COA tosses Level 1 felony child molesting convictions, orders entry of Level 4 felonies on remand

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Editor’s note: This article contains graphic sexual language.

The Court of Appeals of Indiana has overturned two Level 1 felony child molesting convictions in favor of lower-level felonies, citing insufficient evidence to support the more severe charges.

The COA overturned the two Level 1 felonies in Fredrick Austin v. State of Indiana, 22A-CR-1240.

At issue in the case was Indiana Code § 35-42-4-3(a)(1), which required the state to prove that Fredrick Austin engaged in “other sexual conduct” with H.A., a child under 14. Under I.C. 35-31.5-2-221.5(2), “other sexual conduct” was defined as “an act involving … the penetration of the sex organ or anus of a person by an objection.”

“While ‘the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient’ to prove ‘other sexual conduct,’ Boggs v. State, 104 N.E. 3d 1287, 1289 (Ind. 2018), the evidence here doesn’t establish even ‘slight’ penetration,” Judge Nancy Vaidik wrote in a Wednesday opinion.

Vaidik rejected the state’s reliance on Hale v. State, 128 N.E.3d 456 (Ind. Ct. App. 2019), trans. denied, finding it distinguishable.

“In Hale, we affirmed Level 1 felony child-molesting convictions where the victim said the defendant touched her vagina not just with his hand but with individual fingers, that it was like he was ‘trying to find something,’ that he was ‘pressing down really hard,’ and that it ‘hurt,’” Vaidik wrote. “There is no such evidence in this case.

“We therefore reverse the Level 1 felony convictions,” the judge concluded. “As requested by Austin, we remand this matter to the trial court with instructions to replace the two Level 1 felony convictions with two convictions for Level 4 felony child molesting (‘fondling or touching’) and to re-sentence Austin accordingly.”

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