Ja'Juan Hudson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 24 2020, 8:28 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kelly M. Starling Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Appellate Division Matthew B. MacKenzie Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ja’Juan Hudson, June 24, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2673 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara C. Crawford, Appellee-Plaintiff. Judge Trial Court Cause No. 49G01-1806-F3-18447

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 1 of 10

Case Summary [1] Ja’Juan Hudson (“Hudson”) appeals his conviction of Child Molesting, as a

Level 3 felony.1 We affirm.

Issues [2] Hudson presents two issues for review:

I. Whether the trial court abused its discretion by admitting into evidence Hudson’s statement to police; and

II. Whether the State failed to present evidence that Hudson was an adult when he committed the charged offense.

Facts and Procedural History [3] Hudson was born on July 31, 1998. On June 8, 2018, the State charged

Hudson with three counts of Child Molesting, alleging that he had fondled and

engaged in other sexual conduct with his younger half-sibling, N.C. A jury

acquitted Hudson of two counts but was unable to reach a verdict as to Count

1. The State decided to retry Hudson on Count 1, which alleged:

On or about or between August 8, 2016 and August 7, 2017, Ja’Juan Hudson did knowingly or intentionally perform or

1 Ind. Code § 35-42-4-3.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 2 of 10

submit to other sexual conduct as defined in [I.C.] 35-31.5-2- 221.5 with [N.C.], a child under the age of fourteen years.2

(App. Vol. II, pg. 23.) [4] In anticipation of a jury trial, the trial court held a hearing on April 5, 2019, to

consider the admissibility of Hudson’s police statement, wherein he admitted

that he had, at the age of fourteen, anally penetrated N.C. Hudson contended

that the statement concerned a prior bad act that was inadmissible under

Indiana Trial Rule 404(b). The State argued that the act to which Hudson had

admitted was not extrinsic to the charged offense, in that he had essentially

confessed but altered the date of occurrence. Persuaded that Hudson’s

statement was “more of an admission than a separate incident,” the trial court

ruled that the statement “should come in front of the jury” and was “not 404(b)

[evidence] at all.” (Tr. Vol. II, Pgs. 10-11.) [5] On August 8, 2019, Hudson appeared at a hearing and waived his right to a

jury trial. At the bench trial conducted on September 13, 2019, N.C. testified

that she, her younger sibling, and Hudson were alone at their father’s house;

N.C. awakened from sleep in pain; and she discovered Hudson engaging her in

anal intercourse. Hudson testified and repudiated his police statement as a

fabrication made to pacify the interviewing officer. Hudson was convicted as

2 Indiana Code Section 35-31.5-2-221.5 defines “other sexual conduct” as “an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.”

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 3 of 10

charged and, on October 18, 2019, was sentenced to six years imprisonment,

with three years suspended. He was ordered to serve one year of probation

with standard sex offender conditions. Hudson now appeals.

Discussion and Decision Trial Rule 404(b) Evidence [6] The admission or exclusion of evidence is entrusted to the sound discretion of

the trial court. Thayer v. State, 144 N.E.3d 843, 847 (Ind. Ct. App. 2020). We

will reverse a trial court’s decision only for an abuse of discretion. Id. [7] Hudson argues that his police statement was inadmissible under Indiana

Evidence Rule 404(b), which provides in relevant part:

Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

[8] Evidence Rule 404(b) is designed to prevent the jury from making the

“forbidden inference” that prior wrongful conduct suggests present guilt.

Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (citing Byers v. State, 709

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 4 of 10

N.E.2d 1024, 1026-27 (Ind. 1999)). See also Bassett v. State, 795 N.E.2d 1050,

1053 (Ind. 2003) (recognizing that the purpose behind Evidence Rule 404(b) is

to “prevent[ ] the State from punishing people for their character, and evidence

of extrinsic offenses poses the danger that the jury will convict the defendant

because ... he has a tendency to commit other crimes.”) (internal quotation

omitted). In assessing the admissibility of evidence under Evidence Rule

404(b), the trial court must first determine that the evidence of other crimes,

wrongs, or acts is relevant to a matter at issue other than the defendant’s

propensity to commit the charged act, and then balance the probative value of

the evidence against its prejudicial effect pursuant to Evidence Rule 403.

Halliburton, 1 N.E.3d at 681-82 (citing Wilson v. State, 765 N.E.2d 1265, 1270

(Ind. 2002)). The effect of Rule 404(b) is that evidence is excluded only when it

is introduced to prove the forbidden inference of demonstrating the defendant’s

propensity to commit the charged crime. Rogers v. State, 897 N.E.2d 955, 960

(Ind. Ct. App. 2008), trans. denied. [9] Here, the victim participated in a good touch/bad touch program at her

elementary school and disclosed that Hudson had anally penetrated her on a

single occasion. She did not provide a specific date. During the State’s

investigation, Hudson gave a police statement and admitted that he had anally

penetrated N.C. on one occasion. He added that he had been fourteen years of

age. Hudson’s admission did not confirm the investigative theory that Hudson

had been several years older, but this did not render the act under discussion

extrinsic to the charged offense. Moreover, the concern that a jury might draw

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 5 of 10

a forbidden inference as to Hudson’s character is not present here, because this

was a bench trial.3 Hudson has demonstrated no abuse of the trial court’s

discretion in the admission of evidence.

