ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK A. BATES KAREN M. FREEMAN-WILSON
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
SUPREME COURT OF INDIANA
DALE ROGER STEWART, )
) Supreme Court Cause Number
v. ) 45S00-0011-CR-639
STATE OF INDIANA, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause No. 45G02-9902-CF-25
ON DIRECT APPEAL
May 24, 2002
After a trial by jury, Dale Roger Stewart was found guilty of child
molesting as a Class A felony. He also was adjudged a habitual
offender. The trial court sentenced him to fifty years for the child
molesting conviction enhanced by twenty years for the habitual offender adjudication. In
this direct appeal, Stewart contends the evidence is not sufficient to sustain the
conviction. We disagree and therefore affirm.
The facts most favorable to the verdict show that forty-six-year-old Stewart was a
family friend of Z.D.s parents. Beginning in August 1998, Stewart visited Z.D.s
home nearly every weekend and spent the night on several occasions. During
these visits, Stewart played various video and board games with Z.D., sometimes into
the early morning hours. He would often bring Z.D. gifts, including candy.
The then eight-year-old Z.D. and his twelve-year-old sister often visited the home
of Sally Schlink, a neighbor. Schlinks two children were approximately the same
ages as Z.D. and his sister. Schlink met Stewart through Z.D.s family,
and Stewart would often visit the Schlink home while Z.D. was present.
Stewart spent most of these visits playing with the children, especially Z.D.
In December 1998, Stewart and the children were playing together at the Schlink
home. At some point Stewart and Z.D. went into a bedroom and
closed the door. The two emerged shortly thereafter. After the children
began teasing each other about French kissing, Stewart left the house. R.
Stewart lived in Mishawaka and had been recently released on parole after serving
a period of incarceration for a child molesting conviction. Sometime shortly after
the Schlink home incident, he was arrested for an unrelated parole violation and
detained in the St. Joseph County jail. During an interview with his
parole officer, Pamela Frederick, Stewart admitted to an inappropriate touching of Z.D.
R. at 141. Officer Frederick notified the Lake Station Police Department, which
assigned detective Ruth Smith to investigate the matter. Detective Smith talked to
Z.D., who told her that Stewart touched him in his private area; French
kissed him; put his mouth on his private parts; and tried to put
his private area into his butt. R. at 162. Detective Smith
then interviewed Stewart about the allegations. Stewart denied French kissing Z.D. and
claimed that any touching in the private area was accidental. R. at
157, 158. Stewart concluded the interview by stating, I dont even want
to argue the situation. I want to plead guilty to this.
R. at 160.
At trial, then ten-year-old Z.D testified that while in the bedroom at the
Schlink home, Stewart touched him in the wrong spots, which he described as
his private spot or private part. R. at 115, 129.
See footnote He
further stated that Stewarts mouth touched me in the private spot. R.
at 116. Z.D. also testified that similar incidents occurred in his bedroom
both before and after the incident at the Schlink home. According to
Z.D., on those other occasions Stewart put his mouth in, in the private
part. R. at 119.
The jury found Stewart guilty of child molesting as a Class A felony
and also adjudged him a habitual offender. Noting Stewarts six prior convictions
for child molesting over the past nineteen years and characterizing him as an
incorrigible pedophile, Judge Murray sentenced Stewart to the maximum term of fifty years
enhanced by twenty years for the habitual offender adjudication. R. at 287-88.
This direct appeal followed.
Stewart contends the evidence presented at trial is insufficient to support his conviction
for child molesting as a Class A felony. The standard for reviewing
sufficiency of the evidence claims is well settled. We do not reweigh
the evidence or assess the credibility of the witnesses. Lacey v. State,
755 N.E.2d 576, 578 (Ind. 2001). Rather, we look to the evidence
and reasonable inferences drawn therefrom that support the verdict and will affirm the
conviction if there is probative evidence from which a reasonable jury could have
found the defendant guilty beyond a reasonable doubt. Id.
Child molesting under Indiana Code section 35-42-4-3 is divided into two subsections and
encompasses the acts of sexual intercourse, deviate sexual conduct, and fondling or touching
with the intent to arouse sexual desires. Buck v. State, 453 N.E.2d
993, 997 (Ind. 1983). In this case, Stewart was charged with and
convicted of child molesting by deviate sexual conduct under subsection (a). Accordingly,
the State was required to prove that Stewart (1) performed or submitted to
(2) deviate sexual conduct (3) with a child under the age of fourteen.
