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COA upholds man’s belated appeal, molestation conviction

May 27, 2015

Citing the defendant’s limited understanding of English and his timely request for appellate counsel, the Indiana Court of Appeals affirmed the decision by the trial court to grant a man’s belated notice of appeal regarding a child molesting conviction.

Somchanh Amphonephong was convicted of one count of Class A felony child molesting and two counts of Class C felony child molesting related to the five-year-old nieces of his girlfriend. While J.B. slept in the same bed with her aunt and Amphonephong, Amphonephone put his hand in her underwear and touched her privates repeatedly. The aunt later discovered that her boyfriend had molested the second niece after J.B. told her what happened.

After he was convicted, Amphonephong told the court he wanted to appeal the Class C felony conviction related to the conduct with J.B. The trial court said it would appoint a public defender but never did. Eighteen months later, Amphonephong filed a pro se motion with the appeals clerk for permission to file a belated appeal. He later filed it with the trial court, which granted his motion, acknowledging it never appointed counsel.

In Somchanh Amphonephong v. State of Indiana, 02A03-1402-CR-88, the state challenges the grant of his petition to file a belated appeal, arguing Amphonephong wasn’t diligent in pursuing his appeal. The judges rejected the state’s argument, pointing out that Amphonephong told the trial court at his sentencing that he wanted to appeal and that when he learned he filed his pro se motion with the wrong court, he filed it with the trial court without delay. The judges also cited his limited proficiency with English as he is from Laos.

The judges also rejected Amphonephong’s argument that the evidence was insufficient to support his Class C felony conviction. He claimed he was asleep when he touched J.B. in bed so he could not have knowingly had the intent to arouse or satisfy his or J.B.’s sexual desires. But the evidence shows that J.B. removed his hands from her underwear several times and he kept putting his hands back in. As such, there was sufficient evidence to support the jury’s determination that he knowingly touched J.B. and did so with the intent to arouse or satisfy his sexual desires, the COA held.

 

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