Christopher L. Kimble v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 26 2017, 6:25 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool Curtis T. Hill, Jr.
Vanderpool Law Firm Attorney General of Indiana
Warsaw, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher L. Kimble, September 26, 2017
Appellant-Defendant, Court of Appeals Case No.
No. 85A02-1702-CR-417
v. Appeal from the Wabash Circuit
Court
State of Indiana, The Honorable Robert R.
Appellee-Plaintiff. McCallen, III, Judge
Trial Court Cause No.
85C01-9706-CF-29
Brown, Judge.
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[1] Christopher L. Kimble appeals his conviction for attempted child molesting as a
class B felony. Kimble raises three issues which we revise and restate as:
I. Whether the trial court abused its discretion in admitting
the results of a polygraph examination administered to
Kimble;
II. Whether the court abused its discretion in granting the
State’s motion to amend the charging information; and
III. Whether the evidence is sufficient to sustain his
conviction.
We affirm.
Facts and Procedural History
[2] In the summer of 1994, D.C., who was born in October of 1989, lived in
Wabash, Indiana, with her mother, her brother, and Kimble, who was her older
sister’s boyfriend. D.C.’s mother would leave home for four of five hours to
deliver a paper route four or five days per week. D.C. was “half asleep in [her]
room” when Kimble entered her room after her mother had left, pulled down
his pants, and took off D.C.’s underwear. Transcript at 33. Kimble touched
D.C. with his hands and his penis, touched her “around [her] vagina area,” and
“went around it, and then tried to go inside.” Id. at 33-34. D.C. did not tell
anyone what had happened at the time. She later told her father’s wife about
the incident, D.C.’s father and his wife took D.C. to the hospital, and law
enforcement later interviewed D.C.
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[3] On May 29, 1997, Kimble signed an advice of rights and was interviewed by
police. He also signed an Agreement of Stipulation of Polygraph Examination
providing that the results of the examination may be used in any cause of action
which should arise against him and that the written examination report would
be introduced into evidence at any trial or hearing.
[4] On May 30, 1997, Kimble signed a Consent to Submit to Polygraph
Examination, and Joseph Clingenpeel, II, administered examination.
Clingenpeel prepared a polygraph examination report dated May 30, 1997,
setting forth the procedures used and his conclusions. The report indicated that
Kimble was asked “Did your penis touch [D.C.’s] vagina?”; “Did your penis
touch [D.C.’s] vagina while living in Wabash?”; and “Did your finger touch
[D.C.’s] vagina?”; and Kimble answered “No” to each of these questions.
State’s Exhibit 5. The report stated “the results were found to be: Deception
indicated,” and “[i]t is the opinion of this examiner that the subject was not
totally truthful in his responses to the questions asked.” Id.
[5] In June 1997, the State charged Kimble with child molesting and attempted
child molesting as class A felonies. On December 19, 1997, the State filed an
amended charging information alleging: Count I, child molesting as a class C
felony; and Count II, attempted child molesting as a class B felony. 1 According
1
Specifically, Count II of the information filed on December 19, 1997, alleged:
[I]n May or June of 1996, at the County of Wabash, and State of Indiana, one
CHRISTOPHER LEE KIMBLE did attempt to commit the crime of child molesting by
knowingly or intentionally pulling [D.C.’s] pants down, a child under 14 years of age,
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to the chronological case summary (“CCS”), at some point in 2016 Kimble was
moved from South Carolina where he had been incarcerated to Wabash
County, Indiana.2 In December 2016, a jury trial was held at which D.C. and
Clingenpeel testified and the trial court admitted the May 30, 1997 polygraph
examination report. After it rested its case-in-chief, the State moved to amend
Count II of the information to replace the word “pants” with the word
“underwear,” to delete the language “and moving it . . . in an up and down
movement,” and to insert language that Kimble placed his penis near her
vagina, and the court granted the motion and stated that the amended language
would include the phrase “[a]nd touched his penis around her vaginal area.”
Transcript at 79, 84, 86. The jury found Kimble guilty on Counts I and II, the
trial court entered judgment on both counts, and the court later vacated the
conviction on Count I.
and placing his penis between her legs and moving it in an up and down movement,
which conduct constituted a substantial step toward the commission of the crime of child
molesting, a Class “B” Felony, which is performing sexual intercourse with a child under
14 years of age . . . .
