Kevin Hadley v. State of Indiana (NFP)

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Pursuant to Ind. Appellate Rule 65(D), 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. FILED May 05 2010, 9:28 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DANIEL B. SCHUETZ Franklin, Indiana GREGORY F. ZOELLER Attorney General of Indiana HENRY A. FLORES, JR. Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA KEVIN HADLEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 41A04-0903-CR-132 APPEAL FROM THE JOHNSON CIRCUIT COURT The Honorable K. Mark Loyd, Judge Cause No. 41C01-0804-FB-10 May 5, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge STATEMENT OF THE CASE Kevin Hadley appeals his convictions for two counts of class A felony child molesting.1 We affirm. ISSUE Whether there is sufficient evidence to support the convictions. FACTS A.B. met Hadley, a friend of A.B. s father, in the summer of 2007. A.B. was eleven years old, and Hadley was forty-six years old. Hadley and A.B. started spending time together that summer; they went fishing several times, and Hadley would visit A.B. at home most of the time every day. (Tr. 92). Hadley also gave A.B. several presents, including a video-gaming system, a football, a basketball, and a knife. On September 8, 2007, Hadley took A.B. to the Johnson County Heartnut Festival, located in the Atterbury Fish and Wildlife Area (the Wildlife Area ). After arriving at the festival on Hadley s moped, they rode some rides, and Hadley bought A.B. a cheeseburger. (Tr. 99). They left the festival [s]ometime in the evening time, when it started to rain. (Tr. 100). Hadley and A.B. rode to a bridge within the Wildlife Area. After stopping, they walked under the bridge. As they stood under the bridge, Hadley pulled [A.B. s] pants down, (Tr. 102), and put his mouth on [A.B. s] penis. (Tr. 103). Hadley stopped after 1 Ind. Code § 35-42-4-3. 2 [a] few minutes. (Tr. 103). A.B. then pulled up his pants and walked back to the moped. Once it stopped raining, Hadley took A.B. home. Hadley threatened to run over A.B. if A.B. told anyone about what had transpired under the bridge. (Tr. 106). Hadley and A.B. returned to the Wildlife Area the next day. They rode around on Hadley s moped but eventually pulled off the road and walked into the woods. Hadley then pulled [A.B. s] pants down and sucked on [A.B. s] penis for [a] few minutes. (Tr. 109, 110). After A.B. pulled his pants back up, Hadley took his penis out of his pants and began to mess[] with [it], by mov[ing] his hand back and forth on it until [s]tuff cam[e] out. (Tr. 110). Hadley asked A.B. to touch his penis. A.B. refused, after which Hadley grabbed [A.B. ] hand and made [him] touch it. (Tr. 111). Hadley again threatened to run over A.B. if he told anyone what had occurred. They then returned to the festival, where they stayed until it got dark. As Hadley and A.B. left the festival, they encountered A.B. s mother; she was upset because A.B. was out late. Subsequently, A.B. s mother began asking A.B. about his relationship with Hadley; initially, A.B. did not divulge what had happened the weekend of the festival because he was afraid to. (Tr. 117). Several weeks later, however, A.B. told his mother that Hadley had molested him. A.B. s mother subsequently reported the incidences to law enforcement. On April 16, 2008, the State charged Hadley with four counts of class B felony child molesting. On May 12, 2008, the State filed an amended information, changing all 3 four counts to class A felony child molesting. On October 2, 2008, the State filed a motion to dismiss Counts III and IV, which the trial court granted on October 6, 2008. The trial court commenced a two-day jury trial on October 7, 2008. The jury found Hadley guilty of the remaining two counts of class A felony child molesting. Following a sentencing hearing on November 6, 2008, the trial court sentenced Hadley to consecutive sentences of forty years on each count, for a total sentence of eighty years. DECISION Hadley asserts that there is insufficient evidence to support his convictions. Specifically, he maintains that his convictions must be set aside because no scientific evidence was presented, there were no eye-witnesses, and all of the evidence presented was given by or derived directly from a child witness, A.B. Hadley s Br. at 3. 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) (quotations and citations omitted). A conviction of child molesting may rest solely upon the uncorroborated testimony of the alleged victim. Baber v. State, 870 N.E.2d 486, 490 (Ind. Ct. App. 2007), trans. denied. 4 Indiana Code section 35-42-4-3(a) provides, in relevant part, that a person at least twenty-one (21) years of age who, with a child under fourteen (14) years of age, performs or submits to . . . deviate sexual conduct commits child molesting as a class A felony. Under the facts of this case, deviate sexual conduct is an act involving a sex organ of one person and the mouth or anus of another person[.] I.C. § 35-41-1-9. A.B. testified that on two separate occasions, Hadley pulled down A.B. s pants and placed his mouth on A.B. s penis. We find that the State presented sufficient evidence for the jury to find Hadley guilty of two counts of child molesting for having committed deviate sexual conduct. Hadley s claim to the contrary is merely an invitation to judge the credibility of the witness and to reweigh the evidence, which we will not do. Affirmed. BAKER, C.J., and CRONE, J., concur. 5

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