The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 15 2018, 8:07 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David C. Kolbe Curtis T. Hill, Jr.
Warsaw, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven Hagan, March 15, 2018
Appellant-Defendant, Court of Appeals Case No.
43A03-1706-CR-1324
v. Appeal from the Kosciusko
Superior Court
State of Indiana, The Honorable David C. Cates,
Appellee-Plaintiff. Judge
Trial Court Cause No.
43D01-1606-F6-328
Barnes, Judge.
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Case Summary
[1] Steven Hagan appeals his convictions for Level 6 felony child seduction and
Class A misdemeanor contributing to the delinquency of a minor. We affirm.
Issues
[2] Hagan raises two issues, which we consolidate and restate as whether the
evidence is sufficient to sustain his convictions.
Facts
[3] Forty-seven-year-old Hagan lived with his wife and daughters, including A.H.
A.H.’s best friend was sixteen-year-old J.S. During late 2015, J.S. started
spending the night with A.H. frequently, and it increased gradually until she
was spending five nights a week with A.H. While J.S. was with the Hagans,
they provided her with food, toiletries, occasionally clothing, allowed her to
drive their car, asked if she could be placed on their health insurance, expected
her to follow the rules of their house, and built a bedroom for her in the
basement. Hagan got J.S. a job with his employer, added J.S. to their family
YMCA membership, and opened a bank account for her that required his
approval for withdrawals. At Christmas 2015, Hagan’s relationship with J.S.
began to change into a sexual relationship.
[4] In March 2016, Hagan took J.S. on a college visit to Indianapolis. J.S.’s
mother learned that A.H. did not go on the trip and became suspicious about
the relationship between Hagan and J.S. J.S.’s mother then texted Hagan and
told him to stay away from J.S., and she refused to let J.S. go to Hagan’s house
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anymore. She met Hagan in a parking lot to get J.S.’s clothing and again told
Hagan to stay away from J.S. Someone then left another bag of clothing at
their door, and Hagan had hidden a cellphone for J.S. in the bag.
[5] On April 15, 2016, J.S.’s mother asked J.S. to go out to dinner with her. J.S.
said that she was tired and refused to go. J.S. used the cellphone provided by
Hagan to call Michelle Fritz, Hagan’s sister. She told Fritz that she had run
away, that she was in the woods, and that she needed a ride. However, Fritz
was unable to locate J.S. J.S. also called Hagan. Hagan contacted his friend,
Kevin Zickefoose, and asked him to pick up Hagan’s “niece” at Flexhaust.
Appellant’s App. Vol. II p. 44. Zickefoose picked up J.S. and took her to his
house, but his estranged wife was “pretty livid.” Id. at 46. Zickefoose then took
J.S to a hotel.
[6] When J.S.’s mother returned home, she realized that J.S. was gone and
reported to the police that J.S. was a runaway. Officers called Hagan, who said
that he was not with J.S. and that he did not know where she was. Hagan’s
sister, Michelle Fritz, flagged down an officer and gave officers the phone
number that J.S. was using. The officers performed an “emergency locate” on
the cell phone and learned that it was located near an Applebee’s restaurant. Id.
at 23. The officers could not locate J.S. at the Applebee’s and started checking
the hotels near that location. They located J.S. in a hotel room with
Zickefoose.
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[7] The State charged Hagan with Level 6 felony child seduction and Class A
misdemeanor contributing to the delinquency of a minor. After a bench trial,
Hagan was found guilty as charged. The trial court sentenced him to one year
for the Level 6 felony conviction and six months for the misdemeanor
conviction with the sentences to be served concurrently and suspended to
probation. Hagan now appeals.
Analysis
[8] Hagan argues that the evidence is insufficient to sustain his conviction. When
reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Id.
