FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

SEAN P. HILGENDORF     STEVE CARTER
South Bend, Indiana     Attorney General of Indiana

     DANIEL JASON KOPP
    Deputy Attorney General
    Indianapolis, Indiana

     IN THE COURT OF APPEALS OF INDIANA

C.L.Y.,                     )
                                 )
Appellant-Respondent,            )
                                 )
vs.                              )    No.  71A03-0311-JV-460
                                 )               
STATE OF INDIANA,                )
                                 )
    Appellee-Petitioner.         )

                             

                             

    APPEAL FROM THE ST. JOSEPH PROBATE COURT
    The Honorable Harold E. Brueseke, Magistrate

    October 27, 2004

    OPINION - FOR PUBLICATION

VAIDIK, Judge

    Case Summary    
     C.L.Y. appeals his adjudication as a delinquent child for committing acts that would constitute Child Molesting as a Class C felony and Attempted Child Molesting as a Class B felony if committed by an adult. See footnote We find that it was not an abuse of discretion for the trial court to order C.L.Y. to remain in detention pending his fact-finding hearing and to deny C.L.Y.’s motion for continuance. We affirm because even assuming that the photographic array from which the victim made an out-of-court identification is impermissibly suggestive, the evidence is nonetheless sufficient to sustain C.L.Y.’s adjudication as a delinquent child.

Ind. Code § 31-37-6-6. At the hearing on May 30, the Probation Department recommended continued detention of C.L.Y. for the protection of the community. The trial court agreed—“given the nature of the charges, the age of the victim[,]” Appellant’s App. p. 94—and ordered C.L.Y. detained.
C.L.Y. invites comparison to C.T.S. v. State, in which a different panel of this Court found that the trial court abused its discretion when it detained a juvenile for over four months pending his trial. See footnote C.T.S., 781 N.E.2d at 1200. In C.T.S., there was “ample evidence in the record demonstrating that [the juvenile]’s parents were willing to go to great lengths so that C.T.S. could be released to their care while the proceedings were pending.” Id. We recognize that C.L.Y’s mother was willing to move back home to provide supervision for C.L.Y and that his aunt and uncle also offered to help. But the crucial distinction between C.T.S. and the case before us is that in C.T.S., the juvenile was charged with two offenses that would be Class A misdemeanors if committed by an adult. See id. Hence, C.T.S. was detained for over four months on two comparatively minor charges; C.L.Y., in contrast, was detained for fifty-nine days excluding weekends and holidays after being charged with an extremely serious offense. Given the circumstances surrounding the offense, we cannot say the trial court abused its discretion in finding that C.L.Y.’s detention was essential to protect the community.
    Next, C.L.Y. asserts that the trial court erred by failing to comply with the statutory mandate to release C.L.Y. from detention since a fact-finding hearing was not commenced within twenty days from May 19, the date the Petition Alleging Delinquency was filed. In support of this argument, C.L.Y. relies on several Juvenile Code statutes, including Indiana Code § 31-37-11-2, which provides in relevant part:
If:

(1) a child is in detention; and
(2) a petition has been filed;

a fact-finding hearing or a waiver hearing must be commenced not later than twenty (20) days, excluding Saturdays, Sundays, and legal holidays, after the petition is filed.

