Timothy Lee Hyser v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as May 14 2015, 8:32 am
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
Gary L. Griner Gregory F. Zoeller
Mishawaka, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Lee Hyser, May 14, 2015
Appellant-Defendant, Court of Appeals Case No.
20A05-1410-CR-487
v. Appeal from the Elkhart Circuit
Court.
The Honorable Terry Shewmaker,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 20C01-1206-FA-32
Baker, Judge.
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[1] Timothy Hyser appeals his convictions for class A felony Child Molesting1 and
class C felony Child Molesting.2 Hyser argues that the trial court erred when it
denied his request to inspect J.M.’s mental health records and that there was
insufficient evidence to support the convictions. Finding no error, we affirm.
Facts
[2] In 2011, Hyser lived next door to six-year-old J.M., his mother, Joni Miller,
and her boyfriend, Mark Marner. Marner was a registered sex offender. Hyser
and Marner became friends, and Miller and Marner often trusted Hyser to
watch J.M. after school.
[3] In early 2011, J.M. told Miller that Hyser had put his penis in J.M.’s mouth.
However, Miller did not believe J.M. because he did not seem upset. Later in
2011, J.M. told Miller that Hyser made him look at pictures of naked people.
When Miller confronted Hyser, Hyser admitted that J.M. had found a
pornographic magazine that Hyser kept under the couch. In December 2011,
J.M. cried and told Miller that Hyser had again put his penis in J.M.’s mouth.
Miller did not report these allegations to the police or to the Department of
Child Services (DCS).
[4] Hyser himself called DCS on December 27, 2011. He later spoke with a case
worker and explained that there was a possibility that J.M. had been sexually
1
Ind. Code § 35-42-4-3(a)(1).
2
I.C. § 35-42-4-3(b).
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abused. He told the case worker that J.M. had recently accused him of some
sexually inappropriate behavior including “oral sex” and “things being stuck in
[J.M.’s] butt.” Tr. p. 234. He also told the case worker that he believed Marner
beat J.M. and that he had seen Miller slap J.M. That same day, DCS contacted
Miller and asked to interview J.M.
[5] Forensic interviewer Anne Kobold interviewed J.M. In addition, DCS
contacted the Elkhart Police Department, and Detective Charles Osterday
investigated the case and attended the forensic interview. Detective Osterday
watched the interview from a separate room, and learned that J.M. had been
sexually abused by Hyser, not by Marner. After the interview, Detective
Osterday spoke with Miller, and told her that J.M. had accused Hyser of sexual
abuse, including fondling and oral and anal sex. Detective Osterday then
interviewed Miller and Marner.
[6] On January 6, 2012, Detective Osterday called Hyser and asked if he could
come speak with Hyser at his home. Hyser agreed, and Detective Osterday
conducted a recorded interview with Hyser. Hyser denied having oral sex with
J.M. He also told the detective that he was fifty-three years old and gave him
the names of individuals he stated would have information to help the detective
in his investigation. Detective Osterday interviewed all but one of those
individuals.
[7] On June 13, 2012, the State charged Hyser with class A felony child molesting
and class C felony child molesting. On November 28, 2012, a jury found Hyser
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guilty as charged. On December 7, 2012, the trial court sentenced Hyser to an
aggregate term of thirty years. Hyser appealed, and, on October 17, 2013, this
Court reversed Hyser’s convictions, finding that he had not been given a
meaningful opportunity to present a complete defense. Hyser v. State, 996
N.E.2d 443, 450 (Ind. Ct. App. 2013).
