Johnathon I. Carter v. State of Indiana , 2015 Ind. App. Unpub. LEXIS 407 ( 2015 )

Apr 10 2015, 9:54 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard J. Thonert Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnathon I. Carter, April 10, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1405-CR-181
v. Appeal from the
Allen Superior Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Cause No. 02D05-1311-FA-461
Kirsch, Judge.
1
We note some discrepancy in the cause number in the record before us. The parties’ appellate briefs reflect
02D06, as do other filings in the trial court, including the charging information, various motions, and the trial
court’s final jury instructions. However, the judgment of conviction, transcript, and chronological case
summary reflect 02D05, which we elect to use in this opinion.
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[1] Following a jury trial, Johnathon I. Carter was convicted of three counts of
Class A felony child molesting2 and two counts of Class C felony child
molesting.3 He raises four issues on appeal that we restate as:
I. Whether the manner in which the jury was instructed concerning
the requirement of jury unanimity constituted fundamental error;
II. Whether the trial court abused its discretion in admitting certain
expert testimony;
III. Whether the State presented sufficient evidence to convict Carter;
IV. Whether Carter’s ninety-eight-year sentence is inappropriate in
light of the nature of the offense and the character of the offender.
[2] We affirm the convictions, revise the sentence, and remand with instructions.4
Facts and Procedural History
[3] On June 28, 2009, Carter married Q.C. (“Mother”), who at that time had three
sons, M.S., age fifteen, M.J., age fourteen, and M.N., age eight. Mother and
her sons moved from Gary to Fort Wayne in December 2010, and Carter
moved shortly thereafter, in January 2011. M.S. had his own room in the
residence. M.J. and M.N. shared a bedroom. Between January 2011 and April
2013, the family lived in five different residences in Fort Wayne. M.N. and
M.J. shared a bedroom at each of the locations. Carter and Mother worked for
2
See Ind. Code § 35-42-4-3(a). We note that, effective July 1, 2014, new versions of the criminal statutes with
which Carter was charged were enacted, but because he committed his crimes prior to that date, we will
apply the applicable statutes in effect at that time.
3
See Ind. Code § 35-42-4-3(b).
4
We note that Carter’s request for oral argument has been denied by separate order.
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the same employer, but generally worked different shifts from each other, such
that when Mother was at work, Carter was at home.
[4] From at least early August 2010 to near the end of April 2013, Carter engaged
in sexual acts with M.N. The encounters took place at each of the residences
where the family lived, usually in M.N.’s bedroom or Carter’s bedroom,
sometimes happening in the morning after the older brothers had left for school,
sometimes in the afternoon when no one else was home, or during the night.
Carter would require M.N. to perform oral sex and would also require him to
submit to it. He also required M.N. to engage in anal sex. Carter also fondled
and touched M.N.’s penis, and Carter required M.N. to touch Carter’s penis.
Carter bribed M.N. with candy and money.
[5] At some point, M.N. told M.J. what Carter was doing, but M.J. “didn’t believe
me.” Tr. at 249. In November 2011, M.N. disclosed to Mother that Carter had
been molesting him. Mother and M.N. made a police report to the Fort Wayne
Police Department, a department of child services (“DCS”) investigation began,
and Carter moved out of the residence. On November 23, 2011, Julie DeJesus,
a forensic interviewer, interviewed M.N. at the Dr. Bill Lewis Center for
Children. DeJesus wore an earpiece, and a multi-disciplinary team5 listened
from another room. M.N. disclosed to DeJesus, with words and demonstrating
with his hands, that Carter had abused him. That same day, Sharon Robinson,
5
The multi-disciplinary team consisted of a victim’s advocate and a representative from each of the
following: law enforcement, child protective services, and the prosecutor’s office.
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a sexual assault nurse examiner, at the Fort Wayne Sexual Assault Treatment
Center, examined M.N. Detective Robin Pfeiffer of the Fort Wayne Police
Department separately interviewed M.N. and Carter on November 28, 2011.
[6] M.J. and Carter had an amicable relationship, and M.J. enjoyed spending time
with him. M.J. was angry that Carter had left the residence, due to M.N.’s
disclosures, and M.J. treated M.N. differently after Carter was gone. M.J.
ignored M.N. and was less playful with M.N. He called him a snitch and a
coward. M.S. observed M.J. sometimes push M.N. and “tell him to get in the
corner or whatever,” even though M.N. had done nothing wrong. Id. at 430-
31. At some point, M.J. asked M.N. if the accusations against Carter were true,
and M.N. told M.J. that he had lied about Carter molesting him, but told M.J.
not to tell Mother. That same day, M.J. told the school counselor, Shirley
Snider that M.N. said that he had made up the accusations against Carter.
