Hugo Hernandez-Diaz v. State of Indiana (mem. dec.), 49A05-1511-CR-1882

Victim M.S., age 9 in summer 2014, lived with her mother E.M. and called defendant Hugo Hernandez-Diaz (E.M.’s then‑boyfriend) "Dad."
Between June and later in 2014, M.S. testified Hernandez‑Diaz undressed her, undressed himself, and attempted to insert his penis into her vagina and anus; she described pain and told him to stop.
M.S. disclosed the abuse to her mother on December 31, 2014; Hernandez‑Diaz gave a minimizing explanation to E.M.
The State charged multiple counts including Count I: attempted child molesting (attempted sexual intercourse with a child under 14) as a Class A felony; Count III: child molesting (other sexual conduct) as a Level 1 felony; Count VII: child solicitation as a Class D felony.
After a bench trial defendant was convicted on Counts I, III, and VII; the court sentenced him to concurrent terms and labeled him a “credit restricted felon.”
On appeal Hernandez‑Diaz challenged (1) sufficiency of the evidence for Count I and (2) the trial court’s designation of him as a credit restricted felon.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence was sufficient to support conviction for attempted child molesting (Count I, Class A)	State: M.S.’s testimony that defendant touched and tried to insert his penis into her vagina was credible and alone sufficient; actions (undressing, positioning, contact) constituted a substantial step	Hernandez‑Diaz: testimony was inconsistent and described contact only with buttocks; State failed to prove intent or a substantial step toward vaginal penetration	Affirmed — a reasonable factfinder could infer intent and a substantial step toward penetration from M.S.’s testimony and defendant’s conduct
Whether defendant is a credit restricted felon	State: defendant is a credit restricted felon at least based on Count III (uncontested Level 1 child molesting conviction)	Hernandez‑Diaz: the statute does not apply to convictions for attempted child molesting; trial court’s records indicate credit restricted status tied to the attempted‑molesting count and should be corrected	Remanded for clarification: attempted child molesting (Count I) does not qualify, but defendant is a credit‑restricted felon based on Count III (child molesting involving other sexual conduct)

Drane v. State, 867 N.E.2d 144 (Ind. 2007) (standard for sufficiency review; do not reweigh evidence)
Jenkins v. State, 726 N.E.2d 268 (Ind. 2000) (sufficiency standard: affirm unless no reasonable fact‑finder could convict)
Louallen v. State, 778 N.E.2d 794 (Ind. 2002) (culpability requirement for child molesting is knowingly or intentionally)
Boling v. State, 982 N.E.2d 1055 (Ind. Ct. App. 2013) (holding attempted child molesting does not by itself trigger credit‑restricted‑felon status under Ind. Code § 35‑31.5‑2‑72(1))
Hughes v. State, 600 N.E.2d 130 (Ind. Ct. App. 1992) (definition and proof of a substantial step for attempt)
C.L.Y. v. State, 816 N.E.2d 894 (Ind. Ct. App. 2004) (intent for child molesting can be inferred from conduct)