[8] A second jury trial began on July 28, 2014. During the retrial, J.M. testified
that Hyser made him do “inappropriate stuff” with Hyser’s penis, and testified
that Hyser made him “wiggle it” and “suck it.” Tr. p. 200. He testified that
Hyser made him make a “cupped hand motion around the penis up and down,”
and “[o]ne time white stuff came out, and it was disgusting.” Id. at 301. J.M.
also testified that once “that white stuff” came out of Hyser’s penis while it was
in his mouth. Id. at 302. J.M. also testified that Hyser put his penis “up my
bottom.” Id. at 303. J.M., who had not seen Hyser in three years, testified that
he would be unlikely to recognize Hyser. While J.M. could not identify Hyser
in open court, he did describe Hyser as he appeared at the time he lived next
door to J.M., testifying that Hyser had a white beard, white curly hair, and
glasses.
[9] At one point during the cross-examination of Miller on retrial, defense counsel
asked Miller if J.M. had spoken with a counselor at Oaklawn. The prosecutor
objected, stating that any communication between J.M. and a counselor was
confidential, that the information was irrelevant, and that Miller had no
firsthand knowledge of any such communication, which would make the
statements inadmissible on hearsay grounds. The trial court asked defense
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counsel for what purpose the evidence was being offered, at which point
defense counsel requested an in camera inspection of J.M.’s counseling records
because “there’s possibly some exculpatory information in that report.” Id. at
117. The trial court sustained the State’s objection and did not conduct an in
camera inspection.
[10] On July 13, 2014, the jury found Hyser guilty as charged. On October 9, 2014,
the trial court sentenced Hyser to thirty years on the class A felony child
molesting conviction and to four years on the class C felony child molesting
conviction. The sentences were ordered to be served concurrently. Hyser now
appeals.
Discussion and Decision
I. J.M.’s Counseling Records
[11] Hyser first argues that the trial court erred when it did not inspect J.M.’s
counseling records in camera. He also maintains that the State’s failure to
provide him with the records violated Brady v. Maryland, 378 U.S. 83 (1963),
because the records might have contained exculpatory evidence.
[12] Hyser’s first contention is that the trial court was required to make an in camera
inspection of J.M.’s counseling records. Hyser argues that the State should
have allowed him to inspect the records, but does not argue or point us to any
evidence to show that he ever made a formal discovery request for the
documents from Oaklawn or the State. Rather, Hyser argues that the trial court
should have allowed him to view the records in camera or should have
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inspected the record itself. However, we will not hold that the trial court erred
in refusing to make an in camera inspection or refusing to allow Hyser to do so
when it appears that Hyser did not avail himself of the discovery procedures
available to him. Therefore, this argument fails.
[13] Alternatively, Hyser contends that the State committed a Brady violation when
it failed to provide him with J.M.’s counseling records. In Brady v. Maryland,
the Supreme Court of the United States held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
In order to prevail on a claim that the prosecution failed to disclose exculpatory
evidence, a defendant must show that 1) the prosecution suppressed evidence,
2) the evidence was favorable to the defense, and 3) the evidence was material
to an issue at trial. Conner v. State, 711 N.E.2d 1238, 1245-46 (Ind. 1999). In
addition, “[a] reviewing court will find that the prosecution should have
disclosed evidence when ‘there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.’” Id. at 1246 (quoting U.S. v. Bagley, 473 N.E.2d 667, 680
(1985)). The State will not be found to have suppressed material information if
that information was available to a defendant through the exercise of
reasonable diligence. Id.[14] Here, Hyser has entirely failed to show that J.M.’s counseling records were
favorable to the defense. Hyser only states that the records would have shown
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that J.M. did not have a good relationship with Marner and that J.M. thought
Marner was a “villain.” Appellant’s Br. p. 11. Even if we accept this as true, it
does not establish that the records were exculpatory or favorable to the defense.
We certainly cannot say, based on the above claim, that the result of the
proceeding would have been different or that the records were material.
Therefore, this argument must fail.
II. Sufficiency of the Evidence
[15] Hyser also argues that there was insufficient evidence to support his
convictions. When reviewing the sufficiency of the evidence supporting a
conviction, we consider only the probative evidence and reasonable inferences
supporting the trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). It is the fact-finder’s role, and not ours, to assess witness credibility and
weigh the evidence to determine whether it is sufficient to support a conviction.
