Maman Bachir Dankassoua v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 04 2018, 10:40 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Curtis T. Hill, Jr., Indianapolis, Indiana Attorney General of Indiana

Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Maman Bachir Dankassoua, January 4, 2018 Appellant-Defendant, Court of Appeals Case No. 49A05-1706-CR-1370 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff. Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49G03-1606-F1-22200

Barnes, Judge. Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018 Page 1 of 9

Case Summary Maman Bachir Dankassoua appeals his conviction and sentence for Level 1

felony child molesting. We affirm.

Issues The issues before us are:

I. whether sufficient evidence exists to sustain Dankassoua’s conviction; and

II. whether Dankassoua’s twenty-five-year sentence is inappropriate.

Facts [1] Dankassoua married T.S. in 2010. Although they separated in 2013, at the time

of the relevant events, Dankassoua still visited T.S.’s household in Indianapolis

approximately once each month. T.S. has three children, Am.S. (age 21), A.P.

(age 11), and A.S. (age 1). On June 6, 2016, Dankassoua visited T.S.’s home.

He tried to persuade her to have sex with him, but she refused. T.S. left for

work, and Dankassoua remained at her home. A.P. was on the living room

sofa, and Am.S. and A.S. were in a bedroom. Dankassoua sat next to A.P. on

the sofa. Using his hand, he touched “inside” between A.P.’s legs. Tr. Vol. II

p. 71. He also forced A.P. to touch his penis with her hand. [2] Am.S emerged from the bedroom with A.S., then returned to retrieve an item.

A.S. went into the living room. As A.S. entered the living room, “A.P. made a

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loud thump to the floor like she was jumping or something.” Id. at 50. Am.S.

re-emerged from the bedroom, went into the living room, and told A.P. that she

was going to “tell[ ] on her” and “call . . . mom.” Id. at 50, 84. Am.S. later

testified that she intended to scare A.P. into being less noisy, when she

threatened to call their mother. Am.S. went back into the bedroom. A.P.

called to Am.S. and said that Dankassoua wanted to speak with her. When

Am.S. did not respond, A.P. and Danksassoua entered the bedroom.

Dankassoua asked, “[W]hy are you going to tell your mom? Why are you

going to tell your mom.” Id. at 51. “He looked worried and [said,] ‘[he] was

just telling [A.P.] about boys.’” Id. Dankassoua told Am.S. that “he was

explaining to [A.P.], like, how the body works and things like that.” Id. at 52.

Am.S. became concerned and tried telephoning T.S.; unable to reach her,

Am.S. sent T.S. a text message. Am.S. also called her grandmother. [3] T.S. returned Am.S.’s call and asked to speak to A.P, who spoke to her mother

privately. T.S. returned home soon thereafter and asked Dankassoua “what did

he do to my daughter.” Id. at 100. Dankassoua “was telling [T.S.] that he

didn’t do anything at first”; then, “he told [T.S.] he was sorry.” Id. The

children’s grandmother and aunts arrived, and T.S.’s sister called the police.

The police and the Department of Child services referred A.P. to the St.

Vincent Hospital emergency room. [4] On June 10, 2016, the State charged Dankassoua with one count of Level 1

felony child molesting and one count of Level 4 felony child molesting. He was

tried by a jury on May 4-5, 2017. At trial, A.P. was asked to circle on a

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diagram of the female body the part of her body that Dankassoua touched; she

circled the genital area. When asked, “A.P. did [Dankassoua]’s hand touch

you inside between your legs, or outside, or something else,” A.P. responded,

“Inside.” Id. at 71. She testified further that Dankassoua touched her genitalia

underneath her undergarments. A.P. also testified that she had touched

Dankassoua’s genitalia “under” his underwear with her hand “[b]ecause he

kept grabbing my hand and then he made me touch it.” Id. at 72, 73. [5] Nurse Ashli Smiley of St. Vincent Hospital testified that she was the responding

