MEMORANDUM DECISION
Statement of the Case
[1] In 2023, a jury convicted Ronald Easler of child molesting for acts involving C.C., his four-year-old step-granddaughter. The trial court sentenced Easler to 30 years of incarceration, with 5 of those years suspended to probation. Easler now appeals his conviction and sentence, raising three issues for our review:
1. Whether the State presented sufficient evidence at trial to support Easlers child molesting conviction;
2. Whether the State committed acts of prosecutorial misconduct that cumulatively constitute fundamental error; and
3. Whether the trial court abused its discretion in sentencing Easler.
[2] Because we conclude that there is insufficient evidence to support Easlers conviction, we reverse.
Facts and Procedural History
[3] When C.C. was four years old, she lived primarily with her mother, Chelsea; her grandmother, Faith; and Faiths husband, Easler, in Shelby County, Indiana. C.C. visited her father, Devin, on weekends. One day in late 2021 or early 2022, C.C. was alone with Easler in the driveway of their home behind Easlers truck, and Easler used his fingers to touch C.C.’s unclothed vagina. There were also other instances during this time period when Easler touched C.C.’s vagina with his fingers and with a hammer, all while her clothes were off.
[4] In mid-May 2022, C.C. disclosed to her father that Easler had touched her vagina, and her father reported this to law enforcement. Heidi Clossin subsequently conducted a forensic interview of C.C. During that forensic interview, C.C. “slapped her legs numerous times indicating that something similar to that had happened, and she also pointed to her private body areas on her body.” Tr. Vol. II at 31.
[5] On August 24, 2022, the State charged Easler with one count of child molesting as a Level 1 felony
1
. At Easlers jury trial, both C.C. and Easler testified, among others. The jury found Easler guilty as charged. The trial court sentenced Easler to 30 years executed at the Indiana Department of Correction, with 5 years suspended to probation. This appeal ensued.
Discussion and Decision
The State Presented Insufficient Evidence to Support Easlers Child Molesting Conviction
[6] Easler first argues that the State presented insufficient evidence at trial to support his conviction for child molesting as a Level 1 felony. “Sufficiency-of-the-evidence arguments trigger a deferential standard of appellate review, in which we ‘neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the [factfinder].’ ” Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)), rehg denied (Aug. 17, 2023). In our review, “we consider only ‘the probative evidence and reasonable inferences supporting the verdict.’ ” Id. (quoting Matheney v. State, 583 N.E.2d 1202, 1208 (Ind. 1992)). 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 Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).
[7] In order to convict Easler of child molesting as a Level 1 felony under Indiana Code section 35-42-4-3(a), the State had to prove beyond a reasonable doubt that Easler, who was at least 21 years old, knowingly or intentionally performed or submitted to sexual intercourse or other sexual conduct with C.C., who was less than 14 years old. Easler argues that the State failed to present sufficient evidence to show (a) Easler was the perpetrator and (b) he penetrated C.C. Because we conclude the State failed to prove “penetration,” we address only that issue.
[8] “Sexual intercourse,” as used in Indiana Code section 35-42-4-3(a), “means an act that includes any penetration of the female sex organ by the male sex organ.” I.C. § 35-31.5-2-302. “[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 v. State, 104 N.E.3d 1287, 1288 (Ind. 2018) (citing Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), on rehg (1997); Dinger v. State, 540 N.E.2d 39, 40 (Ind. 1989)). Similarly, “other sexual misconduct,” as used in Indiana Code section 35-42-4-3(a), “means an act involving ․ a sex organ of one (1) person and the mouth or anus of another person; or ․ the penetration of the sex organ or anus of a person by an object.” I.C. § 35-31.5-2-221.5. “[P]roof of the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient to demonstrate a person performed other sexual misconduct with a child.” Boggs, 104 N.E.3d at 1289.
[9] Here, the probative evidence and reasonable inferences supporting the verdict show that Easler touched C.C.’s unclothed vagina with his fingers and a hammer. The State did not present any evidence that Easler even slightly penetrated C.C.’s vagina when he touched her. Nevertheless, the State argues that C.C. indicated she felt pain when Easler touched her vagina and that the jury could have reasonably inferred that Easler penetrated her. In support, the State cites to Clossins testimony about C.C.’s forensic interview: “So during the interview C.C. slapped her legs numerous times indicating that something similar to that had happened, and she also pointed to her private body areas on her body.” Tr. Vol. II at 31 (emphasis added). Contrary to the States contention, this testimony demonstrates only that C.C. indicated Easler had slapped her legs or engaged in similar conduct; this testimony neither demonstrates that Easlers touching of C.C.’s unclothed vagina caused her pain nor that there was even the slightest penetration.
[10] In the absence of any physical or testimonial evidence showing that penetration occurred, we must conclude that the jury had no evidence from which it could infer that Easler at least slightly penetrated C.C.’s vagina. See Boggs, 104 N.E.3d at 1288–89; Spurlock, 675 N.E.2d at 315. Therefore, the State failed to present sufficient evidence to support Easlers conviction for child molesting as a Level 1 felony. Because this determination is dispositive, we do not address Easlers arguments regarding prosecutorial misconduct and the alleged inappropriateness of his sentence. However, we address the States request for us to remand this case with instructions to the trial court to enter judgment for child molesting as a Level 4 felony.
[11] “[W]hen we reverse a conviction for insufficient evidence, we may remand to the trial court to enter a judgment of conviction upon a lesser-included offense if the evidence is sufficient to support the lesser offense.” W.H. v. State, 231 N.E.3d 900, 905 n.2 (Ind. Ct. App. 2024) (quoting Alexander v. State, 13 N.E.3d 917, 922 (Ind. Ct. App. 2014)), trans. not sought. “The lesser-included offense is factually included in the crime charged if the charging instrument alleged that the means used to commit the crime included all the elements of the alleged lesser-included offense.” Neville v. State, 802 N.E.2d 516, 519 (Ind. Ct. App. 2004) (citing Wright v. State, 658 N.E.2d 563, 567 (Ind. 1995)).
[12] Here, the State charged Easler with only one offense: child molesting as Level 1 felony. In particular, the charging information alleged that Easler, “a person of at least 21 years of age, did knowingly or intentionally, with a child under fourteen (14) years of age, performed or submitted to sexual intercourse or other sexual conduct.” Appellants App. Vol. II at 24. The State contends that child molesting as a Level 4 felony is factually included in this charge. To convict Easler of child molesting as a Level 4 felony, the State would have to prove that Easler, with C.C. who was less than 14 years old, performed or submitted to any fondling or touching, of either C.C. or himself, with intent to arouse or to satisfy the sexual desires of either C.C. or himself. See I.C. § 35-42-4-3(b). Assuming arguendo that the “fondling or touching” element is factually included in the “perform[ing] or submitt[ing] to sexual intercourse or other sexual conduct” element, the charging information does not include the “intent to arouse or to satisfy the sexual desires” element of the Level 4 offense. We are thus constrained to conclude that the evidence is insufficient to support remanding this case for entry of judgment and resentencing for child molesting as a Level 4 felony. Accordingly, we reverse Easlers conviction for child molesting as a Level 1 felony.
[13] Reversed.
FOOTNOTES
1
. Ind. Code § 35-42-4-3(a)(1).
Felix, Judge.
Riley, J., and Kenworthy, J., concur.