Timothy Dale Alford v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    FILED
    regarded as precedent or cited before any                            Jan 11 2019, 10:01 am
    court except for the purpose of establishing                               CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                   Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Theodore J. Minch                                        Curtis T. Hill, Jr.
    Sovich Minch, LLP                                        Attorney General of Indiana
    Indianapolis, Indiana
    Chandra K. Hein
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Timothy Dale Alford,                                     January 11, 2019
    Appellant-Defendant,                                     Court of Appeals Case No.
    18A-CR-1152
    v.                                               Appeal from the Shelby Superior
    Court
    State of Indiana,                                        The Honorable R. Kent Apsley,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    73D01-1703-F1-3
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019               Page 1 of 14
    Case Summary and Issues
    [1]   Following a jury trial, Timothy Alford was convicted of child molesting, a
    Level 1 felony, and admitted to being an habitual offender. The trial court
    sentenced him to thirty-five years for the conviction, enhanced by an additional
    ten years for the habitual offender finding. Alford appeals, raising two issues
    for our review: 1) whether the evidence was sufficient to support his conviction
    for child molesting and 2) whether the forty-five year sentence is inappropriate
    in light of the nature of his offense and his character. Concluding there was
    sufficient evidence to support his conviction and that his sentence is not
    inappropriate, we affirm.
    Facts and Procedural History
    [2]   S.M. was born on May 11, 2001. His parents, Jeremy and Stacy, were divorced
    when he was very young, and Stacy had primary physical custody of S.M., with
    Jeremy having parenting time every other weekend. Jeremy remarried and he
    and his current wife, Sara, have three other children. 1 In 2012, after Jeremy and
    Sara had a baby, Jeremy and S.M. lost contact.
    [3]   In 2014, while S.M. continued to be in her physical custody, Stacy was running
    a daycare out of the first floor of her home on West Broadway in Shelbyville.
    Beginning in October 2014, Alford assisted Stacy with the daycare. Stacy knew
    1
    Two of the children are Sara’s from prior to her marriage to Jeremy; they have one child together.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019                    Page 2 of 14
    Alford from having dated his brother sometime earlier. S.M. was also
    acquainted with Alford and “thought he was one of my friends.” Transcript,
    Volume 1 at 151. In the fall of 2014, S.M. was thirteen years old and a
    freshman in high school. He liked video games and would usually come home
    from school and go straight to his room on the second floor to play videogames.
    [4]   Sometime that fall, Alford entered S.M.’s room and laid on S.M.’s bed behind
    him while S.M. was laying on his right side playing a game. After a while,
    Alford got up and left the room. On a second occasion, Alford again entered
    S.M.’s room and laid on S.M.’s bed behind him while S.M. was watching
    YouTube. This time, however, Alford reached around with his hand and began
    rubbing S.M.’s penis over his shorts until S.M. got an erection. Alford then left
    the room. On another day “[n]ot very much later,” 
    id. at 152,
    Alford again
    entered S.M.’s bedroom while S.M. was playing videogames and laid on S.M.’s
    bed behind S.M. He reached around with his hand and began stroking S.M.’s
    penis until S.M. became erect. Then he pulled down S.M.’s shorts and put his
    mouth on S.M.’s penis until S.M. ejaculated. On a fourth occasion, S.M. was
    asleep in his bed when he woke up to find Alford had pulled his shorts down
    and had his mouth on S.M.’s penis. After S.M. ejaculated, Alford left the
    room. Each time Alford entered S.M.’s room, S.M. “thought if I ignored him
    he’d leave me alone.” 
    Id. at 158.
    S.M. was “[c]onfused” and “didn’t
    understand how [he] was supposed to feel or . . . why [Alford] was doing it.”
    
    Id. at 164.
    S.M. did not tell his mother about these incidents because he “didn’t
    really know how to tell her [and] didn’t trust her[.]” 
    Id. at 163.
    In January
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 3 of 14
    2015, Stacy, with Alford’s help, moved the daycare to a new location. S.M.
    testified Alford had touched him inappropriately exclusively at the Broadway
    house.
    [5]   On S.M.’s fourteenth birthday, in May 2015, Jeremy reached out to S.M. and
    they began a regular parenting time schedule again. After Stacy’s boyfriend
    moved into her house in late 2016, S.M. asked to live with Jeremy and Sara
    because he thought the boyfriend was violent. Jeremy filed a petition to modify
    custody in late October 2016 and when Stacy was served with the petition, she
    told S.M. to pack his things. From that point on, S.M. lived with Jeremy and
    Sara. Custody was officially modified by agreement on April 7, 2017.
