The Indiana Court of Appeals has upheld a Porter man’s conviction on a charge of child molesting.

On Friday, the Court rejected the appeal of Matthew A. Parks, 31, who was convicted by jury in November 2012 of molesting a child under the age of 14, a Class C felony punishable by a term of two to eight years.

Porter Superior Court Judge Bill Alexa subsequently sentenced Parks to four years in the Porter County Jail, with all but one of those years suspended and to be served on formal probation. Alexa also ordered Parks to complete a Project Pro evaluation, while a no-contact order with the victim is to remain in effect throughout his three years on formal probation.

Parks challenged his conviction on two grounds: whether the evidence presented at trial was sufficient to sustain his conviction; and whether prosecutorial misconduct occurred amounting to fundamental error.

The Court rejected both grounds.

In connection with the sufficiency of the evidence, the Court ruled, “the evidence most favorable to the verdict shows that Parks repeatedly touched” the victim inside her clothing, rubbed himself against her, and “forced” her to touch him intimately.

“Despite this clear evidence,” the Court noted, “Parks argues that the state failed to prove beyond a reasonable doubt that any of the incidents occurred with the intent to arouse,” that is, that it failed to prove that the “fondling or touching” occurred specifically in order “to arouse or to satisfy the sexual desires of either the child or the older person,” which is the statutory threshold for the offense.

But the “intent element of child molesting may be established by circumstantial evidence and may be inferred from the defendant’s conduct and the natural and usual sequence to which such conduct usually points,” the Court ruled. The act of rubbing and touching “is ample evidence to show the intent to arouse and “(w)e conclude that there is more than sufficient evidence to support Parks’ conviction.”

Parks also based his appeal on a claim of prosecutorial misconduct, namely, on his constitutional right against compulsory self-incrimination. In particular, Parks argued in his appeal that the prosecutor, in closing arguments, twice stated that the victim is “the only witness to come and tell you what happened to her.”

The Court also rejected that argument. The “prosecutor did not explicitly refer to Parks by name or directly compare his knowledge with (the victim’s),” the Court ruled. “Instead, the prosecutor made two isolated comments that (the victim) was the only witness to the molestations who testified.”

“(E)ven if these statements were misconduct, they certainly do not rise to the level of fundamental error,” the Court added.

According to Porter Police, in January 2010 the PPD was contacted by a Department of Child Services investigator, who advised that a girl under her jurisdiction had reported being “inappropriately touched” some five to seven times by Parks in the fall of 2009.

Later that day, a PPD detective and the DCS investigator spoke with the girl’s mother, who initially advised that she was unaware of the allegation, then admitted having read her daughter’s diary in which the girl had written something about “Matthew” trying “to feel her up.” But, the PPD detective stated in his affidavit, the girl’s mother “disregarded it.”

In February 2010, the detective stated, he interviewed one of the girl’s friends, who advised that the girl told her about Parks, that she “had written about this in her diary,” but that “her mom had read it, got mad, and tore it up.”

In March 2010, the detective stated, he again interviewed the girl’s mother, who advised that she thought her daughter had been referring to a boyfriend in her diary entry and not to Parks. “I asked her why she had destroyed the journal and was told that she did not do that,” that her daughter “became upset that she had read it and destroyed the journal herself.”

Posted 1/21/2013