Adrian Vergara v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 27 2017, 10:13 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Hilary Bowe Ricks Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Adrian Vergara, June 27, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1612-CR-2806 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila Carlisle, Appellee-Plaintiff. Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49G03-1602-F4-6348

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2806 | June 27, 2017 Page 1 of 10

Case Summary [1] On the morning February 13, 2016, Appellant-Defendant Adrian Vergara was

working as a maintenance man for a residential apartment building when he

entered one of the apartments to complete a requested repair. While in the

apartment, Vergara came into contact with then-thirteen-year-old T.W., who

lived in the apartment with her mother. T.W. was home alone at the time.

Vergara engaged in a conversation with T.W. while he completed the requested

repair. During this conversation, he told T.W. that she was very beautiful and

requested hugs from T.W. When T.W. complied with his request for a hug,

Vergara held on to her and kissed her with an open mouth and his tongue. [2] Vergara was subsequently charged with two counts of Level 4 felony child

molesting and Level 5 felony criminal confinement. He was found guilty as

charged after a bench trial. At sentencing, the trial court vacated one of the

Level 4 felony child molesting convictions and sentenced Vergara to an

aggregate six-year term with three years executed and three years suspended to

sex offender probation. [3] On appeal, Vergara challenges the sufficiency of the evidence to sustain his

conviction for Level 4 felony child molesting. We affirm.

Facts and Procedural History [4] In February of 2016, then-thirteen-year old T.W. lived with her mother in an

old Victorian home in Indianapolis that had been converted into apartments.

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Vergara, who was thirty-eight at the time, was employed as the “maintenance

man” for the apartment building. Tr. p. 11. T.W. was familiar with Vergara as

she had observed him completing maintenance in the building on prior

occasions. At some point prior to February 13, 2016, T.W.’s mother put in a

maintenance request after a shelf in T.W.’s closet broke. Upon receiving the

maintenance request, Vergara informed T.W.’s mother that he would contact

her before coming to make the repair. [5] On the morning of February 13, 2016, T.W.’s mother awoke before T.W. and

walked to a nearby Dollar General store to purchase some items for breakfast.

When T.W.’s mother left the apartment, she locked the deadbolt on the front

door. [6] T.W. noticed that her mother was gone when she woke up and went to use the

restroom. At the time, T.W. was wearing a “sports bra and green baggie sweat

pants.” Tr. p. 10. While T.W. was in the restroom, she heard a knock on the

front door. T.W. yelled for the person at the door to “hold on” before realizing

that the person had “let himself in.” Tr. p. 11. When T.W. came out of the

restroom, she saw Vergara “standing there.” Tr. p. 11. Vergara indicated that

he “was [there] to fix [the] closet.” Tr. p. 11. T.W. believed that although she

did not know that Vergara was scheduled to do maintenance work within the

apartment on that morning, she “thought that [her mother] knew” so she “just

went to [her] bedroom and sat on [her] bed while he was fixing the closet.” Tr.

p. 13. T.W. “was playing around on [her] phone” while making small talk with

Vergara as he worked in the closet. Tr. p. 13.

Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2806 | June 27, 2017 Page 3 of 10 [7] During her conversation with Vergara, T.W. indicated that people were

bullying her. Vergara responded by repeatedly telling T.W. that she “was very

beautiful.” Tr. p. 14. Vergara asked T.W. how old she was and T.W.

responded that she was thirteen. [8] Vergara did not leave immediately after fixing the shelf in T.W.’s closet.

Instead, he “stayed a couple minutes after” and “kept asking for hugs.” Tr. p.

14. Vergara asked for hugs “more than once.” Tr. p. 14. T.W. “really didn’t

know how to respond” to Vergara’s requests. Tr. p. 14. Even though she did

not want to hug Vergara, eventually T.W. gave Vergara “hugs because [she]

didn’t know how to respond and [she] felt awkward in the situation.” Tr. p. 15.

