B. told Oosta that she did not like it, and Oosta complied. However, Oosta repeated this act several times.

After they were finished swimming, Oosta drove M.B., who was sitting in the passenger seat, D.B., who was sitting in the backseat behind Oosta, and T.O., who was sitting behind M.B., back home. When they reached the driveway, Oosta reached over and rubbed M.B.'s vagina with his hand. M.B. told him to stop and Oosta stopped. M.B. turned and told D.B. that Oosta was touching her. Oosta said it was none of D.B.'s business, to which D.B. replied that it was his business because M.B. was his little sister. Oosta told D.B. to mind his own business and ordered him and T.O. to go into the house. When Oosta was alone in the vehicle with M.B., he told her to keep it a secret that he had touched her.

M.B. and Oosta went into the house, and M.B. attempted to use the telephone to call her mother to get her, but Oosta prevented her by unplugging the telephone. M.B. became angry and left the house to walk home. Oosta informed Wendy, who was in bed, that she might want to go after M.B., who had just left to walk home. Wendy got dressed and drove after M.B., finding her niece at the playground near the entrance to the mobile home park. M.B. was crying as she sat in a swing. Wendy asked M.B. if she wanted to go home. M.B. nodded " yes" and Wendy started to drive M.B. home, but encountered M.B.'s father on the ...


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