sexual assault nurse examiner for A.P. Nurse Smiley’s sexual assault

examination of A.P. revealed “isolated” evidence of what may have been

bodily fluid on A.P.’s right middle finger. Id. at 149. Nurse Smiley testified

that she also observed injuries to A.P.’s internal genitalia, including “redness,

abrasions, . . . and uptake,” which is the term for the effect of blue Toluidine

dye “stick[ing] to any skin that is not in tact [sic].” Id. at 154, 155. Nurse

Smiley testified that injuries in the genital area “heal fairly quickly”; that the

dye “generally will not stick to a healing injury”; and that the uptake effect she

observed indicated that A.P.’s injuries were “more open,” which tended to

suggest that the injury had likely occurred recently. Id. at 170. [6] Officer Justin Hickman of the Indianapolis Metropolitan Police Department’s

Child Abuse Unit testified that he interviewed Dankassoua after the alleged

molestation. He testified that Dankassoua “asked to use the restroom” before

the interview, and was notified that he would be observed “the entire time.” Id.

at 227. Hickman testified that “when [Dankassoua] approached the toilet, he

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immediately . . . grabbed a hand full [sic] of toilet paper . . . and began

vigorously cleaning, or wiping his genitals”; before Officer Hickman could

collect the toilet paper for testing, Dankassoua “dropped [it] into the . . . toilet

bowl.” Id. at 228. [7] The jury returned guilty verdicts on both counts. At Dankassoua’s sentencing

hearing on May 30, 2017, the trial court vacated the Level 4 felony conviction

due to double jeopardy concerns. Counsel for Dankassoua asserted, as

mitigating, that the instant conviction was Dankassoua’s only criminal

conviction and that he suffered from “life-threatening and life ending” cirrhosis

of the liver with an “extremely poor” prognosis. Tr. Vol. III p. 28. In his

statement to the trial court, Dankassoua stated that he “d[id] not feel guilty of

what [he was] accused of”; that the molestation allegations stemmed from

T.S.’s anger that Dankassoua had stopped helping her financially; and

maintained that “you have to be almost evil to touch a child and it’s not

something [he was] able to do.” Id. at 30-31. [8] In sentencing Dankassoua, the trial court found, as aggravating circumstances

that he had violated his position of trust as A.P.’s stepfather. The trial court

also noted that it had “considered the mitigators brought up by” defense

counsel. Id. at 31. The trial court sentenced him to serve twenty-five years

executed in the Department of Correction; ordered him to register as a lifetime

registrant on the sex offender registry; designated him a credit-restricted felon

pursuant to Indiana Code Section 35-31.5-2-72; imposed a $100 fine; and

deemed him a sexually violent predator. Dankassoua now appeals.

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Analysis I. Sufficiency of the Evidence

[9] Dankassoua first challenges the sufficiency of the evidence supporting his

conviction for Level 1 felony child molesting. When analyzing a claim of

insufficient evidence to support a conviction, we must consider only the

probative evidence and reasonable inferences supporting the verdict. Sallee v.

State, 51 N.E.3d 130, 133 (Ind. 2016). “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.” Id. The evidence

does not have to overcome every reasonable hypothesis of innocence, and it is

sufficient if an inference may reasonably be drawn to support the verdict. Id. [10] In order to convict him of Level 1 felony child molesting, the State was required

to prove that Dankassoua, a person of at least twenty-one years of age,

knowingly or intentionally performed sexual intercourse or other sexual

conduct with A.P., a child under fourteen years of age. Ind. Code § 35-42-4-3.

“Other sexual conduct” includes “the penetration of the sex organ . . . of a

person by an object.” I.C. § 35-31.5-2-221.5. The term “object” includes a

finger. See D’Paffo v. State, 778 N.E.2d 798, 802 (Ind. Ct. App. 2002). [11] On appeal, Dankassoua does not deny touching A.P.; rather, he challenges the

sufficiency of the State’s evidence to prove that he committed an act of

penetration. Proof of the slightest penetration is sufficient to sustain

convictions for child molesting. Dinger v. State, 540 N.E.2d 39, 40 (Ind. 1989).