Appellant’s Appendix Volume II at 22.
2
A June 2016 entry in the CCS indicates that Kimble “is presently incarcerated in South Carolina,” and an
October 2016 entry indicates the court was advised Kimble “is now being held in Wabash County.”
Appellant’s Appendix Volume II at 4-5. The record also contains a Notice to Court filed with the trial court
in March 2016 by the prosecutor stating that in January 1998 the prosecuting attorney filed a fugitive warrant
with the Attorney General of Indiana, that the Attorney General filed a notice to the Governor of South
Carolina stating Kimble was in custody in South Carolina, that there was a warrant for him, notifying the
South Carolina that after all the proceedings there had concluded they should forward the papers and
information to the Extradition Office, Office of the Indiana Secretary of State, and that the received
information that Kimble was serving a lengthy jail term and was believed to be sentenced to fifty years at the
South Carolina Department of Corrections.
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Discussion
I.
[6] The first issue is whether the trial court abused its discretion in admitting the
results of Kimble’s polygraph examination. We generally review the trial
court’s ruling on the admission or exclusion of evidence for an abuse of
discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We
will not reverse an error in the admission of evidence if the error was harmless.
Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). Errors in the admission of
evidence are to be disregarded unless they affect the defendant’s substantial
rights. Id. at 1059. In viewing the effect of the evidentiary ruling on a
defendant’s substantial rights, we look to the probable effect on the fact finder.
Id. The improper admission is harmless error if the conviction is supported by
substantial independent evidence of guilt satisfying the reviewing court that
there is no substantial likelihood the challenged evidence contributed to the
conviction. Id.
[7] As a general matter, Indiana courts look with disfavor on the admission of
polygraph examinations in criminal proceedings. State v. Wroe, 16 N.E.3d 462,
466 (Ind. Ct. App. 2014), trans. denied. Nevertheless, the Indiana Supreme
Court has held that polygraphs are admissible when four prerequisites are
satisfied:
(1) the prosecutor, defendant, and defense counsel must all sign a
written stipulation providing for the defendant’s submission to
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the examination and for the subsequent admission at trial of the
results;
(2) the admissibility of the test results must be within the trial
court’s discretion as it relates to the examiner’s qualifications and
the test conditions;
(3) the opposing party must have the right to cross-examine the
polygraph examiner if his graphs and opinion are offered in
evidence; and
(4) the jury must be instructed that, at most, the examiner’s
testimony tends only to show whether the defendant was being
truthful at the time of the examination, and that it is for the jury
to determine the weight and effect to be given such testimony.
Id. (citing Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996)). In addition, the
admission of polygraph evidence is subject to harmless error analysis. Majors v.
State, 773 N.E.2d 231, 239 (Ind. 2002). “The probable impact of the polygraph
reference upon the verdict is of prime importance.” Id.[8] Kimble asserts that the trial court abused its discretion in allowing the
polygraph results to be admitted at trial under prerequisite (2) above. He argues
the polygraph examiner had no specific recollection of the exam and did not
have the underlying charts from the polygraph machine or his notes of Kimble’s
conduct or demeanor and that there was no way the trial court could have
considered the test conditions. He states the test was twenty years old and the
passage of time would certainly have made the testimony about the test stale,
and that the absence of the underlying data and charts prevented him from
making comparisons and showing whether the “lie” determination was a close
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one using the data graphs and other details that the defense could have used in
cross-examination.
[9] The State maintains that the court did not abuse its discretion in admitting
Kimble’s stipulated polygraph results, and that sufficient evidence was
presented concerning Clingenpeel’s qualifications and the test results through
his testimony and the report itself to satisfy the second prerequisite for
admission. It also argues that any error in admitting the test results was
harmless because the probable impact of the polygraph results was minimal and
D.C. consistently testified that Kimble touched her vagina with his hands and
penis when she was four or five years old.
