MEMORANDUM DECISION
Statement of the Case
[1] Ruben M. Rodriguez, Jr. appeals from his conviction for one count of Level 1 felony attempted child molesting,
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challenging the sufficiency of the evidence. Concluding the evidence is sufficient, we affirm.
Facts and Procedural History
[2] Rodriguez, who was thirty-five at the time of trial, is the father of S.R. and S.R.’s two older siblings. S.R. also has a younger sibling. Although Rodriguez was no longer in a romantic relationship with S.R.’s mother, he often lived with S.R.’s family to help with parenting the children. S.R.’s mother and S.R.’s youngest sibling slept in a room. S.R. slept on an inflatable mattress in the living room with Rodriguez and her two older siblings. S.R. slept next to Rodriguez.
[3] Sometime between December 1, 2020 and May 16, 2021, when S.R.’s brother and sister were sleeping, Rodriguez lifted S.R. on top of him. He then put his private inside S.R.’s private. The State charged Rodriguez, and he waived his right to a jury trial.
[4] At trial, S.R., who was ten years old, was reluctant to testify to her fathers offenses. The State asked her, “[do] you want to be here today?” Tr. Conf. Vol. 2, p. 80. S.R replied, “Not really.” Id. Rodriguez then had the opportunity to cross-examine her. However, the State introduced States Exhibit 5, which is S.R.’s forensic interview, ruled admissible under the protected-person statute. See Ind. Code § 35-37-4-6 (2023); see also, Appellants App. Vol. II, pp. 48-49 (motion); 85 (order); Supp. Ex. Vol., p. 3 (States Ex. 5; forensic interview). The facts related to the child molestation allegation are the facts as given by S.R. in her forensic interview with Patricia Smallwood at the Dr. Bill Lewis Center for Children, which occurred when she was eight years old.
[5] S.R. identified the parts of the body she described when referring to her private, the area of the vagina, and Rodriguezs private, the area of the penis. Ex. Vol. pp. 18-19 (States Ex. 3 (female anatomy); States Ex. 4 (male anatomy)). S.R. said that Rodriguez took his private out of his shorts and underwear and put it inside her private, moving her sideways back and forth with his hands. S.R.’s underwear was on and went inside her private as well. She said it felt different and hurt her private.
[6] S.R.’s mother testified that S.R.’s behavior changed after the molestation. According to her mother, she was spontaneous and outgoing before, but she became more serious and kept her distance socially afterwards. And during their interviews with forensic interviewer Smallwood, S.R.’s siblings corroborated S.R.’s account of the sleeping arrangements.
[7] At the conclusion of his bench trial, the court found Rodriguez guilty as charged. The court sentenced him to an aggregate sentence of forty years executed in the Department of Correction.
Discussion and Decision
[8] Rodriguez challenges the sufficiency of the evidence supporting his conviction for Level 1 felony attempted child molesting. “For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact.” Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). “On sufficiency challenges, we will neither reweigh evidence nor judge witness credibility.” Id. “We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. Additionally, the evidence need not overcome every reasonable hypothesis of innocence. Drane v. State, 867 N.E.2d 144, 147 (Ind 2007).
[9] Level 1 felony child molesting is established when there is evidence a defendant, “with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse ․ if it is committed by a person at least twenty-one (21) years of age.” Ind. Code § 35-42-4-3(a)(1) (2015). Sexual intercourse is defined by statute as “an act that includes any penetration of the female sex organ by the male sex organ.” Ind. Code § 35-31.5-2-302 (2012). And an attempt occurs when a person, “acting with the culpability required for commission of the crime, [ ] engages in conduct that constitutes a substantial step toward commission of the crime.” Ind. Code § 35-41-5-1 (2014).
[10] The evidence as a whole established that when S.R. was eight years old, Rodriguez, who was over twenty-one-years of age, took his private out of his clothing, put it inside her private, and moved her around on top of him. S.R.’s underwear went inside her private and she felt his private inside her private. When he did so, if felt different and hurt. S.R. described and noted on anatomical diagrams the locations she referred to as privates, which were her vaginal area and the area of Rodriguezs penis.
[11] Rodriguez argues that “[w]ith [S.R.’s] panties being on it would be impossible for [Rodriguez] to insert his penis into the victim.” Appellants Br. p. 14. S.R. stated that Rodriguez rocked her from side to side, and he contends these movements “were inconsistent with an attempt to insert himself into her vagina.” Id. The presence of the panties may have prevented full insertion but that does not negate the attempt. Otherwise, he merely requests for us to reweigh the evidence, a task we decline to undertake. See Hall, 177 N.E.3d at 1191. The evidence is sufficient to support Rodriguezs conviction.
Conclusion
[12] In light of the foregoing, we affirm the trial courts judgment.
[13] Affirmed.
FOOTNOTES
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. Rodriguez was also convicted of Level 4 felony child molesting but does not challenge that conviction on appeal.
Baker, Senior Judge.
Riley, J., and Brown, J., concur.