Snider contacted Detective Pfeiffer who, in turn, contacted Mother. Detective
Pfeiffer requested to interview M.N. again, but Mother required that she be
present for the interview, which was against police department policy, and the
investigation stalled. According to Detective Pfeiffer, the investigation “was
closed based on the uncooperation of the family.” Id. at 559.
[7] In January or February 2012, Carter moved back into the residence, and the
molestations resumed. The relationship between Mother and Carter
deteriorated, and Carter moved out of the house again in April 2013.
Thereafter, on May 2, 2013, M.N. told Mother that Carter had been molesting
him again. The investigation resumed. On May 23, 2013, Angela Mellon, a
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sexual assault nurse examiner at the Fort Wayne Sexual Assault Treatment
Center, examined M.N. Patricia Smallwood, a forensic interviewer at the Dr.
Bill Lewis Center for Children also interviewed M.N. in or around May 2013.
Detective Pfeiffer interviewed M.N., as well as Carter, on June 5, 2013.
[8] On November 28, 2013, the State charged Carter with three counts of Class A
felony child molesting and two counts of Class C felony child molesting. The
State alleged: Count I, between August 1, 2010 and April 27, 2013, Carter
performed or submitted to sexual deviate conduct by placing his penis in or on
the mouth of M.N.; Count II, between August 1, 2010 and April 27, 2013,
Carter performed or submitted to sexual deviate conduct by placing his mouth
on the penis of M.N.; Count III, between August 1, 2010 and April 27, 2013,
Carter performed or submitted to sexual deviate conduct by placing his penis in
or on the anus of M.N.; Count IV, between August 1, 2010 and April 27, 2013,
Carter performed or submitted to fondling or touching of M.N.; and Count V,
August 1, 2010 and April 27, 2013, Carter performed or submitted to fondling
or touching of M.N.
[9] At the two-day April 2014 jury trial, “M.N. testified about multiple occasions of
many different times, dates and locations of different acts of sexual deviate
conduct and fondling.” Appellant’s Br. at 5. M.N., who was ten years old at the
time of trial, testified that Carter molested him in all of the places where they
lived. Carter sometimes engaged in the conduct after M.N.’s brothers went to
school, but before M.N. went to school, sometimes when no one was home,
and other times when people were in the house. Carter made M.N. “suck his
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thing,” meaning Carter’s penis, and Carter did the same to M.N. Tr. at 237.
M.N. described that when he would suck Carter’s penis, sperm would come
out, although sometimes Carter would wear a condom or put a sock over his
penis. Id. at 240-41. M.N. described one occurrence, when he was ten years
old, in which Carter came into M.N.’s bedroom while he was playing video
games before school, and Carter sucked M.N.’s penis. Id. at 244-45. On
various occasions, M.N. “would give [Carter] masturbation” by using his hands
on Carter’s penis; M.N. demonstrated at trial how he would hold and move his
hand on Carter’s penis. Id. at 247. Carter would do the same to M.N.’s penis.
M.N. also testified that Carter “made [me] put my private in his butt.” Id. at
240.
[10] One afternoon, when M.N.’s brothers were at the park, M.N. was in Carter’s
bedroom, and Carter positioned M.N. “with [his] butt up,” and hands on the
bed, and Carter put his penis in M.N.’s “butt.” Id. at 247. M.N. said Carter put
his “private part” in M.N.’s “butt” on other occasions and, “[i]t would hurt.”
Id. M.N. also described an incident that occurred while he was sleeping in his
bed at night, when Carter came in and engaged in anal sex for about four
minutes. Id. at 266.
[11] M.N. testified that, after he reported that Carter was molesting him, and Carter
moved out of the residence the first time, M.J. began treating M.N. differently.
M.N. said that M.J. was mean to him and would call him a coward, punk, and
“the b-word.” Id. at 431. M.N. told the jury that, with Carter out of the house,
he knew that Mother was struggling to work and supervise the children on her
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own. M.N. explained that the reason that he previously had recanted, saying
that the allegations were not true, was because he wanted to help Mother.
Carter returned to the home, and the molestations resumed. M.N. testified that
Carter, after coming back, asked him, “Why did you tell on me?” Id. at 248.
[12] In her testimony, Mother mentioned that after Carter left the family’s residence
in November 2011 M.J. cried and missed him, and she observed that M.J. was
“standoff-ish” to M.N. Id. at 460. Mother was aware that during the period of
time when Carter was not living at the residence, but before M.N. recanted,
M.J. and Carter were in contact with one another and exchanged text messages.
Carter returned in January or February 2012, but she “put him out” in late
April 2013 due to difficulties in their marriage. Id. at 469.
