Henry Ward Brown v. State of Indiana

FILED Jul 02 2020, 8:46 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Office of the Public Defender Attorney General Appellate Division Sierra A. Murray Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Henry Ward Brown, July 2, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-171 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Appellee-Plaintiff Samuel L. Cappas, Judge Trial Court Cause No. 45G04-1702-FA-2

Vaidik, Judge. [1] In February 2017, the State charged Henry Ward Brown with child molesting

as a Class A felony—which was elevated from a Class B felony based on Brown

being at least twenty-one years old at the time of the offense—for molesting

C.B. between January 1, 2011, and December 31, 2012. Appellant’s App. Vol.

II p. 17. A jury trial was held in November 2019. According to the probable- Court of Appeals of Indiana | Opinion 20A-CR-171 | July 2, 2020 Page 1 of 3

cause affidavit and PSI, Brown was born on February 14, 1958, and thus was

sixty-one years old at the time of trial. However, the State forgot to present

evidence of Brown’s age.1 C.B. testified and described Brown’s appearance at

trial as being “bald in the middle at the top and hair in the back with a white

beard.” Tr. Vol. III p. 2. In addition, evidence was presented that at the time of

the offense in 2011-12, Brown had three cars—“a white Pontiac,” “a white

Cadillac,” and a white Ford Expedition—worked as a handyman at the

apartment complex where C.B. lived, had a house, and cared for six to ten

children at a time. Id. at 93. The trial court instructed the jury that to find

Brown guilty of child molesting as a Class A felony, the State had to prove that

he was at least twenty-one years old at the time of the offense. Appellant’s App.

Vol. II p. 80. The jury found Brown guilty as charged, and the trial court

sentenced him to thirty years. [2] Brown now appeals. His sole argument is that the State failed to prove beyond a

reasonable doubt he was at least twenty-one years old when he committed the

offense. Although the State failed to present direct evidence of Brown’s age,

“circumstantial testimonial evidence can be sufficient to prove age.” Staton v.

State, 853 N.E.2d 470, 474 (Ind. 2006). In addition, a jury may use its common

sense. Id. at 475. C.B. described Brown’s appearance at trial as being bald on

top with a white beard. In addition, evidence was presented that at the time of

1 During closing, the prosecutor told the jury to remember that a detective testified about Brown’s date of birth; however, it is undisputed that no such evidence was presented. See Tr. Vol. III p. 126. Notably, Brown did not object when the prosecutor said this.

Court of Appeals of Indiana | Opinion 20A-CR-171 | July 2, 2020 Page 2 of 3

the offense in 2011-12, Brown was employed, had multiple cars and a house,

and would watch numerous children at a time. The jury could use its common

sense to determine from this evidence that Brown was at least twenty-one years

old when he committed the offense. We therefore affirm the trial court. [3] Affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Opinion 20A-CR-171 | July 2, 2020 Page 3 of 3