Dean Penrod 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. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JUNE E. BULES Plymouth, Indiana STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA DEAN PENROD, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 50A03-0708-CR-378 APPEAL FROM THE MARSHALL SUPERIOR COURT The Honorable Robert O. Bowen, Judge Cause No. 50D01-0507-FA-4 December 12, 2007 MEMORANDUM DECISION NOT FOR PUBLICATION MATHIAS, Judge Dean A. Penrod ( Penrod ) was convicted in Marshall Superior Court of Class A felony child molesting and Class C felony child molesting and sentenced to a total of thirty-four years incarceration. Penrod appeals and claims that the evidence is insufficient to support his convictions. We affirm. Facts and Procedural History At the time relevant to this appeal, Penrod was living with his then girlfriend and her two children, one of whom was eleven-year-old R.P. On one day in July of 2005, after R.P. s mother had left for work, Penrod got in bed with R.P., pulled down her pants, and touched and licked R.P. between her legs in her private area. Tr. p. 13. When R.P. s mother returned home earlier than usual, Penrod jumped out of the bed and ran out of the house. R.P. s mother noticed that her daughter was pulling up her pants and asked her if Penrod had touched her. R.P. girl responded affirmatively. Also during the summer of 2005, R.P. s nine-year-old cousin S.P. spent the night at R.P. s house. When S.P. was asleep, Penrod touched S.P. over her clothes in her private part, which she described as between her legs, in the front. When S.P. told Penrod to stop, he continued to touch her. When interrogated by Sheriff Jon VanVactor, Penrod admitted that he was twentythree years old and that he had placed his tongue on R.P. s vagina. Tr. p. 58. With regard to S.P., Penrod admitted that he had rubbed her in the crotch area on top of her clothes. Ex. Vol., State s Ex. 3, p. 3. While in jail, Penrod made a telephone call to 2 S.P. s mother wherein he stated, I told them [i.e., the police] this morning that I did it. Tr. p. 38. On July 18, 2005, the State charged Penrod with Class A felony child molesting stemming from the incident with R.P., Class C felony child molesting stemming from the touching of S.P., and Class C felony escape stemming from an incident in which Penrod fled from the Sheriff while in jail. At the conclusion of a bench trial held on February 15, 2007, the trial court found Penrod guilty of both counts of child molesting, but not guilty of escape. At a hearing held on March 14, 2007, the trial court sentenced Penrod to consecutive terms of thirty years for Class A felony child molesting and four years for Class C felony child molesting. Penrod now appeals. Discussion and Decision When reviewing claims of insufficient evidence we neither reweigh the evidence nor assess the credibility of the witnesses; instead, considering only to the evidence most favorable to the judgment and reasonable inferences drawn therefrom, we will affirm the conviction if there is probative evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Kien v. State, 782 N.E.2d 398, 407 (Ind. Ct. App. 2003), trans. denied. To convict Penrod of Class A felony child molesting, the State had to prove that Penrod was at least twenty-one years of age and that he performed or submitted to deviate sexual conduct with a child under fourteen years of age. Ind. Code § 35-42-43(a)(1) (2004). Deviate sexual conduct is defined by statute as including an act involving . . . a sex organ of one person and the mouth or anus of another person. Ind. 3 Code § 35-41-1-9(1) (2004). Penrod claims that the evidence that he touched R.P. s private area with his mouth is not sufficient to establish that he touched R.P. s sex organ. We disagree. First, our supreme court has recognized that the term private part is generally understood as a commonplace designation of genital procreative organs. Stewart v. State, 768 N.E.2d 433, 437 (Ind. 2002) (quoting State v. Dennison, 435 P.2d 526, 529 (Wash. 1967)). More important, however, is that R.P. s testimony was not the only evidence regarding how Penrod touched R.P. Penrod admitted to Sheriff VanVactor that he touched R.P. s vagina with his tongue. Tr. p. 58. From this, the trial court could reasonably conclude that Penrod performed deviate sexual conduct on R.P. Penrod also claims that the State failed to prove that he touched S.P. with the intent to arouse or satisfy his sexual desires. Again, we disagree. The evidence established that Penrod touched the area between S.P. s legs in the crotch area on top of her clothes. Ex. Vol., State s Ex. 3, p.3. The intent to arouse or satisfy sexual desires may be inferred from evidence that the defendant intentionally touched a child s genital area. Lockhart v. State, 671 N.E.2d 893, 903 (Ind. Ct. App. 1996) (citing Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App. 1991)). Furthermore, during Sheriff VanVactor s interrogation, Penrod admitted that he touched the girls to satisfy his sexual need[s]. Ex. Vol., State s Ex. 3, p. 7. In short, the evidence is sufficient to support Penrod s convictions. Affirmed. NAJAM, J., and BRADFORD, J., concur. 4

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