COA Reverses Child Molesting Finding Against 10-Year-Old

Covington for www.theindianalawyer.com

A 10-year-old boy adjudicated as a delinquent for acts that would be considered Level 4 felony child molesting if committed by an adult will have his adjudication dropped after the Indiana Court of Appeals held Friday there was insufficient evidence to support a true finding of the conduct.

In August 2016, the Department of Child Services contacted the Wabash City Police Department after 4-year-old B.M. made child molesting allegations against 10-year-old D.P. B.M.’s father lived with D.P.’s mother, and the molestations allegedly occurred when B.M. would visit her father on the weekends.

B.M.’s allegations were made during a videotaped interview at the Child Advocacy Center in Marion, though the video was not admitted as evidence under the Protected Person Statute. But during a fact-finding hearing, B.M. testified D.P. touched her genitals with his hand, though she had her clothes on and did not feel the touching.

The state filed a petition alleging D.P. was a delinquent for committing acts that, if committed by an adult, would be Level 3 felony child molesting for sexual intercourse or other sexual conduct and Level 4 felony child molesting for fondling or touching with intent to arouse or satisfy sexual desires. The juvenile court found only the Level 4 felony child molesting allegation true and adjudicated D.P. a delinquent on that count. He was ordered to serve 10 days in a detention facility and was placed on probation for 12 months.

On appeal in D.P. v. State of Indiana, 85A04-1702-JV-383, D.P. argued the evidence was insufficient to support the true finding for Level 4 felony child molesting. The Indiana Court of Appeals agreed, with Chief Judge Nancy Vaidik writing Friday the state failed to prove beyond a reasonable doubt that D.P.’s touching was intended to arouse or satisfy sexual desires.

Specifically, Vaidik said there was no evidence of exactly where D.P. touched B.M., although she identified it as her genital area on an anatomical drawing of a little girl. Further, there was no evidence of how or how long he touched her, nor was there evidence of kissing or of D.P. asking B.M. to also touch him.

“While we acknowledge that B.M. was a young witness and there was great difficulty in procuring her testimony, we are restricted to the evidence presented at the fact-finding hearing,” the chief judge wrote. “And based on that evidence only, we do not believe that a reasonable factfinder could find beyond a reasonable doubt that D.P. touched or fondled B.M. with the intent to arouse or satisfy his sexual desires.”

Thus, the appellate court reversed the true finding against D.P. for Level 4 felony child molesting.