Id. When we are confronted with conflicting evidence, we consider the
evidence most favorable to the trial court’s ruling. Id. We will affirm a
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Id. Therefore, 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. Id. at 147.
[16] To prove that Hyser was guilty of class A felony child molesting, the State was
required to show that Hyser was at least twenty-one years of age, and that he
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knowingly or intentionally performed or submitted to sexual intercourse or
deviate sexual conduct with a child under fourteen years of age. Ind. Code §
35-42-4-3(a)(1).3 To prove that Hyser was guilty of class C felony child
molesting, the State was required to show that he performed or submitted to
any fondling or touching of a child with intent to arouse or to satisfy the sexual
desires of himself or the the child. I.C. § 35-42-4-3(b).
[17] Hyser first argues that there was insufficient evidence because J.M. was unable
to identify him at trial. He states that there was never an in-person
identification, nor was there evidence of a photographic identification presented
to the jury. Hyser, however, points us to no legal authority that requires the
victim in a child molesting case to identify a defendant in order for a jury to be
able to find a defendant guilty. Here, when J.M. was asked whether he would
be able to identify Hyser, he stated that it was unlikely. However, he was able
to describe Hyser as he had looked when J.M had known him three years
earlier. It is not unreasonable that a child of nine might not be able to identify a
man he had known three years earlier, when he was six. This argument is
merely a request to reweigh the evidence, a request we decline.
[18] Hyser also maintains that testimony of both Miller and Marner was incredibly
dubious. Under the “incredible dubiosity rule” we may “impinge on the jury’s
responsibility to judge the credibility of the witness only when it has confronted
3
Indiana Code section 35-42-4-3 has been revised since the time that Hyser committed these offenses. We
cite to the statue as it read at the time Hyser committed the offenses.
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‘inherently improbable testimony or coerced, equivocal, wholly uncorroborated
testimony of incredible dubiosity.’” Rodgers v. State, 422 N.E.2d 1211, 1213
(Ind. 1981). We will reverse a conviction if the sole witness presents inherently
improbable testimony and there is no circumstantial evidence of the defendant’s
guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind. 1999). Further, we will
overturn a conviction based upon the incredible dubiosity rule when the
testimony is so incredibly dubious or inherently improbable that it runs counter
to human experience, and no reasonable person could believe it. Baumgartner v.
State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008).
[19] Here, we note that the incredible dubiousity rule applies when there is a “sole
witness.” Rodgers, 422 N.E.2d at 1213. That is simply not true in the instant
case, inasmuch as seven witnesses testified for the State at trial. Moreover,
Hyser does not claim that J.M.’s testimony is incredibly dubious. Thus, the
incredible dubiousity rule does not apply, and this argument must fail.
[20] In the instant case, fifty-three-year-old Hyser was charged with molesting six-
year-old J.M. J.M. testified that Hyser was his neighbor and described Hyser as
he looked at the time of the molestations. He also testified that Hyster made
him perform oral sex, made him do “inappropriate stuff” with Hyser’s penis,
and made him “wiggle it” and “suck it.” Tr. p. 200. J.M. also testified that
“that white stuff” came out of Hyser’s penis while it was in his mouth. Id. at
302. Additionally, J.M. testified that Hyser made him make a “cupped hand
motion around the penis up and down,” and “[o]ne time white stuff came out,
and it was disgusting.” Id. at 301. In addition, J.M. testified that, on another
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occasion, Hyser put his penis “up my bottom.” Id. We note that a conviction
for child molesting may rest solely upon the uncorroborated testimony of the
victim. Link v. State, 648 N.E.2d 709, 713 (Ind. Ct. App. 1995). Here, the
testimony of J.M. was sufficient to allow a reasonable jury to conclude that
Hyser was guilty of class A felony child molesting and class C felony child
molesting beyond a reasonable doubt.
[21] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
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