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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: JOHN QUIRK Muncie, Indiana

FILED
May 29 2008, 9:56 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JERRY SHIPLEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 68A01-0711-CR-503

APPEAL FROM THE RANDOLPH CIRCUIT COURT The Honorable Marianne Vorhees, Special Judge Cause No.68C01-0306-FC-26

May 29, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Following a jury trial, Jerry Shipley was convicted of child molesting, a Class C felony. Shipley appeals his conviction, contending that there was insufficient evidence to support his conviction. Concluding that the evidence is sufficient, we affirm. Facts and Procedural History Shipley is J.C.'s grandfather. J.C. and her two sisters would often stay the night at Shipley's house. After Shipley's wife died when J.C. was nine or ten years old, Shipley and the three girls would share one bed when the girls spent the night. J.C. testified that on at least two occasions, as she lay with her back to Shipley in the bed, she felt Shipley rub his penis against her leg. Shipley denied touching J.C., even accidentally. The State charged Shipley with child molesting as a Class C felony.1 A jury found Shipley guilty and he was sentenced to four years at the Department of Correction. Shipley now appeals his conviction. Discussion and Decision I. Standard of Review When reviewing a claim of insufficient evidence, we will not reweigh evidence or judge witnesses' credibility. Grim v. State, 797 N.E.2d 825, 830 (Ind. Ct. App. 2003). We will consider only the evidence favorable to the judgment and the reasonable inferences drawn therefrom. Id. We will affirm a conviction if the lower court's finding is supported by substantial evidence of probative value. Id.
1

Shipley was charged with two additional counts of child molesting, both Class C felonies, for acts allegedly committed against two other victims. These counts were dismissed prior to trial pursuant to Shipley's motion.

2

Our supreme court has recently summarized our standard of review when assessing claims of insufficient evidence: When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted) (emphasis in original). II. Sufficiency of the Evidence To convict Shipley of child molesting as charged, the State was required to prove that he performed a touching of J.C., who was then under fourteen years of age, with the intent to arouse or to satisfy Shipley's sexual desires. See Ind. Code

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