[10] The record reveals that Kimble signed the Agreement of Stipulation of
Polygraph Examination on May 29, 1997, which provided that he voluntarily
agreed to take a polygraph examination, that he was advised that the agreement
constituted a waiver of his right to preclude the introduction of the test results
into evidence, and that he agreed the results of the examination may be used in
any cause of action which should arise against him. The agreement further
provided that “[t]he results and/or opinions” of the examination would be
released in writing by the examiner, that “[t]his written report will be
introduced into evidence, without objection by either side, at the time of the
examiner’s testimony at any trial or hearing,” and that the examiner is
acknowledged “to be an expert in all phases of both administering polygraph
examinations and in the analysis of polygraph chart recordings.” State’s
Exhibit 2 at 2-3.
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[11] The record further reveals that the May 30, 1997 polygraph examination report
prepared by Clingenpeel set forth the procedure used to administer the
examination to Kimble and the conditions under which the examination was
administered. In discussing the examination procedure, the report stated that
the subject was examined in a private polygraph suite with only the examiner
and the subject present, that “[a]fter an initial pre-test with the subject, a blood
pressure bladder and cuff was wrapped around the upper part of the subject’s
right arm, with the bladder centered over the subject’s brachial artery,” and that
“[t]he bladder was inflated to a point approximating the subject’s arithmetic
mean blood pressure, or midway between the subject’s systolic and diastolic
blood pressures, for the purpose of recording a continuous indication of the
subject’s pulse rate, blood volume, and variations therein.” State’s Exhibit 5.
The report provided that “[t]wo protruding electrodes were fitted on the
subject’s index and third fingers on the left hand for the purpose of recording a
continuous indication of the subject’s sweat gland activity (galvanic skin
response) and variations therein,” that “[t]wo corrugated rubber tubes were
fastened around the subject’s upper body, one around the chest area and one
around the stomach area, for the purpose of recording a continuous indication
of the subject’s respiratory pattern and variations therein,” that “[t]he seated
subject was instructed to sit still, keep both feet flat on the floor, avoid
unnecessary movement during the running of the test, and to answer only with
a single word – ‘Yes’ or ‘No,’” and that “[a] Lafayette Ambassador Polygraph,
serial number 209743, to which the above accessories were attached, was then
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activated in accordance with standard procedure, thus initiating the continuous
and simultaneous recordings described above.” Id.[12] The report further provided that “[t]he polygraph technique used for this
examination was the Zone Comparison Test,” that “[t]hree series of questions
were to be administered with each series containing exactly the same questions
previously reviewed and discussed with the subject in the pretest,” that “[t]he
third test may or may not be asked in the same order, but used the same
questions,” and that “[t]his enables the examiner to compare the relevant
questions with the control questions (technical questions necessary to conduct a
proper test with this technique).” Id. The report set forth the results of the
examination as follows:
RESULTS:
During the pretest portion of the examination, the subject gave
the following information:
Mr. Kimble stated that he did not touch the six year old in a
sexual manner. Mr. Kimble further stated that he did not feel
that the molest even occurred.
The subject was given the series, consisting of the three tests
mentioned above. The results were that he did contain specific
reactions to the questions pertaining to the specific issue at hand,
the object of the examination. The following were the relevant
questions asked, and his response(s):
Q. Did your penis touch [D.C.’s] vagina?
A. No.
Q. Did your penis touch [D.C.’s] vagina while living in Wabash?
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A. No.
Q. Did your finger touch [D.C.’s] vagina?
A. No.
Id. The report set forth conclusions as follows: “After careful analysis of the
subject’s responses, the results were found to be: Deception indicated. Hence;
It is the opinion of this examiner that the subject was not totally truthful in his
responses to the questions asked.” Id.[13] Clingenpeel administered the polygraph examination to Kimble and testified
that he went to polygraph training for two months in Georgia in 1995, that he
was a deputy sheriff and conducted polygraph examinations for the Kosciusko
Sheriff’s Office from 1995 to 1997, and that in 1997 he was offered a job with
the United States Secret Service. When asked to explain how a polygraph
examination is set up and conducted, he testified that the examination is based
on the autonomic nervous system, it measures sweat gland activity, respiration,
and heartbeat, and that when a body is introduced to a threat the heart rate
increases, the hands become sweaty, and breathing increases. When asked
about control questions, Clingenpeel responded that he had control questions,
which are basically background questions, he had relevant questions that are
specific to the allegation, he mixes those questions in, he goes over the
questions prior to the examination with the examinee and tells the examinee
exactly what questions he will ask and never asks any surprise questions, and
that he asks the same questions three different times. He stated that examinees
are nervous and he finds their baseline by giving them a pretest and adjusts the
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polygraph instrument for their baseline, he also makes adjustments between
questions, he does not ask rapid fire questions but lets the instrument settle, and
that he makes his readings from the baseline. He testified that he prepared the
May 30, 1997 polygraph examination report and that he prepared a report after
every polygraph examination he administered.