T.W. felt “awkward” hugging Vergara. T.W. was standing on her bed when

she hugged Vergara, with her face “on his shoulder” and his arms “[a]round

[her] waist.” Tr. p. 15. [9] The hug “ended normally,” but Vergara “kept asking for hugs” and eventually

began asking “for kisses.” Tr. p. 16. Vergara asked for kisses “more than

once.” Tr. p. 16. T.W. felt that Vergara “shouldn’t be asking me for kisses,

because he knows how old I am.” Tr. p. 16. T.W., who did not want to kiss

Vergara or for him to kiss her, indicated that she “felt really uncomfortable and

not safe.” Tr. p. 16. [10] “Still feeling uncomfortable,” T.W. gave Vergara another hug. Tr. p. 17.

When she tried to pull away, Vergara “continued to hold” T.W. and his “lips

caught [her] lips.” Tr. p. 17. T.W. later explained that “[w]hen I pulled away,

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his lips caught my lips and he ended up kissing me and I tried to pull him away

again, his arms were still wrapped around me so I really couldn’t -- I, uh,

panicked.” Tr. p. 17. T.W. further explained that Vergara kissed her with an

open mouth and that “it “felt like he was trying to shove his tongue down my

throat.” Tr. p. 18. Afterward, T.W. felt “[r]eally, really, uncomfortable and

scared.” Tr. p. 18. After kissing T.W., Vergara indicated that he should go and

said that T.W.’s mother “would probably be mad.” Tr. p. 19. He then left the

apartment. [11] After Vergara left the apartment, T.W. locked the deadbolt on the front door

and “put a chair under the doorknob.” Tr. p. 19. She then “panicked and ran

into” the restroom and called her grandmother and a friend. Tr. p. 19. T.W.

later recounted that while she was locked in the restroom,

I heard a knock on the door and I didn’t respond because I was still on the phone with my grandma, and I heard the door being unlocked and the chair moving and he was banging on the bathroom door, I was on the phone with my grandma and I was trying to tell her to be quiet because she was yelling into the phone, and I didn't want him to know I was there.

Tr. p. 20. [12] At some point, T.W.’s mother returned home. T.W. listened as her mother

entered the apartment and “made small talk” with Vergara. Tr. p. 21. T.W.

“peeked [her] head out of the bathroom door.” Tr. p. 21. T.W. was shaking

and crying while she hysterically mouthed to her mother “to get [Vergara] out

of the house.” Tr. p. 21. When Vergara “peeked over and saw” T.W., she Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2806 | June 27, 2017 Page 5 of 10

“hurried and closed the bathroom door and locked it again and waited until he

left.” Tr. p. 21. [13] T.W. exited the restroom after Vergara left the apartment and started to report

Vergara’s actions to her mother. Vergara re-entered the apartment while T.W.

was talking to her mother. Vergara did not knock and had not been invited

back in. When Vergara re-entered, T.W. “got very nervous, extremely

nervous.” Tr. p. 33. T.W.’s mother asked Vergara “what are you doing? I --

Sorry, but I have to get ready for work, you’re going to have to leave.” Tr. p.

33. After Vergara exited the apartment, T.W. told her mother what Vergara

had done. T.W.’s mother became “extremely irate.” Tr. p. 33. She ran out of

the apartment “looking for” Vergara and found him standing in the back

parking lot. T.W.’s mother then “ran straight upstairs and called the police.”

Tr. p. 34. Officers responded to the apartment and spoke to both T.W. and her

mother. Vergara was arrested later that morning. [14] On February 18, 2016, Appellee-Plaintiff the State of Indiana (“the State”)

charged Vergara with two counts of Level 4 felony child molesting and one

count of Level 5 felony criminal confinement. The trial court conducted a

bench trial on October 14, 2016, after which it found Vergara guilty as charged.

The trial court subsequently vacated one of Vergara’s convictions for Level 4

felony child molesting due to double jeopardy concerns. The trial court then

sentenced Vergara to an aggregate term of six years for the remaining Level 4

felony child molesting and Level 5 felony criminal confinement convictions. In

imposing this sentence, the trial court ordered that three years were to be

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executed and three years suspended to sex offender probation. This belated

appeal follows.

