Timothy M. Roberts, Jr. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Apr 21 2015, 8:21 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark I. Cox Gregory F. Zoeller
The Mark I. Cox Law Office, LLC Attorney General of Indiana
Richmond, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy M. Roberts, Jr., April 21, 2015
Appellant-Defendant, Court of Appeals Case No.
89A05-1410-CR-500
v. Appeal from the Wayne Circuit
Court.
The Honorable David A. Kolger,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 89C01-1302-FA-5
Darden, Senior Judge
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Statement of the Case
[1] Timothy M. Roberts, Jr., appeals his conviction of child molesting, a Class A
1
felony. We affirm.
Issue
[2] Whether there is sufficient evidence to sustain Roberts’s conviction.
Facts and Procedural History
[3] Laura Rubino gave birth to D.F. on October 25, 2000. Rubino subsequently
began a relationship with Roberts, and they had two children together. After
the relationship ended, Rubino and her three children moved to Richmond,
Indiana.
[4] In March 2009, Roberts moved to Richmond and cared for the children while
Rubino was at work. One evening, Roberts had D.F. leave her bedroom and go
to the living room. He removed her clothes and rubbed his penis against her
vagina. Next, Roberts had D.F. put her mouth on his penis. He ejaculated and
told her to swallow it instead of spitting it out. D.F. asked Roberts what he was
doing to her, and he told her “he couldn’t tell me because I’d tell someone.”
Tr. p. 217. Roberts had D.F. put her mouth on his penis at least “ten, fifteen”
times in the months following the first incident. Id. at 220.
1
Ind. Code § 35-42-4-3 (2007).
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[5] D.F. later disclosed to Rubino’s boyfriend what Roberts had done to her.
When D.F. was later in foster care, she also told her foster mother about
Roberts’s molestations.
[6] The State charged Roberts with child molesting as a Class A felony. A jury
determined that Roberts was guilty as charged. The trial court sentenced
Roberts, and this appeal followed.
Discussion and Decision
[7] Roberts claims the State failed to present sufficient evidence to sustain his
conviction beyond a reasonable doubt. In considering challenges to the
sufficiency of the evidence, we neither reweigh the evidence nor judge witness
credibility. Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind. 2010). Instead, we
consider only the evidence supporting the judgment and any reasonable
inferences drawn from the evidence. Tin Thang v. State, 10 N.E.3d 1256, 1258
(Ind. 2014). We affirm a conviction unless no reasonable trier of fact could find
every element proved beyond a reasonable doubt. Blount v. State, 22 N.E.3d
559, 565 (Ind. 2014).
[8] In order to convict Roberts of child molesting as a Class A felony, the State was
required to prove beyond a reasonable doubt that Roberts: (1) a person of at
least twenty-one years of age (2) performed or submitted to sexual intercourse
or deviate sexual conduct (3) with a child under fourteen years of age. Ind.
Code § 35-42-4-3. During the period of time relevant to this case, “deviate
sexual conduct” was defined as “an act involving . . . a sex organ of one person
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and the mouth or anus of another person . . . or the penetration of the sex organ
or anus of a person by an object.” Ind. Code § 35-41-1-9 (repealed 2012).
[9] There is no dispute that Roberts was older than twenty-one years of age or that
D.F. was under fourteen years of age when the acts at issue occurred. Further,
D.F. testified specifically and in in detail about the first time that Roberts forced
her to put her mouth on his penis, and she further testified that it happened
again at least ten to fifteen other times during the time period at issue here.
This is sufficient evidence that Roberts submitted to deviate sexual conduct
with D.F. See Ware v. State, 816 N.E.2d 1167, 1174 (Ind. Ct. App. 2004)
(victim’s testimony that defendant performed deviate sexual conduct on
multiple occasions during time period sufficient to sustain convictions).
[10] Roberts asserts that there is no physical evidence, but considering the manner in
which the crimes were committed and the totality of the facts and
circumstances surrounding the incidents, it is unlikely that there would ever be
any physical evidence available. Roberts also claims that D.F.’s testimony was
inconsistent. However, a molested child’s uncorroborated testimony is
sufficient to sustain a conviction. Carter v. State, 754 N.E.2d 877, 880 (Ind.
2001). Furthermore, any inconsistencies were a matter for the jury to weigh in
assessing D.F.’s credibility.
Conclusion
[11] For the reasons stated above, we affirm the judgment of the trial court.
[12] Affirmed.
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Najam, J., and Mathias, J., concur.
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