[14] The prosecutor moved to admit the polygraph examination report, and
Kimble’s defense counsel indicated he had preliminary questions for purposes
of objection. Defense counsel asked Clingenpeel if he had any independent
recollection of his examination of Kimble, and Clingenpeel indicated that he
did not but that he recognized Kimble’s name. Clingenpeel indicated that he
did not know where the paper printouts generated by the polygraph instrument
were located and that he had not reviewed those in nearly twenty years, and
that the report was prepared by him as a polygraph examiner in the normal
course of business. The court found that Kimble consented to the admission of
the polygraph examination report and admitted it.
[15] The prosecutor asked Clingenpeel what he meant when he stated “deception
indicated” in the conclusion in his report, and he responded: “That he lied to
me regarding those relevant – three relevant questions.” Transcript at 67. On
cross-examination, when asked if the examiner has discretion as far as making a
call regarding deception, Clingenpeel responded affirmatively. He stated that
“[w]hen they’re close calls, it’s inconclusive.” Id. at 73. The trial court
instructed the jury and stated:
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Ladies and gentlemen, I do want to instruct you that under the . .
. law, polygraph tests are not admissible absent stipulation. So
while I have admitted the results of the stipulation, you are
cautioned that [the polygraph examination report] tends only to
show whether [Kimble] was being truthful at the time of the
examination and it is within your province as the jury what
weight and effect you will give to [the report] and Mr.
Clingenpeel’s testimony. Do you understand that? Okay.
Id. at 74.
[16] The record reveals that the State presented evidence and elicited testimony from
Clingenpeel establishing his training and experience and the conditions of the
examination. Based upon the record, we conclude there was sufficient evidence
to determine the examiner’s qualifications and test conditions and the trial court
did not abuse its discretion in admitting the polygraph examination report into
evidence. See Davidson v. State, 558 N.E.2d 1077, 1085-1086 (Ind. 1990)
(holding the polygraph examiner testified as to his training and experience and
the conditions under which the appellant’s examination was conducted and the
trial court thus had sufficient testimonial foundation before it to rule the
polygraph results admissible).
[17] Further, even if the trial court erred in admitting the polygraph examination
report, we conclude any such error is harmless. D.C. testified as set forth below
that Kimble touched her with his hands and penis, he touched her “around
[her] vagina area,” and he “went around it, and then tried to go inside.”
Transcript at 33-34. During redirect examination of D.C. by the State, the
prosecutor noted that D.C. had stated in her deposition “I knew he touched
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me” and he touched her “vagina area,” that when asked how certain she was
that Kimble touched her, she had answered “I’m really certain that’s where he
touched me at,” and that D.C. agreed that is what she had stated. Id. at 41.
We also note that the trial court gave the jury a cautionary instruction regarding
the polygraph examination report, and conclude, in viewing the evidence as a
whole including D.C.’s testimony, that any error in the admission of the
polygraph examination report was harmless. See Majors, 773 N.E.2d at 239
(holding that, viewing the evidence as a whole, the polygraph evidence likely
had little effect on the jury and any error in its admission was harmless).
II.