Discussion and Decision [15] Vergara contends that the evidence is insufficient to sustain his conviction for

Level 4 felony child molesting.1 Specifically, Vergara argues that the evidence

is insufficient to prove that he acted with the intent to arouse or sexually satisfy

either himself or T.W.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

quotations omitted). “In essence, we assess only whether the verdict could be

1 Vergara does not challenge the sufficiency of the evidence to sustain his conviction for Level 5 felony criminal confinement on appeal.

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reached based on reasonable inferences that may be drawn from the evidence

presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

original). Upon review, appellate courts do not reweigh the evidence or assess

the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

2002). [16] Indiana Code section 35-42-4-3(b) provides that

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 Level 4 felony.

“Mere touching alone is insufficient to constitute the crime of child molesting.”

Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011) (citing Nuerge v. State,

677 N.E.2d 1043, 1048 (Ind. Ct. App. 1997), trans. denied).

The State must also prove beyond a reasonable doubt that the act of touching was accompanied by the specific intent to arouse or satisfy sexual desires. [Nuerge, 677 N.E.2d at 1048]. The intent element of child molesting may be established by circumstantial evidence and may be inferred from the actor’s conduct and the natural and usual sequence to which such conduct usually points. Id.

Bass, 947 N.E.2d at 460. Thus, in order to convict Vergara of Level 4 felony

child molesting, the State was required to prove not only that Vergara

performed or submitted to fondling or touching with T.W., a child under the

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age of fourteen, but also that he did so with the intent to arouse or satisfy the

sexual desires of either himself or T.W. [17] In challenging the sufficiency of the evidence to sustain his conviction for Level

4 felony child molesting, Vergara does not dispute that on the date in question,

he performed or submitted to fondling or touching with T.W., a child under the

age of fourteen. Vergara argues only that the evidence is insufficient to prove

that he did so with the intent to arouse or to satisfy the sexual desires of either

himself or T.W. [18] One may reasonably infer from the record that Vergara acted with the intent to

arouse or satisfy the sexual desires of either himself or T.W. During trial, T.W.

testified that Vergara told her that she was beautiful and repeatedly asked her

for hugs and kisses before kissing her with an open mouth as she tried to pull

away. T.W. further testified that Vergara attempted to use his tongue when

kissing her and that it “felt like he was trying to shove his tongue down [her]

throat.” Tr. Vol. II, p. 18. We have previously concluded that the “natural and

usual sequence associated with ‘tongue kissing’” is sexual arousal. See Davis v.

State, 956 N.E.2d 726, 730 n.3 (Ind. Ct. App. 2011) (citing People v. Calusinski,

733 N.E.2d 420, 426 (Ill. Ct. App. 2000) (providing that an open mouth tongue

or “French” kiss is an inherently sexual act which generally results in sexual

excitement and arousal, and, as such, one could reasonably infer that the

defendant intentionally placed his tongue in the victim’s mouth for purposes of

his own sexual arousal); Cornelius v. State, 445 S.E.2d 800, 804 (Ga. Ct. App.

1994) (providing that the evidence that defendant “French” kissed the eleven-

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year-old victim was sufficient to authorize the jury’s finding that the defendant

was guilty of child molestation with the intent to arouse his sexual desires)). [19] The trial court found T.W.’s testimony regarding Vergara’s actions to be

credible. We will not second-guess this credibility determination on appeal. See

Stewart, 768 N.E.2d at 435. As such, in light of T.W.’s testimony coupled with

our previous decision in Davis, we conclude that the evidence is sufficient to

prove that Vergara acted with the requisite intent, i.e., the intent to arouse or

satisfy the sexual desires of either himself or T.W. Vergara’s claim to the

contrary amounts to an invitation to reweigh the evidence, which we will not

do. Id. [20] The judgment of the trial court is affirmed.

Mathias, J., and Altice, J., concur.

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