from the Wabash Circuit Court The Honorable Robert R.
McCallen, II, Judge Trial Court Cause No. 85C01-1610-JD-52
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General,
Katherine Cooper Deputy Attorney General Indianapolis,
Vaidik, Chief Judge.
D.P. appeals his adjudication as a juvenile delinquent based
on the juvenile court's finding that he committed an act
that would be Level 4 felony child molesting if committed by
an adult. He argues that the evidence is insufficient. Based
on the evidence presented at the fact-finding hearing, we do
not believe that a reasonable factfinder could find beyond a
reasonable doubt that D.P. touched or fondled the victim with
the intent to arouse or satisfy sexual desires. We therefore
find that the evidence is insufficient to support the true
finding for Level 4 felony child molesting.
and Procedural History
In August 2016, the Department of Child Services contacted
the Wabash City Police Department about child-molesting
allegations that four-year-old B.M. had recently made against
ten-year-old D.P. B.M.'s father and D.P.'s mother
lived together, and on the weekends B.M. would visit her
father, which is where the molestations allegedly occurred.
B.M. made the allegations during a videotaped interview at
the Child Advocacy Center in Marion, Indiana. As D.P.
acknowledges on appeal, B.M. made very specific and
incriminating allegations against him in the videotaped
interview, see Appellant's Br. p. 6, but this
video was not admitted into evidence at the fact-finding
hearing under our Protected Person Statute. See Ind.
Code § 35-37-4-6.
In October 2016, the State filed a petition alleging that
D.P. was a delinquent child for committing acts that would be
Level 3 felony child molesting (sexual intercourse or other
sexual conduct) and Level 4 felony child molesting (fondling
or touching with intent to arouse or satisfy sexual desires)
if committed by an adult.
A fact-finding hearing was held in December 2016.
Four-year-old B.M. testified at the hearing. As the juvenile
court later explained, B.M. was "very young" and
testifying was "difficult" for her. Appellant's
App. Vol. II p. 44. B.M. testified that, on one occasion,
D.P. told B.M. to "come here." Tr. Vol. II p. 20.
He then touched B.M. on her "hooha" and her
"butt" with his "hand." Id. at
20-21; see also Ex. 1 & 2. B.M. identified
her "hooha" as the genital area on an anatomical
drawing of a little girl by drawing a circle. See
Tr. Vol. II pp.18-21; Ex. 1. B.M. had her clothes on at the
time and did not feel the touching. Tr. Vol. II pp. 23,
The juvenile court found the Level 4 felony child molesting
allegation true (but not the Level 3 felony) and adjudicated
D.P. a delinquent child. The court held a dispositional
hearing in February 2017 and ordered D.P. to serve ten days
in a detention facility and placed him on probation for
D.P. now appeals.
D.P. contends that the evidence is insufficient to support
the true finding for Level 4 felony child molesting. Though
juvenile adjudications are not criminal matters, when the
State petitions to have a child adjudicated delinquent for an
act that would be a crime if committed by an adult, due
process requires the State to prove its case beyond a
reasonable doubt. S.M. v. State, 74 N.E.3d 250, 253
(Ind.Ct.App. 2017). When reviewing whether the State's
evidence was sufficient to meet its burden, our standard is
familiar. Id. We view the facts and the reasonable
inferences from them in the light most favorable to the true
finding. Id. We neither reweigh the evidence nor
re-evaluate witness credibility. Id. We will affirm
unless no reasonable fact-finder could have found the
elements of the crime proven beyond a reasonable doubt.
Id. We may affirm the judgment even if it is
supported by only the uncorroborated testimony of the victim.
To sustain the true finding that D.P. committed an act that
would constitute Level 4 felony child molesting if committed
by an adult, the State was required to prove beyond a
reasonable doubt that D.P., with a child under fourteen years
of age (B.M.), performed or submitted to fondling or touching
with the intent to arouse or satisfy the sexual desires of
either B.M. or himself. Ind. Code § 35-42-4-3(b);
Appellant's App. Vol. II pp. 46-47. We find that on this
sparse record, the State ...