[13] The State also presented, over Carter’s objections, the testimony of Smallwood,
a forensic interviewer and expert on child sexual abuse. Carter had filed a
motion to exclude Smallwood’s testimony, which the trial court denied, and he
made continuing objections both prior to opening statement and during her
testimony. At trial, Smallwood testified that she had been a family and child
sexual abuse counselor for over twenty years, having worked as a marriage and
family therapist at Parkview Hospital and as the Director of Victim Assistance
at the Allen County Sheriff’s Department and the Fort Wayne Police
Department. She interviewed M.N. in May 2013, but she did not testify about
M.N. or his individual case, instead offering generalized testimony about how
children deal with sexual abuse, the disclosure process, and the matter of when
and why children recant or retract their disclosures of abuse. She testified that a
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one-time incident of molestation is rare and that it is harder for boys to talk
about abuse that happens to them. She also stated that the longer a child waits
to disclose, the stronger the feeling that they will not be believed. Boys are also
more likely to retract. When a child retracts, it does not mean that it did not
happen. She testified that sexual abuse tends to place a child in a position of
having to choose between disclosing the abuse and wrecking the family, or
keeping the secret and suffering the abuse. Id. at 515. The pressure on children
to keep the family intact is intense. She stated that frequently, by the time of
disclosure, the child has been abused so many times that individual instances
tend to run together and children have difficulty relating specific events or
providing details. Carter requested a limiting instruction as to Smallwood’s
testimony and a motion for mistrial, which the trial court denied.
[14] DeJesus, who conducted a forensic interview of M.N. in November 2011, also
testified that M.N. disclosed to her that Carter had been abusing him.
Robinson, the sexual assault nurse examiner, also testified at trial, over Carter’s
objections, and his request for mistrial was denied. Robinson testified that,
while she did not observe any injuries to M.N. during her examination of him
in November 2011, a lack of injury does not mean an assault did not occur and
that, in the vast majority of cases, there is no visible injury. M.N. described
incidents of sexual acts, including sucking of Carter’s private part and Carter
inserting that into M.N.’s “butt.” Id. at 363. M.N. told her that Carter
“whooped” him and that it hurt. M.N. told her that the molestations
“happened lots of times.” Id. at 364. Mellon, who physically examined M.N.
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in May 2013, testified that M.N. explained and demonstrated to her that Carter
touched his private parts and put his private parts “in [his] butt lots of times.”
Id. at 386. On other occasions, M.N. told her “sperm” or “stuff” had come out
of Carter’s penis. Id. at 387.
[15] Following the presentation of evidence, Carter tendered a final jury instruction
regarding jury unanimity, which was denied over his objection. The jury
convicted Carter, as charged, of five counts of child molesting. The trial court
imposed an aggregate sentence of ninety-eight years, consisting of three
consecutive thirty-year sentences on each of the three Class A felonies and to
two consecutive four-year sentences for each of the two Class C felonies. Carter
now appeals his convictions and his sentence. Additional facts will be supplied
as necessary.
Discussion and Decision
I. Jury Unanimity Instruction
[16] Carter contends the trial court erred by rejecting his tendered final jury
instruction regarding jury unanimity. The manner of instructing a jury lies
largely within the discretion of the trial court, and we will reverse only for an
abuse of discretion. Surber v. State, 884 N.E.2d 856, 867 (Ind. Ct. App. 2008),
trans. denied. In determining whether a trial court abused its discretion by
declining to give a tendered jury instruction, we consider (1) whether the
tendered instruction correctly states the law; (2) whether there was evidence
presented at trial to support giving the instruction; and (3) whether the
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substance of the instruction was covered by other instructions that were given.
Brakie v. State, 999 N.E.2d 989,993 (Ind. Ct. App. 2013), trans. denied. We
consider jury instructions not in isolation, but as a whole, with reference to each
other. Surber, 884 N.E.2d at 867. “‘Errors in the giving or refusing of
instructions are harmless where a conviction is clearly sustained by the evidence
and the jury could not properly have found otherwise.’” Brakie, 999 N.E.2d at
993 (quoting Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001)).
[17] With regard to jury unanimity, Indiana has long required that a verdict of guilty
in a criminal case “must be unanimous.” Baker v. State, 948 N.E.2d 1169, 1173
(Ind. 2011). Our Supreme Court has recognized that applying the rule of jury
unanimity can present difficult challenges in child molestation or sex offense
cases. Id. at 1174. One reason for this is because often a child is abused by an
individual who resides with the child and that person “‘perpetuate[s] the abuse
so frequently . . . that the young child loses any frame of reference in which to
compartmentalize the abuse into distinct and separate transactions. Such
evidence of abuse has been termed generic evidence.’” Id. (quoting R.L.G. v.