    [6]   Once S.M. moved into their home permanently, Sara observed behaviors that
    caused her to be concerned about him. In November 2016, after S.M. had been
    with Jeremy and Sara full time for approximately three weeks, S.M. told Sara
    he wanted to be put on antidepressants. Sara questioned him, trying to find out
    what was causing S.M. to be depressed. S.M. eventually disclosed the abuse by
    Alford. Sara immediately called Jeremy and together, they contacted the
    Indianapolis Metropolitan Police Department (“IMPD”). IMPD referred them
    to the Shelbyville Police Department because the events occurred there.
    Shelbyville Police took a report on November 17, 2016, of possible child
    molesting and arranged for S.M. to be interviewed by specially trained
    personnel at the Child Advocacy Center in December 2016. Detective Brian
    Roberts interviewed Alford thereafter. Alford stated that he worked for Stacy
    beginning in October 2014 at her daycare on West Broadway, that he was alone
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 4 of 14
    with S.M. frequently, and that he would sometimes go to S.M.’s room and lay
    on his bed with him while he was playing videogames. Alford denied any
    sexual contact.
    [7]   In March 2017, the State charged Alford with child molesting, a Level 1 felony;
    child solicitation, a Level 5 felony; and alleged he was an habitual offender. A
    jury found Alford guilty of both child molesting and child solicitation.
    Thereafter, Alford admitted that he was an habitual offender. As part of that
    admission, Alford and the State agreed that any habitual offender enhancement
    would be capped at fifteen years.
    [8]   Prior to sentencing, Alford filed a motion for judgment on the evidence on the
    child solicitation charge, and the trial court and the State both agreed that there
    was no evidence elicited at trial to support that charge. The trial court therefore
    granted the motion and Alford was sentenced only for child molesting. The
    trial court found as mitigating circumstances that incarceration would be a
    hardship for Alford because he had a number of medical conditions and that he
    pleaded guilty to the habitual offender enhancement, eliminating the need to
    conduct a second phase of his trial and accepting responsibility for that charge.
    The trial court found as aggravating circumstances Alford’s extensive criminal
    history, his lack of success while on probation, and that he violated a condition
    of his release in this case by appearing in court while in the possession of
    contraband and controlled substances, incurring new charges. The trial court
    specifically rejected the State’s allegation that Alford was in a position of care,
    custody, or control with respect to S.M. Finding that Alford was not “the worst
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 5 of 14
    of the worst of the worst” but that there were “significant aggravators,” the trial
    court sentenced Alford to thirty-five years for the child molesting conviction,
    enhanced by ten years for the habitual offender finding. Tr., Vol. 2 at 182.
    Alford now appeals his conviction and sentence.
    Discussion and Decision
    I. Sufficiency of the Evidence
    A. Standard of Review
    [9]    In reviewing the sufficiency of the evidence to support a conviction, we neither
    reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 
    27 N.E.3d 1065
    , 1066 (Ind. 2015). We consider only the evidence supporting the
    judgment and any reasonable inferences drawn therefrom, 
    id., and we
    will
    affirm the conviction “if there is substantial evidence of probative value
    supporting each element of the crime from which a reasonable trier of fact
    could have found the defendant guilty beyond a reasonable doubt.” Walker v.
    State, 
    998 N.E.2d 724
    , 726 (Ind. 2013) (citation omitted).
    B. Evidence of Child Molesting
    [10]   Alford was convicted of child molesting as Level 1 felony, which required proof
    beyond a reasonable doubt that Alford, being at least twenty-one years of age,2
    2
    There is no dispute that Alford was older than twenty-one in the fall of 2014.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019     Page 6 of 14
    knowingly or intentionally performed other sexual conduct with S.M., a child
    under fourteen years of age. Ind. Code § 35-42-4-3(a)(1). “Other sexual
    conduct” includes an act involving a sex organ of one person and the mouth of
    another person. Ind. Code § 35-31.5-2-221.5(1).
    [11]   Alford first contends the State failed to prove that S.M. was thirteen at the time
    of the offense because “S.M. seemed unsure of when and how old he was in his
    testimony regarding when he was molested[.]” Opening Brief of Appellant at
    15. Alford focuses on the following exchange during S.M.’s direct
    examination:
    Q: And we talked a lot about that Fall of 2014 time period. Is
    that the time that we’re talking about or is it a different time
    period that we’re talking about for when these touching [sic]
    would have happened?
    A: Just that time period.
    Q: When you would have been what age?
    A: When I would have been 14.
    Q: Okay, well . . .
    A: Thirteen (13), yeah.
    Q: So you were born in 2001, right?
    A: Yes.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 7 of 14
    Q: May of 2001, so you would have turned 14 then May of 2000
    ...
