Appeal from the Allen Superior Court. Lower Court Cause No. 02D06-1103-FA-17. The Honorable John F. Surbeck, Jr., Judge.
ATTORNEY FOR APPELLANT: Zachary A. Witte, Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Eric Babbs, Deputy Attorney General, Indianapolis, Indiana.
Pyle, Judge. Barnes, J., and May, J., concur.
Statement of the Case
[¶1] Following a jury trial, Somchanh Amphonephong (" Amphonephong" ) was convicted of three counts of child molesting, one as a Class A felony and two as Class C felonies. At sentencing, Amphonephong informed the trial court that he wanted to appeal his convictions. The trial court told Amphonephong that it would appoint appellate counsel, but it failed to do so. Eighteen months later, Amphonephong filed a petition seeking permission to file a belated notice of appeal. The trial court, acknowledging that it had failed to appoint appellate counsel, granted Amphonephong's petition.
[¶2] On appeal, Amphonephong challenges only his Class C felony child molesting conviction as charged in Count III, arguing that there is insufficient evidence to support the conviction. The State cross appeals the trial court's order granting Amphonephong permission to file a belated notice of appeal. The State acknowledges that Amphonephong was not at fault for the failure to timely file a notice of appeal but contends that we should reverse the trial court's order and remand for a hearing on Amphonephong's petition because: (1) the trial court did not make an express finding that Amphonephong was not at fault and was diligent in his attempt to file the belated appeal; and (2) Amphonephong failed to specifically allege that he was diligent.
[¶3] Concluding that the trial court did not abuse its discretion by allowing Amphonephong to file a belated notice of appeal and that there is sufficient evidence to support Amphonephong's Class C felony child molesting conviction as charged in Count III, we affirm.
[¶4] We affirm.
[¶5] 1. Whether the trial court erred by granting Amphonephong permission to file a belated notice of appeal.
[¶6] 2. Whether sufficient evidence supports Amphonephong's Class C felony child molesting conviction as charged in Count III.
[¶7] On June 5, 2010, then five-year-old J.B. spent the night with her aunt, Geri Westmoreland (" Aunt" ), who dated and lived with Amphonephong. That night, J.B. got into bed with Aunt and Amphonephong,
and she lay down in between them. Aunt was asleep, J.B. was lying on her back, and Amphonephong was lying on his side and facing J.B. when " [h]e put his hands in [J.B.'s] pants" and " in her underwear." (Tr. 148). He touched the " [i]nside" of her " private" that she used to " [p]ee." (Tr. 149). About ten times, J.B. " kept on putting his hands out but he kept on putting his hands back in." (Tr. 149-50).
[¶8] The next day, J.B. told her Aunt what Amphonephong had done to her. Aunt then asked her other niece, N.B., who was also five years old, if Amphonephong had done anything to her. N.B. indicated that he had touched her and had sexual intercourse with her on more than one occasion when she was four and five years old. After J.B.'s mother learned what had happened, she called the police. J.B. and N.B. were then interviewed by the Child Advocacy Center, and they each had a physical examination.
[¶9] The State charged Amphonephong with: Count I, Class A felony child molesting for his act of sexual intercourse against N.B.; Count II, Class C felony child molesting for his act of touching N.B.; and Count III, Class C felony child molesting for his act of touching J.B.
[¶10] The trial court held a two-day jury trial on June 5-6, 2012. At the beginning of trial, Amphonephong's counsel explained to the jury that Amphonephong was from Laos and that he did not read or write English but understood it.
[¶11] During the trial, J.B. testified to the facts above, and she testified that she did not remember if Amphonephong's eyes were open or closed. On cross examination, Amphonephong's counsel questioned her about her statements made to the interviewer at the Child Advocacy Center and pointed out inconsistencies between those prior statements and her trial testimony, such as her statements that she tried to pull his hands out of her pants only once and that he was sleeping when he touched her. J.B. acknowledged that she had made those statements to the interviewer. During closing arguments, Amphonephong's counsel argued that there was ...