Jeremy Shrum v. State of Indiana (mem. dec.), 49A05-1604-CR-829

Victim S.S., born premature with cerebral palsy and developmental delays, was nine at the time of the offense.
While staying at defendant Jeremy Shrum’s home during parenting time, S.S. awoke to Shrum on top of her; her pajama pants and pull-up were removed.
Shrum positioned S.S., exposed his penis, instructed her to "grab his wiener" and "stick it in [her] pee hole," and attempted penetration; S.S. felt the penis touch her external genitalia and described pain and wetness.
A sexual assault nurse exam produced no observable genital injury, but S.S. described the abuse to the nurse and replicated the position used by Shrum.
The State charged four counts (two Level 1 child molesting counts, one Level 4 child molesting, one Level 5 battery); jury convicted on all counts, but trial court vacated Counts II and III on double jeopardy grounds and sentenced Shrum to 35 years with 5 years suspended on Count I.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence to support Level 1 child molesting (sexual intercourse requiring penetration)	Evidence (victim testimony about position, instruction, contact, wetness, pain, and statements to nurse) supports an inference of at least slight penetration of external genitalia.	No proven penetration: victim said "it didn’t go in," no medical/physical evidence of penetration, so cannot satisfy statutory definition of sexual intercourse.	Affirmed: viewing all evidence and reasonable inferences in favor of the verdict, jury could infer at least slight penetration of external genitalia; proof sufficient for Level 1.
Whether victim's age was an improper sentencing aggravator	The State argued aggravators (victim’s disabilities and defendant’s position of trust); trial court referenced victim’s age when discussing harm but expressly avoided using age as aggravator.	Shrum argued age was used as aggravator despite being an element of the offense, which would be improper.	Affirmed: trial court explicitly refused to use age as an aggravator and instead relied on victim’s disabilities and defendant’s position of trust as aggravators; no abuse of discretion.

Drane v. State, 867 N.E.2d 144 (Ind. 2007) (standard of review for sufficiency of the evidence)
Thompson v. State, 674 N.E.2d 1307 (Ind. 1996) (statutory definition: "sexual intercourse" includes any penetration of female sex organ by male sex organ)
Spurlock v. State, 675 N.E.2d 312 (Ind. 1996) (slightest penetration sufficient; conviction reversed where victim explicitly disclaimed knowing penetration)
Scott v. State, 771 N.E.2d 718 (Ind. Ct. App. 2002) (external genitalia and urination anatomy may constitute "female sex organ" for penetration analysis)
Adcock v. State, 22 N.E.3d 720 (Ind. Ct. App. 2014) (insufficient penetration evidence where victim capable of describing penetration but did not)
Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (sentencing review principles)
Gomillia v. State, 13 N.E.3d 846 (Ind. 2014) (discussing improper aggravators that duplicate elements of the offense)
Louallen v. State, 778 N.E.2d 794 (Ind. 2002) (cited for limitation/disapproval context)