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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.

FILED
Oct 19 2010, 8:55 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DAVID M. PAYNE Ryan & Payne Marion, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana STEPHEN R. CREASON Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
WILLIAM D. OSBORN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 27A04-0911-CR-670

APPEAL FROM THE GRANT SUPERIOR COURT The Honorable Randall L. Johnson, Judge Cause No. 27D02-0812-FA-193

October 19, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE William D. Osborn appeals his conviction, after a jury trial, of three counts of child molesting, as class C felonies. We affirm. ISSUE Whether sufficient evidence supports the convictions. FACTS From the time that K.H.1 was a baby, she lived with her mother S. ("Mother"), her brother C.H. (who was three years older than K.H.), and Osborn. In 1998, Mother and Osborn had a daughter, N.O., and they subsequently married. When K.H. was nine years old, Osborn began molesting her. While Mother was at work, Osborn would have K.H. join him on his bed for "naps." Tr. 173. There were "lots" of these naps, "dozens of them." Id. When K.H. was "ten," or "maybe nine," he "put lotion all over [her] body" when she "was completely naked." Id. at 155. On another occasion, Osborn had both K.H. and N.O. in his bed "taking a nap." Id. at 152. While N.O. was asleep, Osborns hands "move[d]" over K.H.s back and "front side," where he "rub[bed] over" her breasts. Id. On a later occasion, K.H. and Osborn were in his bed with K.H. "in front of him" and "pressed up against" him. Id. at 151. K.H. "had a bra and underwear on," but Osborn "didnt have anything on." Id. Osborn "moved [her] hand" to place it "on him," such that she was "touching" his erect penis, while he was "breathing heavy." Id.
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K.H. was born October 12, 1996.

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On a subsequent occasion, while Mother was on her "three to eleven" shift at work, K.H. was "tak[ing] a nap," "like usual," with Osborn "massag[ing] [her] body, rub[bing] all over it." Id. at 150, 149. This time, "when he was rubbing [her] legs," he "rubbed over [her] vagina," "put[ting] pressure" and "push[ing]" there but not penetrating her with his finger, and "breathing heavy." Id. at 149, 150. Finally, in 2008, "when [she] was 12," Osborn and K.H. were lying in his bed "to take a nap like always" while Mother was at work. Id. at 147, 143. Osborn "was . . . massaging [her] back and rubbing [her] body," and both were naked. Id. He "pulled" her "on top of him," with her "legs . . . on the side of him," and moved her "up and down on top . . . of him . . . pressed up against him." Id. at 174, 143. Osborn was breathing hard, and his penis was erect, rubbing against her vaginal area. Wet "stuff . . . came out of" his penis. Id. at 143. C.H. "knocked on the door," and Osborn "told [K.H.] to get up and get dressed and go clean [her]self off." Id. At some point during 2008, K.H. told Mother that Osborn had massaged her for relief from her menstrual cramps. Id. at 153. Mother "talked to him" and told him "not to do that cause [K.H.] felt uncomfortable." Id. After that, Osborn "didnt massage [K.H.] for a while," but "then that last thing happened" wherein she "was on top of him." Id. Osborn never told K.H. not to tell Mother about what he did to her, but did "say[] that, ,,If your mom knew about this, she would flip." Id. at 161. K.H. "felt that if [she] told," Mothers "life would be ruined because thats the man that she loved," and it would destroy K.H.s "family." Id. at 142. Nevertheless, during the "short three day 3

week" before Thanksgiving in 2008, K.H. told her friend C.B. that Osborn was "doing things to [her] that he shouldnt have been." Id. at 138. C.B. advised her "to tell [her] mom." Id. The day after Thanksgiving, K.H. told Mother but did "not tell" her "every detail" because K.H. "was scared and . . . was just worried that she would think it was [her] fault." Id. at 179. Mother ordered Osborn to move out of the home immediately. On December 31, 2008, the State charged Osborn with four counts of child molesting.2 On September 28

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