Opinion
23A-CR-2483
09-20-2024
Gary D. Priest, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Shelby Superior Court The Honorable R. Kent Apsley, Judge Trial Court Cause No. 73D01-2208-F1-000002
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
FELIX, JUDGE
Statement of the Case
[¶1] Gary D. Priest engaged in inappropriate sexual conduct with two children, C.P. and B.P. Relevant to this appeal, as to C.P., Priest was convicted of child molesting as a Level 1 felony, and as to B.P., he was convicted of sexual misconduct with a minor as a Level 4 felony. The trial court sentenced Priest to a total of 45 years in the Indiana Department of Correction with 5 years suspended to probation. Priest now appeals, raising two issues:
Priest was charged with four counts of criminal conduct as to each victim. Because this appeal only asks us to review the sufficiency of the evidence as to the convictions named above, we limit our discussion accordingly.
1. Whether the evidence is sufficient to support his conviction for child molesting by sexual intercourse as a Level 1 felony; and
2. Whether the evidence is sufficient to support his conviction for sexual misconduct with a minor as a Level 4 felony.
[¶2] We affirm.
Facts and Procedural History
[¶3] Priest lived with his wife, Chrissy, on Morristown Road in Shelbyville, Indiana. Chrissy's niece, C.P., lived nearby with her parents and sister "on the outskirts of Rushville[, Indiana]." Tr. Vol. I at 63-64. When C.P. was "probably five or six," she started spending time at Priest's home while C.P.'s mother was working. Tr. Vol. I at 102. Priest engaged C.P. in sexual conduct while she was at his home. In one such encounter, while Priest and C.P. were in his bedroom, Priest removed C.P.'s pants and attempted to have intercourse with her. Priest "[t]ried to insert his penis into [C.P.'s] vagina." Tr. Vol. I at 83. They had skin-to-skin contact, and he was "trying to put himself in [C.P.]." Id. Priest used his hands to rub his penis against C.P.'s unclothed vagina. Id. At trial, C.P. testified regarding Priest's attempt to molest her. She said, "There was an attempt, but . . . it was painful, and I told him to stop." Id. Priest stopped.
[¶4] Priest told C.P. not to tell anyone about this and other incidents involving his sexual conduct with her or he would get in trouble. C.P. ultimately "told [Priest] to stop, or [she] was going to tell people." Tr. Vol. I at 84. According to C.P., Priest's sexual encounters with her stopped when she was approximately 11 years old. In other words, this type of conduct occurred for five to six years. C.P. eventually disclosed Priest's conduct to her boyfriend, who encouraged her to tell her parents. In January 2022, when C.P. was 15 years old, she told her parents about Priest's conduct.
[¶5] Priest's son B.P. also reported that Priest had engaged in sexual acts with him when he was less than 16 years old. In one instance, while B.P., Priest, and Chrissy were smoking methamphetamine, a lingerie-clad Chrissy joined Priest and B.P. in the living room. Priest "presented" Chrissy as if he were showing her off and then had her "get down . . . on all fours." Tr. Vol. II at 53. While Priest had Chrissy perform fellatio on him, he directed B.P. to have intercourse with her from behind. During this, Priest directed B.P. to high five him over Chrissy, at which point Priest told B.P. that this position was known as the "Eiffel Tower." Tr. Vol. II at 54-55.
B.P. lived with his biological mother but visited Priest's home on occasion.
[¶6] Regarding Priest's conduct with C.P., Priest was charged in relevant part with child molesting as a Level 1 felony (Count I). Regarding Priest's conduct with B.P., Priest was charged in relevant part with sexual misconduct with a minor as a Level 4 felony (Count XI). Two separate jury trials were held. In the first trial, which related to charges with C.P., Priest was found guilty of child molesting as a Level 1 felony (Count I). In the second trial, which related to charges with B.P., Priest was found guilty of sexual misconduct with a minor as a Level 4 felony (Count XI).