And Indiana Code § 31-37-11-6(1) provides that the twenty-day detention limit set forth in section 2 of this chapter shall be computed excluding delays resulting from “continuances granted on the child’s motion.” Indiana Code § 31-37-11-10 provides in relevant part that “if [] a continuance is granted on a child’s motion[,] a time period is extended by the amount of the resulting delay.” Finally, Indiana Code § 31-37-11-7 states that if a child is in detention and the twenty-day time limit imposed by Indiana Code § 31-37-11-2 is not followed, “the child shall be released on the child’s own recognizance or to the child’s parents . . . .”
    At the initial hearing on June 10, C.L.Y. informed the trial court that there were several pieces of physical evidence being tested that the State had not yet provided to C.L.Y. through discovery. C.L.Y. argued that although he could not proceed to trial without the evidence or the test results, he was not moving for a continuance; instead, he was asking the trial court to recognize that it would be “fundamentally unfair” for C.L.Y. to waive his right to a speedy trial just because the State had failed to provide potentially exculpatory evidence. Appellant’s App. p. 28. Essentially, C.L.Y. urged the trial court to continue the trial “because discovery ha[d] not yet been complied with[,]” but to find the delay not chargeable to C.L.Y. Id. at 24-25.
The State responded that the evidence was at the Indiana State Police Laboratory being processed, and the State had contacted the lab and learned that “[i]t would be virtually impossible for [the analyst] to have the results back [in time for a June 12 trial] . . . . [The analyst said s]he could get to it in the next two weeks and it would be ready for the Court probably two weeks after that, so a month and a half almost.” Id. at 27. On June 12, the State informed the trial court that it was ready to proceed to trial without the evidence and that it had provided C.L.Y. with all of the evidence the State intended to use at trial. Further, the State argued that C.L.Y. had not shown that the evidence would be exculpatory. The trial court determined that C.L.Y.’s evidence request would be chargeable to C.L.Y. and that he would remain in detention until trial.
The question presented—whether the delay caused by C.L.Y.’s discovery request should be chargeable to C.L.Y. for purposes of the twenty-day detention limit of the Juvenile Code—has been considered by other panels of this Court in the non-juvenile context of Criminal Rule 4. See footnote See, e.g., Paul v. State, 799 N.E.2d 1194, 1199 (Ind. Ct. App. 2003) (finding that denial of the defendant’s motion for discharge pursuant to Criminal Rule 4(B)(1) was not erroneous because the State “was not derelict in its duties and provided discovery expeditiously under the circumstances.”), reh’g denied; Hillenburg v. State, 777 N.E.2d 99, 104-105 (Ind. Ct. App. 2002) (finding that the delays caused by the defendant’s multiple evidence-related requests for continuances were chargeable to the defendant because “it is not the motive behind defendant’s actions, but the effect of his actions, that determines whether the delay is attributable to him.”), trans. denied; Marshall v. State, 759 N.E.2d 665, 670 (Ind. Ct. App. 2001) (holding that the defendant’s evidence-related motions for continuance were not chargeable to him because a defendant should not be forced to choose between waiving his rights to a speedy trial or proceeding to trial unprepared); Crosby v. State, 597 N.E.2d 984, 988-89 (Ind. Ct. App. 1992) (finding that because the delay in the defendant’s trial was due to the State’s negligence in complying with discovery and late filing and amendment of charges, the trial court erred in failing to discharge the defendant pursuant to Criminal Rule 4(B)(1); Biggs v. State, 546 N.E.2d 1272, 1274-75 (Ind. Ct. App. 1989) (finding that the trial court erred in denying the defendant’s motion for discharge pursuant to Criminal Rule 4(C) because delays were caused by the State’s failure to comply with discovery requests). As a general rule, the determination of whether a delay caused by a defendant’s evidence request is chargeable to the defendant for speedy trial purposes turns on whether the State was negligent or less than diligent in complying with the defendant’s request. See Paul, 799 N.E.2d at 1198 (“Marshall, Crosby, and Biggs all involved situations where the State was found to have either violated discovery orders or been negligent in providing discovery.”).
Here, there is no indication that the State was negligent in complying with C.L.Y.’s discovery request. On the contrary, at the time of C.L.Y.’s request, the State had provided C.L.Y. with all of the evidence it intended to use at trial and was powerless to accelerate the testing of the physical evidence C.L.Y. was requesting. See footnote We must conclude that when a delay is caused by a detained juvenile’s discovery request for evidence that the State—despite due diligence—is powerless to provide, that delay must be chargeable to the juvenile for purposes of the twenty-day rule of Indiana Code § 31-37-11-2. Such is the case here. Hence, we cannot say the trial court erred in finding that C.L.Y.’s discovery request was chargeable to C.L.Y. and thus ordering C.L.Y. to remain detained in excess of twenty days without a fact-finding hearing.

(1) that the evidence is material;
(2) that due diligence has been used to obtain the evidence; and
(3) the location of the evidence.

The standard of review for a trial court’s ruling on a continuance not required by statute is abuse of discretion. Flake v. State, 767 N.E.2d 1004, 1008 (Ind. Ct. App. 2002). An abuse of discretion occurs when the ruling is against the logic and effect of facts and circumstances before the court or where the record demonstrates prejudice from denial of the continuance. Id. We will not disturb the trial court’s decision absent a clear demonstration that the trial court abused its discretion. Id.
Here, C.L.Y.’s counsel requested a continuance because although he had received the State’s discovery with regard to DNA testing on July 28, 2003—fifteen days before the trial date—he had been on vacation from July 31 to August 11. Thus, he had only four days to review the test results; moreover, C.L.Y. decided the night before trial that he would like to subject the physical evidence to further testing. C.L.Y. concedes that he did not comply with the statutory requirement of filing an affidavit not later than five days before the trial date. Instead, he orally moved for a continuance on the day of trial and then failed to follow up with a supporting memorandum as requested by the trial court. Thus, we will give the trial court’s decision substantial deference.
The trial court based its denial of C.L.Y.’s motion on Indiana Code § 35-36-7-3, which states:
This section applies to criminal actions for felonies under I.C. 35-42 . . .
and for attempts of those felonies . . . .

If a motion is made to postpone a trial or other court proceeding that involves an offense listed in subsection (a), the court shall consider whether a postponement will have an adverse impact upon a child who is less than ten (10) years of age and who:

(1) is the alleged victim of an offense listed in subsection (a); or
(2) will be a witness in the trial.

