COA reverses child molesting finding against 10-year-old

Back to TopCommentsE-mailPrintBookmark and Share

A 10-year-old boy adjudicated as a delinquent for acts that would be considered Level 4 felony child molesting if committed by an adult will have his adjudication dropped after the Indiana Court of Appeals held Friday there was insufficient evidence to support a true finding of the conduct.

In August 2016, the Department of Child Services contacted the Wabash City Police Department after 4-year-old B.M. made child molesting allegations against 10-year-old D.P. B.M.’s father lived with D.P.’s mother, and the molestations allegedly occurred when B.M. would visit her father on the weekends.

B.M.’s allegations were made during a videotaped interview at the Child Advocacy Center in Marion, though the video was not admitted as evidence under the Protected Person Statute. But during a fact-finding hearing, B.M. testified D.P. touched her genitals with his hand, though she had her clothes on and did not feel the touching.

The state filed a petition alleging D.P. was a delinquent for committing acts that, if committed by an adult, would be Level 3 felony child molesting for sexual intercourse or other sexual conduct and Level 4 felony child molesting for fondling or touching with intent to arouse or satisfy sexual desires. The juvenile court found only the Level 4 felony child molesting allegation true and adjudicated D.P. a delinquent on that count. He was ordered to serve 10 days in a detention facility and was placed on probation for 12 months.

On appeal in D.P. v. State of Indiana, 85A04-1702-JV-383, D.P. argued the evidence was insufficient to support the true finding for Level 4 felony child molesting. The Indiana Court of Appeals agreed, with Chief Judge Nancy Vaidik writing Friday the state failed to prove beyond a reasonable doubt that D.P.’s touching was intended to arouse or satisfy sexual desires.

Specifically, Vaidik said there was no evidence of exactly where D.P. touched B.M., although she identified it as her genital area on an anatomical drawing of a little girl. Further, there was no evidence of how or how long he touched her, nor was there evidence of kissing or of D.P. asking B.M. to also touch him.

“While we acknowledge that B.M. was a young witness and there was great difficulty in procuring her testimony, we are restricted to the evidence presented at the fact-finding hearing,” the chief judge wrote. “And based on that evidence only, we do not believe that a reasonable factfinder could find beyond a reasonable doubt that D.P. touched or fondled B.M. with the intent to arouse or satisfy his sexual desires.”

Thus, the appellate court reversed the true finding against D.P. for Level 4 felony child molesting.




Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: Here are the two research papers: 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.