Discussion and Decision
Standard of Review
[¶7] Priest argues that the State presented insufficient evidence to support his convictions for child molesting in Count I and for sexual misconduct with a minor in Count XI. "Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we 'neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the [factfinder].'" Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). "In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it." Id. (quoting Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024)). We will reverse a guilty verdict only when no reasonable trier of fact "could find the elements of the crime proven beyond a reasonable doubt." Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).
1. The State Presented Sufficient Evidence to Support Priest's Conviction for Child Molesting (Count I)
[¶8] In order to convict Priest of child molesting as a Level 1 felony under Indiana Code section 35-42-4-3, the State had to prove beyond a reasonable doubt that Priest, while over age 21, "knowingly or intentionally performed and/or submitted to sexual intercourse" with C.P., who was under age 14. Appellant's App. Vol. II at 21. Priest argues only that the evidence is insufficient to show that he had sexual intercourse with C.P.
[¶9] Indiana Code section 35-31.5-2-302 defines "sexual intercourse" as "an act that includes any penetration of the female sex organ by the male sex organ." "Proof of the 'slightest penetration' of the female sex organ, including penetration of the external genitalia, is sufficient to sustain a conviction for child molestation based on sexual intercourse." Boggs v. State, 104 N.E.3d 1287, 1288 (Ind. 2018) (quoting Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), on reh'g (1997); Dinger v. State, 540 N.E.2d 39, 40 (Ind. 1989)). "A conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim." Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (citing Ferrell. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991)).
[¶10] Here, Priest alleges that the following testimony by C.P. is insufficient to show he engaged in sexual intercourse with her:
[State]: . . . And what happened after he took your pants off?
[C.P.]: He attempted to have intercourse with me.
[STATE]: Okay, when you say "Attempted", can you tell us exactly what it was that he did?
[C.P.]: Tried to insert his penis into my vagina.
[STATE]: Okay. Can you tell us where exactly his penis was and what he was doing with it? Was it on your body, touching your body somewhere or . . . ?
[C.P.]: It was touching my body.
[STATE]: Okay, what part of your body was it touching?
[C.P.]: My crotch area.
[STATE]: Okay, well your, and your pants were off?
[C.P.]: Yes.
[STATE]: So it was skin to skin. And was he moving? Was he staying still, or something else?
[C.P.]: He was moving.
[STATE]: And how was he moving?
[C.P.]: He was trying to put himself in me.
[STATE]: Was he doing, was he using his hands in any way or was he just rubbing his penis up against you or something else?
[C.P.]: He was using his hands to rub his penis up against me.
[STATE]: Okay, so he was using his hands to rub his penis against you?
[C.P.]: Yes.
[STATE]: Okay. Can you tell me, or can you tell us, was there any kind of actual insertion into your vagina?
[C.P.]: There was an attempt, but I...it was painful, and I told him to stop.
[STATE]: And he did?
[C.P.]: Yes.Tr. Vol. I at 82-84.
[¶11] Priest argues that his conviction for child molesting as a Level 1 felony should be reversed because there is no evidence to show actual penetration and C.P.'s testimony shows only an attempt to penetrate. The Indiana Supreme Court has reversed a conviction for child molesting requiring penetration where the 12-year-old victim testified that the defendant "tried" to "have sex" with her and tried to put his penis inside her. Spurlock, 675 N.E.2d at 315. There was no other evidence in the record to show the victim's external sex organs were penetrated, and the victim testified she did not know if the defendant's sex organ "penetrated or went inside" her sex organ. Id.
[¶12] In contrast, in Hale v. State, this court affirmed a conviction for child molesting based on penetration even though there was no direct evidence of penetration. 128 N.E.3d 456, 463 (Ind.Ct.App. 2019), trans. denied. In Hale, the 12-year-old victim testified that, on five separate occasions, Hale touched her vagina with his finger or hand using an "up and down" or "circular" motion that felt like he was "trying to find something," but the victim did not know whether the defendant's finger had penetrated her vagina. Id. On appeal, we concluded that "a reasonable fact-finder could have determined from the evidence that Hale penetrated [the victim's] external genitalia." Id.