State, 712 So. 2d 348, 356 (Ala. Crim. App. 1997)). In such a situation, “[t]he
victim’s ‘generic testimony’ may describe a pattern of abuse (‘every time mama
went to the store’) rather than specific incidents (‘after the July 4th parade’).”
Id. A concern about jury unanimity may arise because the jury is not presented
with a specific act upon which its members unanimously may agree. Id.
Indeed, the jury may be presented with evidence of a greater number of separate
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criminal offenses than the defendant is charged with in the information. Id. at
1175.
[18] Here, the State charged that Carter, between August 1, 2010 and April 27,
2013, committed child molesting by three acts of sexual deviate conduct –
placing his penis in or on M.N.’s mouth, placing his mouth on M.N.’s penis,
and placing his penis in or on M.N.’s anus – and two acts of fondling or
touching of M.N. Thus, while at least the first three counts identified an act by
description, they did not specify a date or location or other specific detail;
instead, the charges each alleged a date range within which the conduct
occurred.6 On appeal, Carter complains that, although he was charged with
one count of child molesting in each count, the jury heard evidence of multiple
acts of molestation over an extended period of time. Therefore, he claims, it is
“probable” that a juror or jurors found him guilty of some charged and/or some
uncharged conduct, but not guilty of some charged crimes, or a combination
thereof, and that “a non-unanimous verdict was the result.” Appellant’s Br. at 9.
Essentially, his complaint is that there is no way of knowing which particular
act or acts, if any, the jury unanimously agreed upon.
6
Our Supreme Court has recognized that time is not of the essence in the crime of child molesting. Barger v.
State, 587 N.E.2d 1304, 1307 (Ind. 1992). This is so because “it is difficult for children to remember specific
dates, particularly when the incident is not immediately reported as is often the situation in child molesting
cases.” Id. Therefore, the precise time and date of the commission of a child molestation offense generally is
not regarded as a material element of the crime. Id.
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[19] At trial, Carter tendered a final jury instruction regarding jury unanimity that
separately stated, for each of the five counts, that
In order to find the Defendant guilty of Count [I, II, III], each of you
must agree, your verdict must be unanimous, upon the commission of
a specific act of Criminal Deviate Conduct.
....
In order to find the Defendant guilty of Count [IV, V], each of you
must agree, your verdict must be unanimous, upon the commission of
a specific act of fondling or touching.
[20] Appellant’s Amended App. Vol. 1 at 29-20, 32-33. The trial court rejected the
instruction, finding that it was covered by other of the trial court’s instructions.
On appeal, Carter argues that the trial court erred by rejecting the instruction
and claims the trial court failed to properly instruct the jury regarding the
requirement of jury unanimity. The State maintains that the trial court’s
decision to refuse the instruction was proper because it was not a correct
statement of the law. Based on the facts and circumstances of this case, we
agree with the State.
[21] In reaching this decision, we rely on our Supreme Court’s instructive analysis in
Baker, which presents facts similar to those before us. There, Baker was charged
with one count of child molesting for each of the three alleged victims;
however, the jury heard evidence of multiple acts of molesting for each victim.
On appeal, Baker argued that some jurors may have relied on different evidence
than the other jurors to convict him on each of the three counts. The Baker
Court’s analysis recognized that “the State may in its discretion designate a
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specific act (or acts) on which it relies to prove a particular charge”; however, if
the State does not so designate, jurors should be instructed that in order to
convict, they must “either unanimously agree that the defendant committed the
same act or acts or that the defendant committed all of the acts described by the
victim and included within the time period charged.” Id. The Baker Court
adopted the reasoning of the California Supreme Court, which explained that
this type of instruction, “‘in addition to allowing a conviction if the jurors
unanimously agree on specific acts, also allows a conviction if the jury
unanimously agrees the defendant committed all the acts described by the
victim.’” Id. at 1177 (quoting People v. Jones, 270 Cal. Rptr. 611, 792 P.2d 643,
650 (1990)). The California Supreme Court further observed, “[C]redibility is
usually the ‘true issue’ [and] the jury either will believe the child’s testimony
that the consistent repetitive patter of acts occurred or disbelieve it.” Id. In this
case, Carter’s proposed instruction did not instruct the jury that it must
unanimously agree that he committed all of the acts described by M.N. Thus, it
was not a complete and correct statement of the law, and the trial court did not
abuse its discretion when it rejected it.
[22] That being said, Carter’s jury received the general jury-unanimity instruction,
which stated, in part, “Each of you must refuse to vote for conviction unless
you are convinced beyond a reasonable doubt of the defendant’s guilt. Your
verdict must be unanimous . . . The foreperson will preside over your
deliberations and must sign and date the verdict to which you all agree.”