A. Child Seduction
[9] Indiana Code Section 35-42-4-7(m) governs the offense of child seduction and
provides:
If a person who:
(1) is at least eighteen (18) years of age; and
(2) is the:
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(A) guardian, adoptive parent, adoptive grandparent,
custodian, or stepparent of; or
(B) child care worker for;
a child at least sixteen (16) years of age but less than
eighteen (18) years of age;
engages with the child in sexual intercourse, other sexual conduct
(as defined in IC 35-31.5-2-221.5), or any fondling or touching
with the intent to arouse or satisfy the sexual desires of either the
child or the adult, the person commits child seduction.
The statute defines “custodian” as “any person who resides with a child and is
responsible for the child’s welfare.” I.C. § 35-42-4-7(e). Hagan’s only argument
is that the State failed to present evidence to demonstrate that he was J.S.’s
“custodian.” He does not dispute that the State presented sufficient evidence
regarding the other elements of the offense.
[10] In support of his argument, Hagan relies on State v. D.M.Z., 674 N.E.2d 585
(Ind. Ct. App. 1996), trans. denied. There, a child-care worker employed at a
youth shelter was charged with child seduction for seducing a sixteen-year-old
resident of the shelter. The defendant argued that she did not qualify as a
“custodian” for purposes of the child seduction statute.1 We agreed and held:
Here, the State’s evidence shows that D.M.Z. was a staff
employee at the Shelter and held the position of a “child-care
1
The child seduction statute was later amended to include a “child care worker.”
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worker.” She was responsible for supervision of the day-to-day
activities of the residents and would discuss with parents,
probation officers, and caseworkers a child’s specific behavioral
problems. D.M.Z. could decide whether a child was to
participate in a school recreational function or an extracurricular
activity based upon the child’s behavior, and she could suspend a
child’s privileges if necessary. As a child-care worker, D.M.Z.
was expected to handle medical emergencies and was permitted
to administer over-the-counter medications. Her duties also
required her to monitor a resident’s daily hygiene habits.
However, to be a “custodian” within the meaning of the child
seduction statute, an individual must exercise more than limited
or occasional supervision over a child. D.M.Z. was an hourly
employee at the very bottom of the organization chart and was
herself subject to the direction and control of a counselor. On
these facts, it cannot be said that she was responsible for the
child’s welfare.
We hold that to be a custodian under the statute, a person
“responsible for a child’s welfare,” a person must occupy a
position of trust and have the authority and responsibility to
make decisions concerning the child’s welfare, to act without
guidance or superior authority, as a parent would or in loco
parentis. D.M.Z. did not occupy such a position. Accordingly,
we hold that D.M.Z. was not C.P.’s custodian and that the trial
court properly dismissed the charges against her.
D.M.Z., 674 N.E.2d at 589-90 (internal citations and footnote omitted).
[11] We reached a different conclusion in Gellenbeck v. State, 918 N.E.2d 706 (Ind.
Ct. App. 2009). There, a sixteen-year-old child was living with her uncle and
aunt during the week. She stayed with her father every other weekend. The
uncle and aunt provided her with food, shelter, transportation, homework and
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school assistance and required her to obey their rules. They were authorized to
punish or discipline the child. However, her father continued providing
financial support, medical care, insurance, clothing, and school supplies, and
took her to appointments. The uncle began a sexual relationship with the child,
and he was convicted of child seduction. On appeal, he argued that he was not
the child’s custodian. We held:
We conclude that the record contains ample evidence to allow a
jury to conclude that Gellenbeck was a “custodian” under section
35-42-4-7. The record contains testimony that Gellenbeck and
his wife had responsibility for parental tasks; they provided V.S.
with food, shelter, and transportation; and they were authorized
to discipline V.S. if she failed to follow their rules. Gellenbeck
spent an “enormous amount of time” assisting V.S. with her
studies and homework and was authorized to communicate with
her school regarding educational issues. There is no evidence
that Father had any influence over Gellenbeck’s exercise of these
responsibilities. Moreover, V.S. regarded Gellenbeck as a father
figure.