Here, eight-year-old A.B. was both the victim and a witness in the trial. Given the trauma A.B. had already suffered, it was reasonable for the court to find that postponement would have an adverse impact upon her. Indeed, we find the trial court’s decision—to proceed with the trial, with the proviso that the trial could be continued if the court was persuaded there was a need to do so—to be a remarkably fair solution. We cannot say the trial court abused its discretion in determining that further delay would have an adverse impact upon her.

Ind. Code § 35-42-4-3. The trial court found that the second charge—Child Molesting as a Class C felony—was true; as to the first charge, the trial court found that the evidence supported only Attempted Child Molesting, a Class B felony. “I don’t find that penetration occurred. I don’t think there was testimony to justify that and I will find an attempt.” Tr. p. 772. In order to adjudicate C.L.Y. of Attempted Child Molesting as a Class B felony, the State was required to prove beyond a reasonable doubt that C.L.Y. was acting with the culpability required for commission of Child Molesting as a Class B felony and that he engaged in conduct that constitutes a substantial step toward commission of the crime. See footnote Our supreme court has found that the culpability requirement of the child molesting statute is “knowingly or intentionally.” See Louallen v. State, 778 N.E.2d 794, 798 (Ind. 2002) (concluding that it was not error to instruct the jury that defendant could be convicted pursuant to Indiana Code § 35-42-4-3(b) for “knowingly or intentionally” molesting a child); Cardwell v. State, 516 N.E.2d 1083, 1086 (Ind. Ct. App. 1987) (“Regardless of the fact that there is no specific mention of any criminal intent or mens rea in the relevant portion of the child molesting statute, mens rea is an element of the crime of child molesting.”), reh’g denied, trans. denied. A person engages in conduct “knowingly” if, when he engages in the conduct, he is aware of a high probability that he is doing so. See Ind. Code § 35-41-2-2(b). A person engages in conduct “intentionally” if, when he engages in the conduct, it is his conscious objective to do so. See Ind. Code § 35-41-2-2(a). The intent element of child molesting may be established by circumstantial evidence and inferred from the actor’s conduct and the natural and usual sequence to which such conduct usually points. Cruz Angeles v. State, 751 N.E.2d 790, 797 (Ind. Ct. App. 2001), trans. denied.
C.L.Y. contends that there is no evidence to prove beyond a reasonable doubt that he knowingly or intentionally attempted to perform sexual intercourse or deviate sexual conduct and that he engaged in conduct that constitutes a substantial step toward commission of the crime. We disagree. The evidence shows that C.L.Y. and another boy, alleged to be one of his older brothers, pulled A.B. into a van, whereupon C.L.Y.—whom A.B. refers to as “Michael”—removed her clothes and “humped her” by rubbing his penis on her vagina until he ejaculated. Although penetration may not have occurred, the circumstantial evidence and C.L.Y.’s conduct points to the inference that he was attempting to penetrate A.B. Moreover, by removing A.B.’s clothes and “humping” her, C.L.Y. clearly committed a substantial step toward performing sexual intercourse with A.B. Thus, we find that the evidence is sufficient to prove beyond a reasonable doubt both the culpability and substantial step requirements of Attempted Child Molesting as a Class B felony.
Affirmed.
CRONE, J., concurs.
RILEY, J., concurs in and dissents in part with separate opinion.

RILEY, Judge, concurring in part and dissenting in part.    
I concur in part and dissent in part. I concur with the majority opinion as to Issue I and Issue II. I respectfully dissent to Issue III.
In the companion opinion of J.Y. v. State, I agree with the majority opinion that reached the conclusion there was insufficient evidence of identity that J.Y. sexually assaulted A.B. I reach the same conclusion as to C.L.Y. There is no corroborating evidence of probative value regarding the identity of C.L.Y.
It is a fact that the DNA profile of C.L.Y., to a reasonable degree of certainty, showed that the boy she called “Michael” ejaculated “on the couch” inside the van. This evidence does not nor should it convict anyone beyond a reasonable doubt of sexual assault.
It is my opinion that the photo array was tainted and thus there was insufficient evidence as to identity. The only other evidence presented was physical evidence that C.L.Y.’s DNA profile matched a whitish stain on the van’s upholstery to a reasonable degree of scientific certainly. I would reverse the juvenile court’s adjudication of C.L.Y. as a delinquent child.



    

Of particular significance is (1) the difference in time requirements between the “speedy trial provision” of the Juvenile Code—twenty days—and Criminal Rule 4, which provides that the defendant who moves for a speedy trial must be tried within seventy days, and no defendant shall remain in jail without a trial for an aggregate of six months, and (2) the unavailable evidence exception of 4(D), which has no counterpart in the Juvenile Code.