Appellant’s Amended App. Vol. 1 at 52, 55. The Baker Court held that such an
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instruction – which “did not advise the jury that in order to convict Baker the
jury must either unanimously agree that he committed the same act or acts or
that he committed all of the acts described by the victim and included within
the time period charged” – was insufficient. Baker, 948 N.E.2d at 1178.
Because the defendant in Baker neither objected nor offered an instruction of his
own, our Supreme Court analyzed the issue using the fundamental-error
doctrine. Id. The Baker Court found that the only issue was the credibility of
the alleged victims, i.e., whether they were lying, and “the jury resolved the
basic credibility dispute against [Baker] and would have convicted him of any of
the various offenses shown by the evidence to have been committed.” Id. at
1179 (emphasis in original). Accordingly, the Baker Court held there was no
fundamental error. Id.
[23] Unlike Baker, Carter objected to the trial court’s instruction and submitted one
of his own. However, as we have explained, Carter’s tendered instruction was
not a correct statement of the law, or at least not a complete one. “[A] party
who fails to tender a correct instruction waives any error regarding an
incomplete or omitted instruction unless the error is fundamental.” Carson v.
State, 686 N.E.2d 864, 865 (Ind. Ct. App. 1997), trans. denied. The purpose of
an instruction is to inform the jury of the law applicable to the facts without
misleading the jury and to enable it to comprehend the case clearly and arrive at
a just, fair, and correct verdict. Id. The determinative question is whether the
error by itself infected the entire trial such that the resulting conviction violates
due process. Id. Thus, we must determine here whether the instructional error
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was fundamental. Fundamental error is an extremely narrow exception to the
waiver rule where the defendant faces the heavy burden of showing that the
alleged errors are so prejudicial to the defendant’s rights as to make a fair trial
impossible. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014). In Ryan, our
Supreme Court recently addressed the fundamental error doctrine, there in the
context of alleged prosecutorial misconduct, and recognized that our task
includes reviewing all relevant information given to the jury. It stated:
In evaluating the issue of fundamental error, our task in this case is to
look at the alleged misconduct in the context of all that happened and
all relevant information given to the jury – including evidence admitted at
trial, closing argument, and jury instructions – to determine whether the
misconduct had such an undeniable and substantial effect on the jury’s
decision that a fair trial was impossible.
[24] Id. at 667-68 (emphasis added and internal cites and quotes omitted); see also
Manuel v. State, 793 N.E.2d 1215, 1218 (Ind. Ct. App. 2003) (when determining
whether instructional error resulted in fundamental error, we look to all
relevant information given to jury, including closing argument and other
instructions), trans. denied.
[25] As was the case in Baker, the case before us largely turns on credibility. The
jury heard evidence that M.N. was forced to perform oral sex upon Carter, and
submit to oral sex performed by Carter, submit to and perform anal intercourse,
and fondle and touch Carter’s penis, and submit to Carter touching him. He
reported the abuse to M.J., who did not believe him, and to Mother twice. He
repeated the allegations to multiple interviewers and nurse examiners. The
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main issue for the jury to resolve was whether M.N. was telling the truth with
regard to Carter’s acts of molestation.
[26] We note that the prosecutor in closing argument specifically addressed what
evidence established which acts as alleged in the charges. That is, although she
recognized that “[M.N.] told you that these things happened a lot,” she
thereafter identified a number of specific acts as they related to each count. Tr.
at 583. For instance, she reminded the jury that M.N. described three different
types of deviate sexual conduct, relative to Counts I, II, and III: Carter put his
penis in M.N.’s anus; Carter sucked M.N.’s penis; and Carter made M.N. suck
his. Id. at 582-84. With regard to Counts IV and V, fondling and touching, she
reminded the jury that M.N. verbally described and demonstrated with his hand
the manner in which Carter touched M.N.’s penis and required M.N. to touch
his. With regard to unanimity, she further told the jury, “[T]here’s twelve of
you and you all have to be in agreement on your decision and you have to agree
that the acts that [M.N.] described did, in fact, occur in order for you to find the
Defendant guilty and it has to be unanimous.” Id. at 585. We also observe that
each member of the jury was polled as to the verdict, and each member
affirmed his or her agreement. Considering all relevant information that was
before the jury, we conclude, as did the Court in Baker, that Carter has failed to
demonstrate that any instructional error constituted fundamental error.
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II. Admission of Expert Testimony
[27] Carter claims that the trial court erred when it admitted Smallwood’s
testimony. The admission and exclusion of evidence falls within the sound
discretion of the trial court, and we will review the admission of evidence solely
for an abuse of discretion. Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App.
