Timothy L. Larkey, Sr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 16 2017, 11:33 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy L. Larkey, Sr., May 16, 2017
Appellant-Defendant, Court of Appeals Case No.
90A02-1612-CR-2767
v. Appeal from the Wells Circuit
Court
State of Indiana, The Honorable Kenton W.
Appellee-Plaintiff. Kiracofe, Judge
Trial Court Cause No.
90C01-1512-FC-4
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017 Page 1 of 8
Case Summary
[1] Between March of 2013 and July of 2014, Appellant-Defendant Tim Larkey,
Sr. (“Larkey”) was living with his son Tim Larkey, Jr., his son’s girlfriend
Amanda G., and her four children in a house in Poneto, Indiana. On May 21,
2015, the children were removed from Amanda’s care by the Department of
Child Services (“DCS”). In September of 2015, D.G., one of Amanda’s
children, was referred to a counselor by DCS. During a counseling session that
same month, D.G. disclosed to her counselor that Larkey had entered her
bedroom and fondled her vagina sometime between March 2013 and July of
2014. The counselor reported the allegation to the Child Abuse Hotline and
D.G. was interviewed by the Wells County DCS. On December 22, 2015, after
the investigation by DCS and the police department, the Appellee-Plaintiff the
State of Indiana (“the State”) charged Larkey with Class C felony child
molesting.
[2] On October 6 and 7, 2016, a jury trial was held. Larkey was found guilty as
charged and the trial court sentenced Larkey to eight years of incarceration.
Larkey contends that the State produced insufficient evidence to sustain his
conviction of Class C felony child molesting and that the sentence is
inappropriate in light of the nature of his offense and his character. Concluding
that the evidence is sufficient and his sentence is not inappropriate, we affirm.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017 Page 2 of 8
[3] Between March of 2013 to July of 2014, Amanda and her four children lived in
a home that had belonged to her grandmother in Poneto, Indiana. Amanda’s
boyfriend, Tim Larkey, Jr., and his father, Larkey, also lived in the house. The
home had one bedroom downstairs, one bedroom upstairs, and an upstairs
apartment. Amanda and Larkey, Jr. shared the downstairs bedroom, the
children shared the upstairs bedroom, and Larkey, resided in the upstairs
apartment. Larkey babysat the children from time to time and he had a good
relationship with them; the children even referred to him as “Grandpa.” Tr.
Vol. II p. 59.
[4] All four children were removed from Amanda’s care by the DCS on May 21,
2015. In September of 2015, D.G., one of Amanda’s children, was referred to a
counselor by DCS. During a counseling session on September 30, 2015, D.G.
disclosed to the counselor that she had been sexually abused by Larkey. The
counselor then made a report to the Child Abuse Hotline. D.G. was
interviewed by Wendeline Garrett of the Wells County DCS on October 5,
2015. Garrett was familiar with D.G. and had known her since D.G. was
removed from her mother’s care in May of 2015.
[5] D.G. testified that while she was living in the house in Poneto, she woke up one
night when she felt Larkey touching her inside of her underwear with his hand.
D.G. testified that the contact was skin to skin. When D.G. woke up, she hit or
kicked Larkey and the touching stopped. D.G. did not tell anyone about the
incident until her counseling session in September of 2015 because she was
scared.
Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017 Page 3 of 8
[6] The Wells County Department of Child Services and the Bluffton police
department investigated the allegation of molestation by Larkey. On December
22, 2015, the State charged Larkey with Class C felony child molesting. On
October 6 and 7, 2016, a jury trial was held. The jury found Larkey guilty as
charged and the trial court sentenced him to eight years of incarceration.
Discussion and Decision
[7] Larkey raises the following restated issues: (1) whether the State presented
sufficient evidence to sustain Larkey’s conviction for Class C felony child
molesting and (2) whether the trial court imposed an inappropriate sentence in
light of the nature of Larkey’s offense and character.
I. Sufficiency of the Evidence
[8] Our standard for reviewing the sufficiency of the evidence claims is well-settled.
Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).
In reviewing the sufficiency of the evidence, we examine only the
probative evidence and reasonable inferences that support the
verdict. We do not assess witness credibility, nor do we reweigh
the evidence to determine if it was sufficient to support a
conviction. Under our appellate system, those roles are reserved
for the finder of fact. Instead, we consider only the evidence
most favorable to the trial court ruling and affirm the conviction
unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. This evidence need not
overcome every reasonable hypothesis of innocence; it is
sufficient so long as an inference may reasonably be drawn from
it to support the verdict.
Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017 Page 4 of 8
Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (internal citations and quotation
marks omitted). The trier of fact is responsible for resolving conflicts of
testimony, determining the weight of the evidence, and evaluating the
credibility of the witnesses. Jones v. State, 701 N.E.2d 863, 867 (Ind. Ct. App.
1998). Additionally, “[t]he uncorroborated testimony of the victim, even if the
victim is a minor, is sufficient to sustain a conviction of child molesting, and it
is within the province of the trier of fact to reject evidence to the contrary.”
Feyka v. State, 972 N.E.2d 387, 393 (Ind. Ct. App. 2012).
[9] That said, Larkey asserts that the only evidence to support his conviction, i.e.
D.G.’s testimony, was uncorroborated and incredibly dubious. The incredible
dubiosity rule, which requires the reversal of a conviction, is only applied in
very narrow circumstances. Leyva v. State, 971 N.E.2d 699, 702 (Ind. Ct. App.
2012). The incredible dubiosity rule is expressed as follows:
If a sole witness presents inherently improbable testimony and
there is a complete lack of circumstantial evidence, a defendant’s
conviction may be reversed. This is appropriate only where the
court has confronted inherently improbable testimony or coerced,
equivocal, wholly uncorroborated testimony of incredible
dubiosity. Application of this 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).
[10] D.G. testified that Larkey entered her bedroom while she and her sisters were
asleep and fondled her vagina, “skin on skin.” Tr. Vol. II, pp. 82-83. D.G.
Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017 Page 5 of 8
further testified that he only stopped once she woke up and hit or kicked him.
D.G.’s testimony was not inherently contradictory or improbable, and there is
no suggestion, much less evidence, of coercion. We, therefore, conclude that
there was sufficient evidence for the jury to convict Larkey.
[11] Larkey suggests that D.G.’s testimony was contradictory because she said she
was not absolutely sure that her molester was not Larkey, Jr. due to the passage
of time since the incident; however, D.G. did later clarify that she was certain
Larkey, Sr. was the perpetrator when she initially disclosed the molestation to
her counselor. It was within the jury’s province to evaluate D.G.’s credibility as
a witness, and the jury chose to believe the victim.
II. Sentence Challenge
[12] Larkey also raises the issue of whether sentencing him to the maximum
sentence allowed by law is appropriate in light of the nature of his offense and
character. Under Indiana Appellate Rule 7(B), “[t]he 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.” When reviewing such claims,
we “concentrate less on comparing the facts of the [case at issue] to others,
whether real or hypothetical, and more on focusing on the nature, extent, and
depravity of the offense for which the defendant is being sentence, and what it
reveals about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825
(Ind. Ct. App. 2008) (internal quotes and citations omitted). Larkey, as the
Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017 Page 6 of 8
defendant, bears the burden of persuading us that his sentence is inappropriate.
Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[13] The sentencing range for a Class C felony conviction is between two and eight
years of imprisonment, with the advisory sentence being four years of
imprisonment. Ind. Code § 35-50-2-6(a). The advisory sentence is merely a
starting point for the court when considering the appropriateness of a sentence.
See Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016). The trial court in
this case sentenced Larkey to the maximum sentence of eight years.
[14] With respect to the nature of the offense, Larkey fondled the vagina of a ten-
year-old girl in her bedroom while her sisters slept in the same room. He also
had some position of trust with D.G. and her sisters; they oftentimes referred to
him as “Grandpa.” Tr. Vol. II, p. 166. The disturbing nature of Larkey’s
offense does not offer us any reason to modify his sentence.
[15] As for Larkey’s character, at the age of fifty-six he has amassed a significant
adult criminal history, including multiple felony convictions. Larkey also had
several juvenile adjudications, one of which would have been a felony if he had
been an adult. Larkey’s lengthy criminal record and inability to reform himself
shows his poor character and confirms the appropriateness of the sentence
which was imposed by the trial court. Consequently, we do not agree with
Larkey’s argument that in light of the nature of his offense and his character, his
sentence is inappropriate.
[16] We affirm the judgment of the trial court.
Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017 Page 7 of 8
Najam, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017 Page 8 of 8