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Further, we have held that penetration of external genitalia is sufficient to

sustain a conviction for child molesting. Short v. State, 564 N.E.2d 553, 558

(Ind. Ct. App. 1991) (holding that our statute defining sexual intercourse does

not require that the vagina be penetrated, only that the female sex organ,

including the external genitalia, be penetrated). [12] In Scott v. State, 771 N.E.2d 718 (Ind. Ct. App. 2002), disapproved on other

grounds by Louallen v. State, 778 N.E.2d 794, 798 n.3 (Ind. 2002), the defendant

allegedly penetrated a minor child’s sex organ with his finger. At trial, the child

testified that the defendant had put his finger in her “private.” Id. at 724. In

concluding that sufficient evidence existed to sustain the defendant’s

conviction, we reasoned, “Upon testifying that [the defendant] inserted his

finger into her ‘private,’ and that she used her ‘private’ to go to the restroom,

[the child] provided information upon which the jury could determine that [the

defendant] had inserted his finger into her external genitalia.” Id. at 725. Such

is the case here, where A.P. testified that Dankassoua touched “inside” between

her legs with his hand, and Nurse Smiley testified that the sexual assault

examination showed injuries to A.P.’s internal genitalia, including “redness,

abrasions, . . . and uptake. Id. at 67-71, 154, 155. The State presented sufficient

evidence of an act of penetration from which the jury could conclude beyond a

reasonable doubt that Dankassoua committed Level 1 felony child molesting.

II. Inappropriate Sentence

[13] The other issue before us is whether Dankassoua’s sentence is inappropriate

under Indiana Appellate Rule 7(B) in light of his character and the nature of the Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1370| January 4, 2018 Page 7 of 9

offenses. Although Rule 7(B) does not require us to be “extremely” deferential

to a trial court’s sentencing decision, we still must give due consideration to that

decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

also understand and recognize the unique perspective a trial court brings to its

sentencing decisions. Id. “Additionally, a defendant bears the burden of

persuading the appellate court that his or her sentence is inappropriate.” Id. [14] The principal role of Rule 7(B) review “should be to attempt to leaven the

outliers, and identify some guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). We “should focus on the forest—the aggregate sentence—rather than

the trees—consecutive or concurrent, number of counts, or length of the

sentence on any individual count.” Id. Whether a sentence is inappropriate

ultimately turns on the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other factors that come to light in a

given case. Id. at 1224. When reviewing the appropriateness of a sentence

under Rule 7(B), we may consider all aspects of the penal consequences

imposed by the trial court in sentencing the defendant, including whether a

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

1025 (Ind. 2010). [15] Regarding the nature of the offenses, when Dankassoua’s estranged wife

rebuffed his advances and left her children alone with him, he touched the

internal genitalia of eleven-year old A.P. and forced her to touch his penis.

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Dankassoua’s actions constituted a breach of trust given that A.P. was his

stepdaughter and T.S. had entrusted her children into his care. As for

Dankassoua’s character, he engaged a child—his stepdaughter—in sexual

activity and then, in an effort to conceal his actions, he lied to and manipulated

A.P.’s older sister, who had witnessed his suspicious behavior, and tried to

rationalize his actions. Before being questioned by police, Dankassoua—while

under police observation—destroyed forensic evidence before the police could

retrieve and examine it. The sentencing range for a Level 1 felony is from

twenty to fifty years. Based on the foregoing, we cannot say that the nature of

Dankassoua’s offense and his character necessarily dictate that his twenty-five-

year sentence is inappropriate.

Conclusion [16] There is sufficient evidence to sustain Dankassoua’s conviction for Level 1

felony child molesting. His twenty-five-year sentence is not inappropriate.

Affirmed.

Najam, J., and Mathias, J., concur.

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