2012). An abuse of discretion occurs where the decision is clearly against the
logic and effect of the facts and circumstances before the court. Hoglund v. State,
962 N.E.2d 1230, 1237 (Ind. 2012). However, even if the trial court
erroneously admits evidence, such error will be disregarded unless it affects the
substantial rights of a party. Id. at 1238. Specifically, we look to the probable
impact of the erroneous admission on the jury. Id. The improper admission of
evidence is harmless error if the conviction is supported by substantial evidence
of guilt satisfying this court that there is no substantial likelihood the challenged
evidence contributed to the conviction. Id. Here, Carter argues that the trial
court abused its discretion when it admitted the testimony of Smallwood, over
his objections, request for limiting instruction, and motion for mistrial. He
claims that her testimony impermissibly vouched for M.N.’s credibility and
ultimately denied him a fair trial.
[28] Regarding improper vouching testimony generally, Indiana Evidence Rule
704(b) provides that “[w]itnesses may not testify to opinions concerning intent,
guilt, or innocence in a criminal case; the truth or falsity of allegations; whether
a witness has testified truthfully; or legal conclusions.” Such vouching
testimony is an invasion of the province of the jurors in determining the weight
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they should place upon a witness’s testimony. Gutierrez v. State, 961 N.E.2d
1030, 1034 (Ind. Ct. App. 2012). It is essential that the trier of fact determine
the credibility of the witnesses and the weight of the evidence. Id.
[29] During its case-in-chief, and after M.N. testified, the State presented the
testimony of Smallwood, over Carter’s objections. Smallwood, a forensic
interviewer at the Dr. Bill Lewis Center for Children, provided expert testimony
concerning the dynamics of child abuse, the disclosure process, and when and
why a child may recant his disclosure of the abuse. Smallwood testified to a
number of factors that contribute to a child’s delay in disclosing abuse,
including secrecy, lack of witnesses, fear or shame, and worry about keeping the
family intact. She noted that “a real gender issue” exists, and studies reveal that
it is more difficult for males to disclose sexual abuse. Tr. at 516. She also
recognized the fact that with delayed disclosure, the child may face the
skepticism associated with “why are you telling now?” Id. Smallwood
continued that sometimes children retract or recant their statement; she stated
that a child may recant because the abuse did not happen or may do so because,
once they report the abuse, the family is pulled apart, which is exactly what
they feared would occur. They may feel the effects of anger or lack of support,
a sense of, “[L]ook, you made this happen.” Id. at 518. In this situation, a
child might feel responsible for “putting it all back together, so they take it back,
they say it didn’t happen.” Id.
[30] We disagree with Carter that Smallwood’s testimony ran afoul of Indiana
Evidence Rule 704(b). Although Smallwood interviewed M.N., she never
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mentioned M.N. in her testimony or made any statement or opinion regarding
the truth or falsity of M.N.’s allegations of molestation. Smallwood did not
purport to have any opinion regarding the case at bar, nor did she refer to any
specific facts at issue. Her testimony was broad, generalized, and included
reference to results of research studies. In her testimony, she confirmed that a
recantation could mean that no abuse had occurred. We note, and as the State
reminds us, this court has permitted expert testimony explaining the behaviors
and dynamics associated with domestic violence, including that associated with
why a victim may recant. Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App.
2012), trans. denied. The Otte court noted that “the reactions and behaviors of
domestic violence victims are not commonly understood by laypersons,” and
“testimony regarding a victim’s propensity to recant . . . simply provides the
jury with information outside its experience, permitting it to assess credibility
based upon a more complete understanding of all potential factors at issue.” Id.
We find that Smallwood’s testimony likewise provided information to the jury
beyond that commonly understood by laypersons, and, under the circumstances
before us, her expert testimony did not constitute impermissible vouching
testimony.
III. Sufficiency of the Evidence
[31] Carter next asserts that the evidence was not sufficient to convict him. When
reviewing the sufficiency of evidence to support a conviction, we consider only
the probative evidence and reasonable inferences supporting the trial court’s
decision. Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans.
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denied. It is the role of the trier-of-fact to assess witness credibility and weigh
the evidence to determine whether it is sufficient to support a conviction. Id.
“To preserve this structure, when we are confronted with conflicting evidence,
we consider it most favorably to the trial court’s ruling.” Id. It is not necessary
that the evidence overcome every reasonable hypothesis of innocence; rather,
the evidence is sufficient if an inference reasonably may be drawn from it to
support the trial court’s decision. We will affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. We note that it is well settled that the uncorroborated
testimony of the victim, even if the victim is a minor, is sufficient to sustain a
conviction for child molesting. Morrison v. State, 462 N.E.2d 78, 79 (Ind. 1984).