[¶13] Here, the evidence regarding penetration is more similar to Hale than Spurlock. Although C.P. said that Priest attempted penetration, she also testified that he rubbed his sex organ against her "crotch area" to the extent that it caused her pain. Tr. Vol. I at 83. Such testimony is more detailed than the victim's vague testimony in Spurlock and includes facts from which a reasonable fact-finder, using everyday common sense and knowledge, could have determined that Priest's sex organ penetrated C.P.'s external genitalia. See Hale, 128 N.E.3d at 463. Again, "[p]roof of the 'slightest penetration' of the female sex organ, including penetration of the external genitalia, is sufficient to sustain a conviction for child molestation based on sexual intercourse." Boggs, 104 N.E.3d at 1288 (quoting Spurlock, 675 N.E.2d at 315; Dinger, 540 N.E.2d at 40). C.P.'s testimony that Priest's penis was in direct skin-to-skin contact with her "crotch area", he was using his hands to "rub his penis against" her, and that contact also caused pain to C.P. is sufficient to show sexual intercourse as defined by Indiana Code section 35-31.5-2-302. The evidence is sufficient to support Priest's conviction for child molesting under Indiana Code section 3542-4-3 as a Level 1 felony.
2. Priest Has Waived the Challenge to His Conviction for Sexual Misconduct with a Minor (Count XI)
[¶14] Priest next contends the evidence was insufficient to support his conviction for sexual misconduct with a minor as a Level 4 felony. However, we observe that Priest's entire argument on this issue is in only two paragraphs. The first paragraph (one sentence long) is only a recitation of the charge. In the second paragraph, other than assuming what testimony relates to the charge, and making a conclusory statement, Priest's argument is nothing more than this: "B.P. never testified that he engaged in sexual intercourse with Priest, and the State did not argue that Priest was guilty under the theory of accomplice liability for aiding, inducing, or causing Chrissy to engage in sexual intercourse with B.P." Appellant's Br. at 12.
[¶15] Indiana Appellate Rule 46 sets out the requirements for an appellate brief. The rule provides in relevant part: "The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citation to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on." Ind. Appellate Rule 46(A)(8)(a). "A litigant who fails to support his arguments with appropriate citations to legal authority and record evidence waives those arguments for our review." Davidson v. State, 211 N.E.3d 914, 926 (Ind. 2023) (citing Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)); see also App. R. 46(A)(8). Here, Priest's one-sentence argument challenging his conviction for sexual misconduct with a minor neither develops his argument nor cites relevant authorities or the appellate record. "We will not step in the shoes of the advocate and fashion arguments on his behalf, 'nor will we address arguments' that are 'too poorly developed or improperly expressed to be understood.'" Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind.Ct.App. 2021)). Because such is the case here, Priest's argument is waived.
Waiver notwithstanding, there is ample case law holding that a defendant does not need to be charged as an accomplice in order to be convicted as one. Wise v. State, 719 N.E.2d 1192, 1199 (Ind. 1999); Tynes v. State, 650 N.E.2d 685, 687 (Ind. 1995); Whittle v. State, 542 N.E.2d 981, 991 (Ind. 1989). It is clear from the evidence that Priest directed and induced the conduct between B.P. and Chrissy. As the State argued in its Opening Statement, "The Defendant encouraged it. Not only encouraged it, pretty much demanded it." Tr. Vol. II at 14.
Conclusion
[¶16] We conclude that the evidence is sufficient to support Priest's conviction on Count I for child molesting as a Level 1 felony and that Priest waived the challenge to his conviction for sexual misconduct with a minor under Count XI. Therefore, we affirm his convictions on Count I and Count XI.
[¶17] Affirmed.
Kenworthy, J., and Riley, Sr. J., concur.