Timothy Reno v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 15 2016, 9:23 am 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 ATTORNEYS FOR APPELLEE Christopher J. Hammerle Gregory F. Zoeller Jacob, Hammerle & Johnson Attorney General of Indiana Zionsville, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timothy Reno, March 15, 2016 Appellant-Defendant, Court of Appeals Case No. 06A01-1507-CR-879 v. Appeal from the Boone Superior Court State of Indiana, The Honorable Matthew C. Appellee-Plaintiff. Kincaid, Judge Trial Court Cause No. 06D01-1308-FA-306

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 06A01-1507-CR-879 | March 15, 2016 Page 1 of 8

Statement of the Case [1] Timothy Reno (“Reno”) appeals his conviction for Class C felony child

molesting.1 He argues that there is insufficient evidence to support his

conviction because the State failed to prove: (1) that the conduct occurred

during the time period alleged in the charging information; (2) Reno’s identity

as the perpetrator of the crime; and (3) Reno’s intent to arouse or satisfy his

sexual desires or those of the victim. Finding sufficient evidence of time,

identity, and intent, we affirm Reno’s conviction.

Issue Whether there is sufficient evidence to support Reno’s conviction for Class C felony child molesting.

Facts [2] The facts most favorable to the conviction reveal that E.S. was born in May,

2001. In 2009 and 2010, E.S.’s grandparents lived in an apartment in

Zionsville, where E.S. frequently spent the night. During that same time period,

fifty-three-year-old Reno often worked with E.S.’s grandparents and spent the

night at their apartment as well. One night at this apartment during 2009 or

2010 when E.S. was eight or nine years old, Reno and E.S. slept in the same

bed. When they awoke the following morning, Reno touched E.S.’s penis both

1 IND. CODE § 35-42-4-3. We note that effective July 1, 2015, this statute was amended and Reno’s offense would now be considered a level 3 felony. However, we will apply the version of the statute in effect at the time of the offense.

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over and under E.S.’s clothing. At Reno’s request, E.S. also touched Reno’s

penis. The touching stopped when E.S.’s grandparents woke up. [3] E.S. did not tell anyone what had happened until 2012, when he told his

mother and a counselor. Zionsville Police Department Officer Brad Kiefer

interviewed Reno, who admitted that he had been in bed with E.S. at the

grandparents’ apartment. According to Reno, E.S. was sick, and Reno got in

bed with E.S. to rub his stomach. When the officer asked Reno if he had

touched E.S. inappropriately, Reno responded that he “didn’t know, he might

have. Big hands, small stomach.” (Tr. 206). [4] In an amended information filed in February 2015, the State charged Reno with

Class C felony child molesting. The information alleged that “[b]etween

October 1, 2009, and September 30, 2010, Timothy Reno did perform or submit

to fondling or touching with [E.S.], a child under the age of fourteen years, with

intent to arouse or satisfy the sexual desires of the child or defendant . . . .”

(App. 271). [5] At trial, the State presented evidence of the above facts. Also at trial, the parties

stipulated that E.S.’s grandparents lived in a specific Zionsville apartment from

October 9, 2009, through September 30, 2010. In addition, E.S.’s father

identified Reno in court as “Tim Reno,” (Tr. 152), a friend of E.S.’s

grandparents who often stayed at their Zionsville apartment. According to

E.S.’s father, he had known Reno for several years, and E.S. called Reno

“Uncle Timmy.” (Tr. 152). E.S.’s mother also identified Reno in court as

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“Tim Reno,” and testified that she had known him for nineteen years. (Tr.

188). Reno testified that he often stayed at E.S.’s grandparents’ apartment in

Zionsville and that E.S. called him “Uncle Timmy.” (Tr. 237). E.S. testified

that “Tim” touched his penis on top of and under his pants while they were

sharing the same bed at his grandparents’ apartment in Zionsville. (Tr. 161).

He further testified that he had never had a stomachache while staying at that

apartment. [6] The jury convicted Reno of Class C felony child molesting, and the trial court

sentenced him to four (4) years executed at the Department of Correction.

Reno appeals.

Decision [7] Reno contends that there is insufficient evidence to support his conviction.

Specifically, he argues that the State failed to prove he committed the act as

charged, “both as to the timing during which the act was alleged to have

occurred, and by failing to have the victim identify Reno during trial.” (Reno’s

Br. 4). Reno also argues that the “State failed to establish beyond a reasonable

doubt that any touching of E.S. by Reno was done with the intent to arouse.”

(Reno’s Br. 7). We address each of his contentions in turn. [8] Our standard of review for sufficiency of the evidence is well-settled. When

reviewing the sufficiency of the evidence needed to support a criminal

conviction, we neither reweigh the evidence nor judge witness credibility.

Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). We consider only the evidence

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supporting the judgment and any reasonable inferences that can be drawn from

such evidence. Id. We will affirm a conviction if there is substantial evidence

of probative value such that a reasonable trier of fact could have concluded the

defendant was guilty beyond a reasonable doubt. Id. [9] Reno first argues that the State failed to prove that the prohibited conduct

occurred between October 1, 2009, and September 30, 2010, as alleged in the

amended charging information. However, our review of the evidence reveals

that the parties stipulated that E.S.’s grandparents lived in an apartment in

Zionsville from October 9, 2009 until September 30, 2010. The testimony also

reveals that Reno touched E.S.’s penis while sleeping in the same bed with E.S.

in this particular apartment. Thus, the State proved that the prohibited conduct

occurred during the time period alleged in the amended charging information. [10] We further note that even if the State had not proved that the conduct occurred

during the time period alleged in the charging information, there would still be

sufficient evidence to support Reno’s conviction. The State need only allege the

time of the offense as definitely as can be done if time is of the essence of the

offense. See I.C. § 35–34–1–2(a)(6). It is well-established that where time is not

of the essence of the offense, the State is not confined to proving the

commission on the date alleged in the charging information but may prove the

commission at any time within the statutory period of limitations. Love v. State,

761 N.E.2d 806, 809 (Ind. 2002). Time is not of the essence in child molesting

cases. Id. In such cases, the exact date is only important in limited

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circumstances, such as where the victim’s age at the time of the offense falls at

or near the dividing line between classes of felonies. Id. [11] Here, E.S. was eight or nine years old at the time of the offense. Because E.S.’s

age did not fall at or near the fourteen-year-old dividing line for child molesting

offenses, time was not of the essence in this case. See I.C. § 35-42-4-3. Because

time is not of the essence, the State needed only to prove that the offense

occurred during the statutory period of limitations. See Love, 761 N.E.2d at 809.

The statutory period of limitations for a Class C felony is five years. See I.C. §

35-41-4-2. The State is correct that E.S.’s testimony was sufficient to establish

that the crime occurred during the statute of limitations and that this is

sufficient evidence to support his conviction. [12] Reno next argues that there is insufficient evidence to support his conviction

because the State failed “to connect the allegations made by E.S. to the actual

Defendant, Reno.” (Reno’s Br. 5). According to Reno, “[w]hen the victim is

not asked to identify the defendant at trial, or even linkup the identity during

the course of the victim’s testimony, such testimony cannot be sufficient to

support a conviction.” (Reno’s Br. 7). [13] However, it is well-established that circumstantial evidence alone may be

sufficient to sustain a conviction. Harbert v. State, No. 06A01-1507-CR-879,

2016 WL 430518, at *5 (Ind. Ct. App. Feb. 4, 2016). When evidence of

identity is not entirely conclusive, the weight to be given to the identification

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evidence is left to the determination of the jury, as determining identity is a

question of fact. Id. [14] Here, our review of the evidence reveals that E.S.’s father identified Reno in

court as “Tim Reno,” a friend of E.S.’s grandparents. (Tr. 152). According to

E.S.’s father, E.S. called Reno “Uncle Timmy.” (Tr. 152). E.S.’s mother also

identified Reno in court as “Tim Reno.” (Tr. 188). Reno testified that he often

stayed at E.S.’s grandparents’ apartment in Zionsville and that E.S. called him

“Uncle Timmy.” (Tr. 237). E.S. testified that “Tim” touched his penis on top

of and under his pants while they were sharing the same bed at his

grandparents’ apartment in Zionsville. (Tr. 161). This evidence is sufficient to

sustain Reno’s conviction. [15] Lastly, Reno argues that there is insufficient evidence to support his conviction

because the State failed to prove his intent to arouse his sexual desires or the

sexual desires of E.S. INDIANA CODE § 35-43-4-3(b) provides as follows:

A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony.

The intent element of child molesting may be established by circumstantial

evidence and inferred from the actor’s conduct and the natural and usual

sequence to which such conduct usually points. Wise v. State, 763 N.E.2d 472,

475 (Ind. Ct. App. 2002), trans. denied. The intent to arouse or satisfy sexual

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desires may be inferred from evidence that the accused intentionally touched a

child’s genitals. Id. [16] Here, Reno intentionally touched E.S.’s penis both over and under his pants

when E.S. was nine or ten years old. This evidence is sufficient to prove that

Reno intended to arouse or satisfy the sexual desires of either E.S. or Reno. [17] Affirmed.

Baker, J., and Bradford, J., concur.

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