    A: ’15.
    Q: What year?
    A: 2015.
    Q: ’15, okay. So then Fall of 2014.
    A: I would have been 13.
    Tr., Vol. 1 at 145-46. It is true that S.M. misspoke on that one occasion.
    However, on all other occasions, S.M. consistently stated that the molestation
    occurred in 2014, in the Broadway house, when he was thirteen years old.
    Despite Alford’s contention that S.M. only corrected himself upon leading
    questioning by the State, it appears S.M. actually corrected himself. This
    timeline also fits with his father and step-mother’s testimonies about when they
    resumed contact with him and when he came to live with them as well as with
    Alford’s testimony about when he worked for Stacy at the Broadway house.
    There was sufficient evidence beyond a reasonable doubt that S.M. was thirteen
    when the molestation occurred.
    [12]   Alford also contends that S.M.’s testimony is inherently unreliable because
    there were no eyewitnesses, no forensic evidence, no corroborating evidence, it
    occurred two years before it was reported, and S.M. had a motive to fabricate a
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 8 of 14
    reason for his custody to be changed to his father. Alford acknowledges that
    the uncorroborated testimony of the victim alone is sufficient to sustain a
    conviction for child molesting. See Bailey v. State, 
    979 N.E.2d 133
    , 135 (Ind.
    2012). He argues, however, that S.M.’s testimony is incredibly dubious.
    [13]   The incredible dubiosity rule allows the reviewing court to impinge upon a fact
    finder’s responsibility to judge the credibility of the witnesses when confronted
    with evidence that is “so unbelievable, incredible, or improbable that no
    reasonable person could ever reach a guilty verdict based upon that evidence
    alone.” Moore v. State, 
    27 N.E.3d 749
    , 751 (Ind. 2015). The rule is applied in
    limited circumstances, namely where there is “1) a sole testifying witness; 2)
    testimony that is inherently contradictory, equivocal, or the result of coercion;
    and 3) a complete absence of circumstantial evidence.” 
    Id. at 756.
    Application
    of the incredible dubiosity rule is “rare and the standard to be applied is
    whether the testimony is so incredibly dubious or inherently improbable that no
    reasonable person could believe it.” Love v. State, 
    761 N.E.2d 806
    , 810 (Ind.
    2002). “[W]hile incredible dubiosity provides a standard that is ‘not impossible’
    to meet, it is a ‘difficult standard to meet, [and] one that requires great
    ambiguity and inconsistency in the evidence.’” 
    Moore, 27 N.E.3d at 756
    (quoting Edwards v. State, 
    753 N.E.2d 618
    , 622 (Ind. 2001)).
    [14]   In applying the Moore factors to this case, we conclude the incredible dubiosity
    rule is inapplicable. S.M.’s testimony is not inherently contradictory or
    equivocal. That a child waited two years until he was in a position to tell a
    person he trusted about an upsetting event is not so improbable that no
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 9 of 14
    reasonable person could believe the allegations. If S.M. was so upset with his
    mother that he would fabricate allegations so that his mother would lose
    custody of him, it seems unlikely he would accuse a peripheral person in the
    household of child molesting rather than make direct allegations against his
    mother or her boyfriend. Moreover, there was circumstantial evidence
    supporting Alford’s guilt. Alford himself testified that he worked in the home
    during the timeframe S.M. alleges he was molested, that he was alone with
    S.M. frequently, and that he would lay on S.M.’s bed with him while S.M. was
    playing videogames.
    [15]   Alford has failed to establish that the limited exception of the incredible
    dubiosity rule applies, and we decline to disturb the jury’s determination that
    S.M.’s testimony was more credible than Alford’s denial. S.M. testified that
    when he was thirteen years old, Alford put his mouth on S.M.’s penis. The
    State proved by sufficient evidence that Alford committed child molesting, a
    Level 1 felony.
    II. Inappropriate Sentence
    A. Standard of Review
    [16]   “The Court may revise a sentence authorized by statute if, after due
    consideration of the trial court’s decision, the Court finds that the sentence is
    inappropriate in light of the nature of the offense and the character of the
    offender.” Ind. Appellate Rule 7(B). “[T]he question under Appellate Rule
    7(B) is not whether another sentence is more appropriate; rather, the question is
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 10 of 14
    whether the sentence imposed is inappropriate.” King v. State, 
    894 N.E.2d 265
    ,
    268 (Ind. Ct. App. 2008).
