BRADFORD, Judge.
Appellant-Defendant LeChann Davis appeals her conviction for Class C felony Child Molesting.
Paul and Cherieka Spells (collectively, "the Spellses"), along with their four children, including E.S., lived in Davis's home for a few months during 2009, after losing their home as a result of financial hardship. Cherieka loved, trusted, and respected Davis, and Davis acted like an aunt to the Spellses' children. While living in Davis's home, the Spellses and their children occupied an upstairs bedroom, and the children frequently watched television from the downstairs living room with Davis. While watching television with the children, Davis often treated six-year-old E.S. differently than his younger siblings. For instance, Davis would have E.S. sit with her on a couch or in a chair, and would touch his bottom, back, and legs. E.S. did not like being touched by Davis and considered her touches to be "bad" touches.
On one occasion while the children were watching television in the living room with Davis and the Spellses were upstairs in the bedroom, Davis kissed E.S. on his mouth. Davis's mouth was open when she kissed E.S., and E.S. felt Davis's teeth and tongue in his mouth. During this kiss, which E.S. described as lasting a long
A few weeks later, Davis approached the Spellses and told them that she needed to "confess" something to them. Tr. p. 148. Davis told the Spellses that E.S. "has a strong lust spirit" that she had kissed E.S. twice. Tr. p. 149. Davis told the Spellses that E.S.'s spirit "was so strong she couldn't resist him." Tr. p. 149. Davis additionally told the Spellses that "she became aroused by him" and that "she realized that she didn't need to be around him or any other child." Tr. p. 150.
After hearing that Davis had kissed E.S., Cherieka was "in shock." Tr. p. 150. The Spellses immediately took their children and went to Cherieka's mother's home where they talked alone with E.S. Without telling E.S. what Davis had told them, Cherieka asked E.S. whether anyone had "ever done anything that he felt... was a bad touch." Tr. p. 153. E.S. said yes and began to cry before telling his parents that Davis had "laid him down and... started kissing him, sticking her tongue in his mouth and biting his lip." Tr. p. 153. E.S. also told his parents that Davis had "pinch[ed] his butt." Tr. p. 153. The Spellses subsequently reported Davis's actions to the pastor at the church where Davis ran a daycare. Cherieka also placed an anonymous call to child protective services "to get information to see how [she] should" proceed and notified the police. Tr. p. 157.
On October 2, 2009, the State charged Davis with Class C felony child molesting, Class C felony criminal confinement, and Class D felony battery. Following a hearing on November 5, 2010, the trial court determined that E.S.'s statement to his mother that Davis "pinched his butt" was admissible under the protected person statute. The trial court conducted a bench trial on November 10, 2010, at the conclusion of which the trial court found Davis guilty of Class C felony child molesting and not guilty of Class C felony criminal confinement and Class D felony battery. On February 17, 2011, the trial court sentenced Davis to four years of incarceration with three years suspended to probation. This appeal follows.
Davis contends that the trial court abused its discretion in admitting E.S.'s statement to his mother under the protected person statute.
Taylor v. State, 841 N.E.2d 631, 634 (Ind. Ct.App.2006), trans. denied.
The Protected Person Statute (PPS), Indiana Code section 35-37-4-6 (2009), allows for the admission of otherwise inadmissible hearsay evidence relating to specified
Taylor, 841 N.E.2d at 634-35 (citing Indiana Code § 35-37-4-6(a) through (g)). It is undisputed that the PPS applies in the instant matter because child molesting is an enumerated crime under the statute, and E.S., who was six years old when the molestation occurred, is deemed to be a "protected person." Ind.Code § 35-37-4-6(a)(1) & (c)(1).
The PPS is generally described as an effort to spare children the trauma of testifying in open court against an alleged sexual predator. See Tyler, 903 N.E.2d at 466 (citing Miller v. State, 517 N.E.2d 64, 69-70 & n. 4 (Ind.1987)).
Taylor, 841 N.E.2d at 635.
In challenging the trial court's decision to allow E.S.'s mother to testify that E.S. told her that, in addition to the tongue kisses, Davis "pinched his butt," Davis argues that the statement was not admissible under the PPS. However, even assuming that it was an abuse of discretion for the trial court to admit E.S.'s out-of-court statement to his mother that Davis "pinched" his bottom, we conclude that any such abuse of discretion would be, at most, harmless. During Davis's bench trial, E.S. testified that Davis kissed him with an open mouth, put her tongue in his mouth, and "sucked [his] breath in." Tr. p. 112. In addition, E.S.'s mother testified that Davis told her that E.S. "had a strong lust spirit," that she kissed him twice, and that "she became aroused in her flesh by him." Tr. pp. 149-50. At the conclusion of Davis's bench trial, the trial court found that Davis had committed Class C felony child molestation by twice kissing E.S. and inserting her tongue in his mouth. The
Davis also contends that the evidence presented at trial was insufficient to support her Class C felony child molesting conviction. Specifically, Davis claims that the evidence was insufficient to prove the intent element of child molesting.
Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002).
In order to convict Davis of Class C felony child molesting, the State was required to prove that Davis (1) performed or submitted to any fondling or touching; (2) with a child under the age of fourteen; (3) with the intent to arouse or to satisfy the sexual desires of either the child or herself. Ind.Code § 35-42-4-3. Mere touching alone is not sufficient to constitute the crime of child molesting. Nuerge v. State, 677 N.E.2d 1043, 1048 (Ind.Ct.App.1997), trans. denied. The State must also prove beyond a reasonable doubt that the act of touching was accompanied by the specific intent to arouse or satisfy sexual desires. Id. The intent element of child molesting may be established by circumstantial evidence and may be inferred "`from the actor's conduct and the natural and usual sequence to which such conduct usually points.'" Id. (quoting Pedrick v. State, 593 N.E.2d 1213, 1220 (Ind.Ct.App.1992)).
Here, the facts most favorable to the judgment show that Davis kissed E.S., whom she knew to be six years old, on the lips twice. Davis admitted and E.S. testified that Davis used her tongue in kissing E.S. In addition, Davis "confessed" to E.S.'s parents that she kissed E.S. twice and that she became "aroused in her flesh" by E.S. Tr. p. 148, 150. We conclude that the trial court reasonably inferred from Davis's conduct, her statement that she became "aroused in her flesh" by said conduct, and the natural and usual sequence associated with "tongue kissing" that Davis intended to arouse or satisfy sexual desires.
ROBB, C.J., and BARNES, J., concur.