[18] The next issue is whether the trial court abused its discretion in granting the
State’s motion to amend the charging information following its presentation of
its case-in-chief. Kimble argues that his defense was centered around the
specific allegations of the original Count II, that when preparing for the case
defense counsel prepared to refute the allegations that Kimble “moved his penis
up and down” while his penis was between D.C.’s legs, and that, “[b]y allowing
the amendment, the State was allowed to remove the primary allegation of the
attempt charge that would have been most indicative of [Kimble’s] intent to
attempt intercourse.” Appellant’s Brief at 16. The State argues that the
amendment was not substantive because the material element, namely, that
Kimble took a substantial step towards sexual intercourse, remained the same,
that the phrase “moving in an up and down movement” was surplusage not
required for establishing the attempted child molesting charge, and that without
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the deleted language it was still required to prove that Kimble took a substantial
step towards sexual intercourse with D.C. The State also argues that, assuming
Kimble’s cross-examination of D.C. revolved solely around the deleted
language in the charging information, Kimble had the opportunity to recall
D.C. for further questioning and did not do so.
[19] A charging information may be amended at various stages of a prosecution,
depending on whether the amendment is as to form or substance, which is a
question of law. Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014), reh’g denied.
Amendments to a charging information are governed by Ind. Code § 35-34-1-5.
Id. Subsection (b) of the statute provides in part that the indictment or
information may be amended in matters of substance before the
commencement of trial if the amendment does not prejudice the substantial
rights of the defendant. Id. Subsection (c) provides that, “[u]pon motion of the
prosecuting attorney, the court may, at any time before, during, or after the
trial, permit an amendment to the indictment or information in respect to any
defect, imperfection, or omission in form which does not prejudice the
substantial rights of the defendant.” Id. (quoting Ind. Code § 35-34-1-5(c)).
[20] A defendant’s substantial rights include a right to sufficient notice and an
opportunity to be heard regarding the charge; if the amendment does not affect
any particular defense or change the positions of either of the parties, it does not
violate these rights. Id. Ultimately, the question is whether the defendant had a
reasonable opportunity to prepare for and defend against the charges. Id. at
405-406. An amendment is one of form and not substance if a defense under
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the original information would be equally available after the amendment and
the accused’s evidence would apply equally to the information in either form,
and an amendment is of substance only if it is essential to making a valid charge
of the crime. Id. at 406 (citations omitted).
[21] Here, the State’s requested amendments to Count II did not delete an allegation
essential to making a valid charge of the crime and did not prejudice Kimble’s
substantial rights. Ind. Code § 35-42-4-3(a) provided at the time of the offense
that “[a] person who, with a child under fourteen (14) years of age, performs or
submits to sexual intercourse or deviate sexual conduct commits child
molesting, a Class B felony.” A person attempts to commit a crime when,
acting with the culpability required for commission of the crime, he engages in
conduct that constitutes a substantial step toward commission of the crime.
Ind. Code § 35-41-5-1. Count II of the information filed on December 19, 1997,
alleged:
[I]n May or June of 1996, at the County of Wabash, and State of
Indiana, one CHRISTOPHER LEE KIMBLE did attempt to
commit the crime of child molesting by knowingly or
intentionally pulling [D.C.’s] pants down, a child under 14 years
of age, and placing his penis between her legs and moving it in an
up and down movement, which conduct constituted a substantial
step toward the commission of the crime of child molesting, a
Class “B” Felony, which is performing sexual intercourse with a
child under 14 years of age.
Appellant’s Appendix Volume II at 22.
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[22] At trial, D.C. testified that Kimble took off her underwear from underneath her
nightgown, touched her with his hands and penis, and touched her vagina area.
On re-cross examination, Kimble’s defense counsel stated that Kimble was
“charged in Count II with an action that included an allegation that he placed
his penis between your legs and moved it up and down in an up and down
movement” and asked “[d]o you remember anything like that occurring,” and
D.C. answered “I do not.” Transcript at 43. The State, after it rested its case-
in-chief, moved to amend Count II of the information to replace the word
“pants” with the word “underwear,” to delete the language “and moving it . . .
in an up and down movement,” and to insert language that Kimble placed his
penis near her vagina. Id. at 79, 84. Kimble’s defense counsel objected and
argued that his cross-examination of D.C. was geared specifically toward the
language in Count II regarding “the penis moving up and down.” Id. at 84.