Ind. Code § 35-42-4-3(a). Deviate sexual conduct is defined as an
act involving: (1) a sex organ of one person and the mouth
or anus of another person; or (2) the penetration of the sex organ
or anus of a person by an object. I.C. § 35-41-1-9.
Stewart argues his conviction must be vacated because there was insufficient evidence of
an act involving his mouth and Z.D.s sex organ. More specifically, Stewart
maintains that because the State never elicited testimony concerning what Z.D. meant by
his use of the terms private part and private spot and because Z.D.
testified that he was always clothed during these encounters, there was not enough
evidence to sustain the conviction as charged.
Stewart does not explain why he finds it significant that Z.D. was fully
clothed during the encounters. We note, however, that it is too plain
for further elaboration that a complete state of undress is not required for
a child to be a victim of deviate sexual conduct as defined in
Indiana Code section 35-41-1-9(1). As for Stewarts contention that there was no
explanation of what was meant by Z.Ds use of the terms private part
or private spot, we note that the uncorroborated testimony of a child victim
is sufficient to support a conviction for child molesting. Barger v. State,
587 N.E.2d 1304, 1308 (Ind. 1992). And this is so despite the
childs limited sexual vocabulary or unfamiliarity with anatomical terms. Butcher v. State,
627 N.E.2d 855, 862 (Ind. Ct. App. 1994). The question here is
whether there was sufficient evidence before the jury so that it could reach
the conclusion that when Z.D. referred to private part or private spot he
was referring to a sexual organ. We believe there was such evidence.
The State introduced Stewarts out-of-court written statement given to Detective Smith of
the Lake Station Police Department. Relevant portions are as follows:
Q: At any time did you touch [Z.D.s] penis?
Q: At any time did you have [Z.D.] touch your penis?
Q: Did you touch [Z.D.s] private area at any time?
A: Its possible. There were times when [Z.D.] sat on my lap to
play a computer game or another game and there was probably some kind
of touch that was not intentional on my part.
Q: Did [Z.D.] ever touch your private area accident[al]ly?
A: He may have. He probably did.
R. at 154. At first glance this exchange seems to suggest the
possibility that both Detective Smith and Stewart were making a distinction between private
area and penis. However, when specifically questioned why she varied from an
anatomically correct phrase to the phrase private area, the detective explained:
The first question is a question that I, as [an] adult, would ask
another adult knowing that he would know the anatomically correct names for the
body parts. In the next question, did you touch [Z.D.s] private area,
those are the words [Z.D.] used when he was interviewed, private area, private
R. at 161. From this explanation, the jury very easily could have
reached the conclusion that both adults knew that private area or private part
referred to penis. In like fashion, the jury reasonably could have reached
the conclusion that Z.D. was making the identical reference.
See footnote It is true
that the deputy prosecutor in this case would have been better advised to
have used anatomically correct dolls in the presentation of the States case in
chief. However, we agree with the observation that the term private part
is generally understood as a commonplace designation of genital procreative organs.
v. Dennison, 435 P.2d 526, 529 (Wash. 1967) (finding sufficient evidence to support
a conviction for child molestation where victim testified that the defendant put his
private parts into her private parts).
The State presented sufficient evidence to support Stewarts conviction for child molesting as
a Class A felony. Accordingly, we affirm the judgment of the trial
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
We take exception to the States characterization of the evidence.
The State declares Z.D. testified that . . . Stewart touched [his] penis.
Br. of Appellee at 4. It then provides a record citation
where this testimony supposedly may be found.
Id. This particular characterization
of Z.D.s testimony appears multiple times in the States brief along with a
record citation. See Br. of Appellee at 2, 4, 5, 6.
However, the record is clear that at no time did Z.D. use the
word penis in his testimony. The meaning and inference of the words
Z.D. actually used are at the heart of the sufficiency of evidence claim
made in this appeal.
We note for example that in the widely-used Good-Touch/Bad-Touch
( program, which
is generally taught to children in pre-school through sixth grade, anatomically correct names
are not used. Rather, the term private parts is used. This
program defines the term private parts as those covered by a two piece
bathing suit for little girls, and by swim trunks for little boys.
See Childhelp USA/Virginia, Good Touch Bad Touch: A Body Safety Education, at
(last visited Apr. 17, 2002).
Compare Shackelford v. State, 622 N.E.2d 1340, 1344 (Ind. Ct. App.
1993) (holding that the child victims testimony that she kissed the defendants private
parts was not specific enough to prove the deviate sexual conduct variety of
child molesting because the victim never defined the term private parts).