Indeed, the reason V.S. moved in with Gellenbeck and Theresa
at all was so that they could help her to progress and thrive, as a
parent would be expected to. Before moving in, V.S.’s
relationships with her mother and Father had deteriorated, as
had her grades, problems Father felt helpless to correct. The
record indicates that Gellenbeck and Theresa enthusiastically
welcomed their new charge, being “more than willing to do
whatever it took to help out to try to straighten out V.S.’s life.”
Gellenbeck was clearly charged with far more than mere
supervision—it seems that he was charged with nothing less than
helping V.S. to turn her academic and personal lives around, a
responsibility he willingly accepted. So, while Father retained
some responsibility for V.S.’s welfare, this did not negate
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Gellenbeck’s responsibility, which was great indeed. Thus, we
conclude that the State presented sufficient evidence for a
reasonable jury to conclude that Gellenbeck was V.S.’s custodian
under the statute.
Gellenbeck, 918 N.E.2d at 711.
[12] Hagan argues that he “stood in a significantly lesser role than the Gellenbecks”
and that he was more like the defendant in D.M.Z. Appellant’s Br. p. 17. We
disagree and conclude that this case is more like Gellenbeck. The State was
required to demonstrate that Hagan resided with J.S. and that he was
responsible for her welfare. During late 2015 and early 2016, J.S. spent five
nights a week with the Hagans. During this time, they provided her with food,
toiletries, occasionally clothing, allowed her to drive their car, asked if she
could be placed on their health insurance, expected her to follow the rules of
their house, and built a bedroom for her in the basement. Hagan got J.S. a job
with his employer, added J.S. to their family YMCA membership, and opened
a bank account for her that required his approval for withdrawals. In March
2016, Hagan took J.S. on a college visit to Indianapolis. Although J.S.’s
mother still retained some control over J.S., the State presented sufficient
evidence that J.S. was residing with Hagan and that he was at least partially
responsible for her welfare. Hagan’s argument to the contrary is merely a
request that we reweigh the evidence, which we cannot do. The evidence is
sufficient to sustain Hagan’s conviction for child seduction.
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B. Contributing to the Delinquency of a Minor
[13] Indiana Code Section 35-46-1-8(a) governs the offense of contributing to the
delinquency of a minor and provides: “A person at least eighteen (18) years of
age who knowingly or intentionally encourages, aids, induces, or causes a child
to commit an act of delinquency (as defined by IC 31-37-1 or IC 31-37-2)
commits contributing to delinquency, a Class A misdemeanor . . . .” The State
alleged that the delinquent act J.S. committed was being a runaway. Indiana
Code Section 31-37-2-2 provides: “A child commits a delinquent act if, before
becoming eighteen (18) years of age, the child leaves home or a specific location
previously designated by the child’s parent, guardian, or custodian: (1) without
reasonable cause; and (2) without permission of the parent, guardian, or
custodian, who requests the child’s return.”
[14] Hagan argues that, after J.S. ran away, he urged her to return to her mother and
that he did nothing to encourage, induce, or cause her to leave home.
However, the State presented evidence that, after beginning a romantic
relationship with J.S., Hagan encouraged her to “stand up to” her mother, told
her that she had “rights and that [she] should use them,” and said that she
should become emancipated from her mother. Tr. Vol. II pp. 122-23. He also
secretly gave J.S. a cell phone. After J.S. left her home, she called Hagan, who
gave her the code to get into his employer’s business and called his friend to
pick her up. When officers contacted Hagan, he denied knowing where J.S.
was located. This evidence is sufficient to demonstrate that Hagan knowingly
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or intentionally aided J.S. in her attempt to run away. Hagan’s argument is
merely a request that we reweigh the evidence, which we cannot do.
Conclusion
[15] The evidence is sufficient to sustain Hagan’s convictions for Level 6 felony
child seduction and Class A misdemeanor contributing to the delinquency of a
minor. We affirm.
[16] Affirmed.
Najam, J., and Mathias, J., concur.
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