The court stated “whether he placed it – rubbed it up and down her leg or
placed it around her vagina, I don’t think that substantively changes do they
feel that either of those actions constitute a substantial step.” Id. at 85. The
court granted the State’s request to amend Count II and stated that the charge
would include the phrase “[a]nd touched his penis around her vaginal area”
and that the final instructions would reflect the language of the amended
charge. Id. at 86. The court instructed the jury:
The crime of Attempted Child Molesting is a Class B Felony.
Before you may convict the Defendant, the State must have
proved each of the following beyond a reasonable doubt. (1) The
Defendant, Christopher Kimble, (2) when [D.C.] was a child
under fourteen years of age, (3) knowingly or intentionally, (4)
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did pull [D.C.’s] underwear down and touched his penis around
her vaginal area, (5) which conduct constituted a substantial step
toward the commission of the crime of child molesting.
Id. at 104-105.
[23] Whether Kimble moved his penis in an up and down movement after he placed
it between D.C.’s legs was not essential to proving the charge of attempted child
molesting as a class B felony or to prove that Kimble took a substantial step
toward the commission of the crime, and the amendment did not affect
Kimble’s opportunity to prepare for and defend against the charge. The
amendments to Count II did not prejudice Kimble’s substantial rights and were
not improper. See Erkins, 13 N.E.3d at 406 (concluding the particular identity
of the co-conspirator performing the overt act was not essential to making a
valid conspiracy charge and the State’s amendment did not affect the
defendant’s ability to prepare a defense); Forney v. State, 742 N.E.2d 934, 939
(Ind. 2001) (holding the removal of an alleged overt act from the charging
information did not prejudice the defendant’s substantial rights).
III.
[24] The next issue is whether the evidence is sufficient to sustain Kimble’s
conviction for attempted child molesting as a class B felony. When reviewing
claims of insufficiency of the evidence, we do not reweigh the evidence or judge
the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995),
reh’g denied. Rather, we look to the evidence and the reasonable inferences
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therefrom that support the verdict. Id. We will affirm the conviction if there
exists evidence of probative value from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. Id.[25] Kimble argues that D.C.’s testimony was contradictory, that judging solely by
the acts he completed his intent is not clear, and that D.C.’s statement that he
“tried to go inside” was made from the viewpoint of an adult who twenty years
later was asked to recall what happened when she was four years old.
Appellant’s Brief at 13. The State responds that D.C. testified that Kimble
“tried to go inside” although she did not recall him penetrating her, Kimble’s
completed acts were strongly corroborative of his criminal intent, D.C.’s
testimony was not inherently contradictory or improbable, and the jury was
fully aware of D.C.’s incomplete memory and nonetheless found her testimony
convincing. Appellee’s Brief at 13.
[26] Ind. Code § 35-42-4-3(a) provided at the time of the offense that “[a] person
who, with a child under fourteen (14) years of age, performs or submits to
sexual intercourse or deviate sexual conduct commits child molesting, a Class B
felony.” The culpability requirement of the child molesting statute is knowingly
or intentionally. See Louallen v. State, 778 N.E.2d 794, 798 (Ind. 2002). A
person engages in conduct “intentionally” if, when he engages in the conduct, it
is his conscious objective to do so, and a person engages in conduct
“knowingly” if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2. “Sexual intercourse”
means “an act that includes any penetration of the female sex organ by the male
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sex organ.” Ind. Code § 35-31.5-2-302. The uncorroborated testimony of the
victim of a sexual attack, even if the victim is a minor, is sufficient to sustain a
conviction for child molesting. Feyka v. State, 972 N.E.2d 387, 393 (Ind. Ct.
App. 2012) (citing Morrison v. State, 462 N.E.2d 78, 79 (Ind. 1984)), rev. denied.
[27] A person attempts to commit a crime when, acting with the culpability required
for commission of the crime, he engages in conduct that constitutes a
substantial step toward commission of the crime. Ind. Code § 35-41-5-1. A
“substantial step” for purposes of the crime of attempt, is any overt act beyond
mere preparation and in furtherance of intent to commit an offense. Hughes v.