Hudson’s Age [10] Hudson contends that insufficient evidence supports his conviction. When

reviewing a claim that the evidence is insufficient to support a conviction, we

neither reweigh the evidence nor judge the credibility of the witnesses; instead,

we respect the exclusive province of the trier of fact to weigh any conflicting

evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Considering only

the probative evidence supporting the judgment and any reasonable inferences

which may be drawn from this evidence, we will affirm if the probative

evidence and reasonable inferences drawn from the evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a

reasonable doubt. Id. [11] Hudson was convicted pursuant to Indiana Code Section 35-42-4-3(a), which

provides in relevant part:

3 Hudson claims that the trial court, in deciding admissibility, relied upon a fact not in evidence. Specifically, Hudson had described the setting when he anally penetrated N.C. and stated that his youngest sibling was asleep in the same bed with N.C. At the pretrial hearing, the trial court stated that the youngest sibling had not been born when Hudson was fourteen, and she found this supportive of the State’s argument that Hudson had given false information about his age. However, when arguments as to admissibility were offered at trial, it was clarified that the youngest sibling had been born when Hudson was fourteen. The trial court acknowledged the clarification. Thus, the decision to admit the statement was not based upon a misapprehension of fact.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 6 of 10

A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2- 221.5) commits child molesting, a Level 3 felony.

Although he articulates an issue of insufficient evidence, Hudson does not

challenge the sufficiency of the evidence supporting any of the foregoing

elements. Rather, he contends that the State-having alleged that Hudson

committed sexual conduct against N.C. between August 8, 2016 and August 7,

2017, when Hudson was eighteen or nineteen-failed to prove the conduct

occurred within that timeframe. [12] Indiana Code Section 35-34-1-2 governs the specificity of an indictment or

information. Of relevance here is the following language:

The indictment or information shall be in writing and allege the commission of an offense by: . . .

(5) stating the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense;

(6) stating the time of the offense as definitely as can be done if time is of the essence of the offense[.]

[13] Hudson acknowledges that, generally, it is well settled that “time is not of the

essence in the crime of child molesting.” Barger v. State, 587 N.E.2d 1304, 1307

(Ind. 1992). As explained in Barger:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 7 of 10

It is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases. The exact date becomes important only in limited circumstances, including the case where the victim’s age at the time of the offense falls at or near the dividing line between classes of felonies.

Id. According to Hudson, time was “of the essence” here because he had

turned eighteen only eight days before the earliest date contained within the

Information. Appellant’s Brief at 17. He suggests that N.C.’s testimony could

have referred to an event at least nine days earlier, although he denied that any

such event took place. Hudson did not present an alibi defense; rather, his

defense was that he never at any time committed the charged act. [14] Hudson implies that the criminal court lacked jurisdiction over him.

Nonetheless, he has pursued no jurisdictional challenge and he did not move to

dismiss the Information. He simply argues that the State should have offered

definitive proof that sexual conduct took place when he was over the age of

eighteen. [15] The State responds that both N.C. and her mother testified that N.C. had been

seven, which, based upon the respective birth dates, would mean that Hudson

had turned eighteen. Our review of the record does not indicate that the

testimony of N.C. and her mother was so clear-cut. N.C. testified that she and

her younger sibling were visiting their father, but he and his girlfriend left,

leaving Hudson in the house. N.C., who had been in bed with her younger

sibling, awakened to find Hudson molesting her. N.C. stated that she

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 8 of 10

“believed” she was seven and she acknowledged that “more than a year after it

happened,” her school conducted the program that ultimately prompted the

April 2018 investigation. (Tr. Vol. II, pgs. 47, 51.) N.C.’s mother testified that

“her understanding” of N.C.’s age was that she had been “about seven.” Id. at

64. [16] That said, Hudson’s own testimony supports an inference that he was eighteen

at the time he gained unsupervised access to N.C. In his police statement,

Hudson described an incident of sexual conduct that took place at his father’s

house when N.C. and their youngest sibling were asleep in bed together. At

trial, Hudson testified that he and his father were estranged, and he seldom

visited his father. He stated that, “once in 2017,” he “spent the night” at his

father’s house. Id. at 104. Hudson was eighteen during all of 2017. Assuming

that “time was of the essence” in these circumstances, and the State was

required to allege a time with particularity, it did so. And, having made a

particular allegation, the State did not fail to satisfy its burden of proof to

establish the allegation.

Conclusion [17] Hudson has not demonstrated an abuse of the trial court’s discretion in the

admission of evidence. The State did not fail to present sufficient evidence to

support the conviction.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 9 of 10 [18] Affirmed.

Crone, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2673 | June 24, 2020 Page 10 of 10