    [17]   The defendant has the burden to persuade us that the sentence imposed by the
    trial court is inappropriate. Anglemyer v. State, 
    868 N.E.2d 482
    , 494 (Ind. 2007),
    clarified on reh’g, 
    875 N.E.2d 218
    . Deference to the trial court’s sentencing
    decision should prevail unless it can be overcome by compelling evidence
    “portraying in a positive light the nature of the offense (such as accompanied by
    restraint, regard, and lack of brutality) and the defendant’s character (such as
    substantial virtuous traits or persistent examples of good character).” Stephenson
    v. State, 
    29 N.E.3d 111
    , 122 (Ind. 2015). “The principal role of appellate review
    should be to attempt to leaven the outliers . . . not to achieve a perceived
    ‘correct’ result in each case.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1225 (Ind.
    2008).
    B. Alford’s Sentence
    [18]   Alford’s argument does not comment specifically upon the nature of his offense
    or his character. Instead, Alford argues that the sentence of forty-five years “is,
    effectively, a death sentence” because Alford was fifty-two years old when
    sentenced and “in extraordinarily poor health[.]” Br. of Appellant at 17.
    Alford points out that the Shelby County Probation Department recommended
    a sentence of thirty-three years. We nonetheless address the two prongs of Rule
    7(B) for assessing whether a sentence is inappropriate.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 11 of 14
    [19]   The nature of the offense refers to a defendant’s actions in comparison with the
    elements of the offense. Cannon v. State, 
    99 N.E.3d 274
    , 280 (Ind. Ct. App.
    2018), trans. denied. The nature of the offense can be analyzed by using the
    advisory sentence as a starting point. 
    Anglemyer, 868 N.E.2d at 494
    .
    [20]   Alford was found guilty of one count of Level 1 felony child molesting and was
    found to be an habitual offender. He received a sentence of thirty-five years for
    his conviction, enhanced by ten years for the habitual offender finding. The
    sentencing range for a Level 1 felony is between twenty years and forty years
    with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(b). The
    sentencing range for the habitual offender finding is between six years and
    twenty years, Ind. Code § 35-50-2-8(i)(1), but due to an agreement between the
    parties when Alford admitted his habitual offender status, the enhancement was
    capped at fifteen years. The trial court noted at sentencing that “[t]his is an
    egregious case, there are significant aggravators, but it is probably in the realm
    of Level 1 Felonies not the worst of the worst . . . and therefore the maximum
    sentence is not appropriate.” Tr., Vol. 2 at 182. Alford was charged with one
    count of child molesting, but S.M. testified there were several separate acts.
    These acts presumably occurred when other children were in the house because
    the house also served as a daycare facility. We agree with the trial court that
    this is not the worst of offenses, but an aggravated, less-than-maximum
    sentence is not inappropriate.
    [21]   The character of the offender refers to “general sentencing considerations and
    the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 12 of 14
    280. “We assess the trial court’s recognition or non-recognition of aggravators
    and mitigators as an initial guide to determining whether the sentence imposed
    was inappropriate.” Stephenson v. State, 
    53 N.E.3d 557
    , 561 (Ind. Ct. App.
    2016). When evaluating the character of the offender, we consider his or her
    criminal history a relevant factor. Sanders v. State, 
    71 N.E.3d 839
    , 844 (Ind. Ct.
    App. 2017), trans. denied. “The significance of [a defendant’s] criminal history
    varies based on the gravity, nature, and number of prior offenses in relation to
    the current offense.” Johnson v. State, 
    986 N.E.2d 852
    , 857 (Ind. Ct. App. 2013).
    [22]   Alford’s criminal history consists of five prior misdemeanor convictions and
    three prior felony convictions. These convictions are primarily for drug
    offenses; he has no priors for offenses against a person. He has been on
    probation four times. He violated the terms of his probation in three of those
    instances and his probation was revoked in two cases. The trial court noted
    that it ordered Alford taken into custody at the conclusion of his trial and he
    was found to be in possession of drugs and contraband when he arrived at the
    county jail. The trial court found this to be “the ultimate contempt of this
    Court and this process.” Tr., Vol. 2 at 182. Although Alford’s criminal history
    is not related to the current offense in gravity or nature, there are a number of
    prior offenses, and his disregard for the law is apparent in his blatant
    commission of a crime while in court. As for Alford’s sole argument about his
    advanced age and poor health, neither of these are virtuous character traits that
    indicate his sentence is inappropriate.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 13 of 14
    [23]   After considering the nature of Alford’s crime and his character, we conclude
    his sentence is not inappropriate.
    Conclusion
    [24]   The State presented sufficient evidence to support Alford’s conviction of child
    molesting, and his aggregate sentence of forty-five years is not inappropriate.
    Accordingly, his conviction and sentence are affirmed.
    [25]   Affirmed.
    Riley, J., and Kirsch, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 14 of 14