State, 600 N.E.2d 130, 131 (Ind. Ct. App. 1992). Whether a defendant has
taken a substantial step toward the commission of the crime is a question of fact
to be decided by the trier of fact based on the particular circumstances of the
case. Id. When determining whether the defendant has taken a substantial step
toward a crime, the focus is on what has been completed, not on what remains
to be done. Id. at 132.
[28] “Mens rea can be established by circumstantial evidence and inferred from the
defendant’s conduct and the natural and usual sequence to which such conduct
reasonably points.” Boling v. State, 982 N.E.2d 1055, 1057 (Ind. Ct. App. 2013)
(citing C.L.Y. v. State, 816 N.E.2d 894, 905 (Ind. Ct. App. 2004) (“The intent
element of child molesting may be established by circumstantial evidence and
inferred from the actor’s conduct and the natural and usual sequence to which
such conduct usually points.”), trans. denied ).
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[29] The record reveals that D.C. testified that Kimble entered her bedroom, took off
his pants, removed her underwear from underneath her nightgown, touched her
with his hands and penis, and touched around her vagina area. D.C. testified
that Kimble “went around it, and then tried to go inside.” Transcript at 34.
When asked “did he have penetration at all,” D.C. replied “[n]ot that I
remember.” Id. On cross-examination, Kimble’s defense attorney referenced
D.C.’s previous deposition and stated “you told me that Mr. Kimble came in,
pulled your underwear down, and then you blacked out,” and D.C. replied
affirmatively. Id. at 40. On redirect examination, the prosecutor stated “[n]ow,
of course, we didn’t go down . . . through the rest of that deposition” and noted
that D.C. was asked “[d]o you recall touching itself or did you black out” and
that she answered “I knew he touched me, uh, it’s just I think my mind kind of
forgot how much.” Id. at 41. The prosecutor noted that D.C. was asked which
private area Kimble touched and that D.C. had replied “[m]y vagina area,” and
D.C. indicated that was correct. Id. The prosecutor also noted D.C. was asked
“how certain are you that Mr. Kimble touched you,” that D.C. replied “I’m
really certain that’s where he touched me at because I have,” that defense
counsel then interrupted her and noted her reference to blacking out, and that
D.C. then stated “[t]hat’s from like, I don’t mean black out, that means it’s
where my mind left it, if that makes sense.” Id. D.C. indicated that is what she
stated in the deposition.
[30] To the extent Kimble argues D.C.’s testimony was not believable or inherently
contradictory, we cannot say that D.C.’s testimony that Kimble removed her
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underwear, touched her with his hands and penis, touched around her vagina
area, and “then tried to go inside,” Transcript at 34, was so inherently
improbable or equivocal that no reasonable person could believe it. Kimble
does not show how the testimony against him was somehow internally
inconsistent or incredibly dubious. See Surber v. State, 884 N.E.2d 856, 869 (Ind.
Ct. App. 2008) (holding that the testimony of a six-year-old victim was not
incredibly dubious despite some inconsistencies and that such inconsistencies
were appropriate to the circumstances presented, the age of the witness, and the
passage of time between the incident and the time of her statements and
testimony), trans. denied.
[31] A reasonable trier of fact could infer from Kimble’s conduct and the natural and
usual sequence to which his conduct reasonably points that he knowingly and
intentionally took a substantial step toward the penetration of D.C.’s female sex
organ by his male sex organ. Based upon the record, we conclude that the State
presented evidence of a probative nature from which a reasonable jury as the
trier of fact could find beyond a reasonable doubt that Kimble committed the
crime of attempted child molesting as a class B felony. See Boling, 982 N.E.2d
at 1057-1058 (noting that the victim testified that the defendant “touched her
‘front private’ first over her underwear and then under her underwear, directly
on her skin” and holding that “[t]he natural and usual sequence to which such
conduct reasonably points is that [the defendant] had taken a substantial step
toward inserting his finger or fingers into [the victim’s] vagina,” a reasonable
jury could find that the defendant had attempted to commit deviate sexual
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conduct, and the evidence was sufficient to support the defendant’s conviction
of attempted child molesting as a class A felony).
Conclusion
[32] For the foregoing reasons, we affirm Kimble’s conviction for attempted child
molesting as a class B felony.
[33] Affirmed.
May, J., and Pyle, J., concur.
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