[32] Carter was convicted of three counts of Class A felony and two counts of Class
C felony child molesting. In order to convict Carter of Class A felony child
molesting, the State was required to prove beyond a reasonable doubt that
Carter, over age twenty one, knowingly or intentionally performed or submitted
to deviate sexual conduct with M.N. when he was under fourteen years of age,
namely: Carter placed his penis in or on M.N.’s mouth, he placed his mouth on
M.N.’s penis, and he placed his penis in M.N’s anus. Ind. Code § 35-42-4-3;
Appellant’s Amended App. Vol. 2 at 1-3. The offense of child molesting as a Class
C felony is set forth in Indiana Code section 35-42-4-3(b), which provides, “A
person who, with a child under fourteen (14) years of age, performs or submits
to any fondling or touching, of either the child or the older person, with intent
to arouse or to satisfy the sexual desires of either the child or the older person,
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commits child molesting, a Class C felony.” Mere touching alone is insufficient
to constitute the crime of child molesting. Bass v. State, 947 N.E.2d 456, 460
(Ind. Ct. App. 2011), trans. denied. The State must also prove beyond a
reasonable doubt that the act of touching was accompanied by the specific
intent to arouse or satisfy sexual desires. Id. The intent element of child
molesting may be established by circumstantial evidence and may be inferred
from the actor’s conduct and the natural and usual consequence to which such
conduct usually points. Id.
[33] Here, M.N. testified that the molestations occurred in each of the five homes in
which they lived. He testified to acts of deviate sexual conduct as charged. He
testified that Carter touched his penis and that Carter made M.N. “give him
masturbation” and that sometimes Carter ejaculated; from this the jury could
infer the intent to arouse or satisfy sexual desires. Tr. at 247. Carter invokes
the incredible dubiosity rule to claim that M.N.’s “uncorroborated testimony
was so unreliable and untrustworthy” that his convictions must be reversed.
Appellant’s Br. at 28. The incredible dubiosity rule provides that a court may
impinge on the jury’s responsibility to judge witness credibility only when
confronted with inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity. Love v. State, 761 N.E.2d
806, 810 (Ind. 2002). Application of this rule is rare, and “‘[T]he standard to be
applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.’” Hampton v. State, 921
N.E.2d 27, 29 (Ind. Ct. App. 2010) (quoting Fajardo v. State, 859 N.E.2d 1201,
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1208 (Ind. 2007), trans. denied. The rule applies only when a witness contradicts
herself or himself in a single statement or while testifying, and does not apply to
conflicts between multiple statements. Manuel v. State, 971 N.E.2d 1262, 1271
(Ind. Ct. App. 2012). Cases where we have found testimony inherently
improbable have involved situations either where the facts as alleged “could not
have happened as described by the victim and be consistent with the laws of
nature or human experience,” or where the witness was so equivocal about the
act charged that her uncorroborated and coerced testimony “was riddled with
doubt about its trustworthiness.” Watkins v. State, 571 N .E.2d 1262, 1265 (Ind.
Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624 (Ind. 1991). Carter cannot
fit his case into either category.
[34] Carter suggests that the events as described by M.N. “could not have
happened” and “were contrary to common sense and human experience”
because there was no medical, physical, or eye-witness testimony. Appellant’s
Br. at 26-27. He points to “exculpatory eye-witness testimony” of his brothers
and Mother who “had never seen, had no personal knowledge [of], nor were
they aware of any act of sexual misconduct between Carter and M.N.” Id. at
10. His argument seems to be that the molestation could not have happened in
the house without someone hearing it or seeing it, particularly those acts that
M.N. described happened in his bedroom while M.J. was also present. We
disagree. Some of the acts happened when family members were home, while
others occurred while no one was home. That no other person testified to
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witnessing or hearing M.N. being molested does not establish that the abuse did
not happen.
[35] We also reject Carter’s argument that M.N.’s testimony was untrustworthy and
contradictory. Carter makes much of the fact that M.N. told M.J. that he had
fabricated the molestation accusations. Id. at 24 (“concerning the lies of
M.N.”), at 28 (“M.N. stated that he lied” and “the only reason the lie came
out”). However, M.N. testified at trial that, in fact, the molestations did occur,
both before Carter moved out in November 2011 and after he returned in early
2012, and he explained that his reason for untruthfulness to M.J. was to help
Mother, who M.N. realized was struggling as a single parent and without
Carter at home to help supervise the children and run the household. M.N.’s
testimony was consistent, and at no time did he contradict himself while
testifying. Furthermore, his testimony was consistent with his reports of abuse
to the forensic interviewers and nurses who performed examinations of him.
The jury had the opportunity to hear M.N.’s testimony and to determine his
credibility. We decline Carter’s invitation to impinge on the province of the
jury and reassess that credibility. The State presented sufficient evidence to
convict Carter of the charged offenses.
IV. Appropriateness of Sentence
[36] Finally, Carter challenges his ninety-eight-year executed sentence for the three
Class A and two Class C felony convictions. Carter urges us to find that the
trial court “abused its discretion” when it sentenced Carter because the decision
is clearly against the logic and effect of the facts and circumstances before the
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trial court. Appellant’s Br. at 2, 12-13, 29. A trial court can abuse its discretion
by (1) issuing an inadequate sentencing statement; (2) finding aggravating or
mitigating factors that are not supported by the record; (3) omitting factors that
are clearly supported by the record and advanced for consideration; or (4) by
finding factors that are improper as a matter of law. Laster v. State, 956 N.E.2d
187, 193 (Ind. Ct. App. 2011). Carter’s argument, however, focuses not on the
sentencing statement or on aggravators and mitigators, but on his age,
character, steady employment and lack of criminal history, maintaining that
these factors warrant a reduction in his sentence.7 Accordingly, we review
Carter’s sentence under Appellate Rule 7(B), which allows us to revise a
sentence if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender. It is the defendant’s burden on appeal to persuade the
reviewing court that the sentence imposed by the trial court is inappropriate.
Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
“[W]hether we regard a sentence as appropriate at the end of the day turns on
our sense of culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a given case.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Upon appellate review,
7
We remind counsel that whether a trial court has abused its discretion by improperly recognizing
aggravators and mitigators when sentencing a defendant and whether a defendant’s sentence is inappropriate
under Indiana Appellate Rule 7(B) are two distinct analyses. Hape v. State, 903 N.E.2d 977, 1000 n.12 (Ind.
Ct. App. 2009), trans. denied.
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we have the power to affirm, reduce, or increase the sentence. Akard v. State,
937 N.E.2d 811, 813 (Ind. 2010).
[37] Carter’s Class A felony child molesting convictions subjected him to
imprisonment for a fixed term of between twenty and fifty years, with the
advisory being thirty years. Ind. Code § 35-50-2-4. Carter’s Class C felony
child molesting conviction subjected him to imprisonment for a fixed term of
between two and eight years, with the advisory being four years. Ind. Code §
35-50-2-6(a). As to the nature of the offense, the advisory sentence is the
starting point that the legislature has selected as an appropriate sentence for the
crime committed. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified
on reh’g, 875 N.E.2d 218 (Ind. 2007).
[38] Here, the trial court sentenced Carter to the advisory sentence of thirty years for
the Class A felony convictions and the advisory sentence of four years for the
Class C felony convictions, ordering the sentences to be served consecutively to
one another for a total of ninety-eight years. Carter argues that the nature of
the offense does not justify such a lengthy sentence because he “made no threat
to M.N,” and he did not beat or “severely brutalize” M.N. except as was
inherent in the commission of the crime. Appellant’s Br. at 29; Reply Br. at 16.
He further asserts that his character, likewise, does not justify the imposed
ninety-eight-year sentence because he had no prior criminal history, he had a
history of steady employment, and he was young, twenty-two years old at the
start of the allegations and twenty-five at the time of sentencing. He also
presented to the trial court letters from a number of individuals who pointed out
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that he had no prior trouble with the law, kept a job, was hard-working, and
was family-oriented. Carter asserts that he possesses the potential for
reformation and rehabilitation that would allow him to return as a productive
member of society.
[39] The State responds that Carter systematically and repeatedly abused eight-year-
old M.N., who called him “dad.” The State opines that it was “mind-boggling”
that Carter “had within his grasp a complete reprieve,” when M.N. recanted his
allegations, and due to the family’s unwillingness to cooperate with law
enforcement, the investigation stalled; Carter could have “walked away” from
charges of Class A felonies by no longer committing them. Appellant’s Br. at 21.
However, upon returning to the home, Carter resumed molesting M.N., thereby
“capitalizing” on M.N.’s self-sacrificing love for his mother. Id. at 22. The
State argues that, although Carter was only twenty-two years of age when the
offenses began, he was “old enough to know better.” Id.
[40] Carter occupied a position of trust with M.N., and his offenses are undeniably
serious. However, on balance of all the factors, we find that the ninety-eight-
year sentence is out of range of appropriate results. We revise Carter’s sentence
to two consecutive thirty-year terms for two of the Class A felony convictions
and to one concurrent thirty-year term for the third Class A felony, plus two
consecutive four-year terms on the Class C felony convictions, for an aggregate
sentence of sixty-eight years. We affirm Carter’s convictions and remand the
case to the trial court with instructions to enter such sentence.
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[41] Affirmed and remanded with instructions.
Friedlander, J., and Crone, J., concur.
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