Charles Day v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
Feb 07 2013, 8:53 am
court except for the purpose of
establishing the defense of res judicata, CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS J. O’BRIEN GREGORY F. ZOELLER
O’Brien & Dekker Attorney General of Indiana
Lafayette, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES DAY, )
)
Appellant-Defendant, )
)
vs. ) No. 79A04-1206-CR-303
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1106-FA-11
February 7, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Here, appellant-defendant Charles Day was the only paternal grandfather that ten-
year-old O.S. knew, even though he was not her biological grandfather. Day married
O.S.’s grandmother before she was born, and O.S. frequently stayed overnight with her
paternal grandparents.
During these overnight visits, O.S. slept in the same bed with Day because her
grandmother, Debra, had to sleep in another room for health reasons. Day would
inappropriately touch O.S. virtually every time she stayed with them. Eventually O.S.
told her step-sister about the incidents, who in turn, told O.S.’s mother.
Day was convicted of five counts of Child Molesting,1 three as class A felonies
and two as class C felonies; Attempted Child Molesting,2 a class A felony; and Child
Solicitation,3 a class D felony. Day was sentenced to an executed term of forty-four years
in the Department of Correction (DOC).
On appeal, Day argues that the evidence is insufficient, insofar as O.S.’s testimony
is incredibly dubious. Additionally, Day contends that his sentence is inappropriate in
light of the nature of the offenses and his character pursuant to Indiana Appellate Rule
7(B).
Concluding that O.S.’s testimony was not incredibly dubious and that, to the
contrary, independent evidence supported her testimony, we find sufficient evidence to
1
Ind. Code § 35-42-4-32
Id.; Ind. Code § 35-41-5-1.
3
I.C. § 35-42-4-6.
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sustain Day’s convictions. Moreover, in light of Day’s position of trust, the repeated
nature of the offenses, the way in which Day paid his granddaughter so that she would
engage in sexual acts with him, and his criminal background, we cannot conclude that his
forty-four-year executed sentence is inappropriate, and we decline to revise it.
Accordingly, the judgment of the trial court is affirmed.
FACTS
O.S., born on March 1, 2000, lived with her father in Lafayette. On weekends,
O.S. stayed with her mother. O.S. would also frequently stay overnight with her paternal
grandparents, Day and his wife, Debra. Whenever she stayed at Day’s house, she slept in
the same bed with Day, while her grandmother slept in another room because of health
reasons. Although Day is not a biological relative, he was the only grandfather that O.S.
knew on her father’s side, having been married to Debra since before O.S. was born.
Beginning when O.S. was ten years old, Day would inappropriately touch her
“almost every time [she] would go over there.” Tr. p. 38. He began by kissing her longer
than a goodnight kiss should last. Day progressed to touching her leg and soon, he was
touching her vagina and digitally penetrating her. Day would also penetrate O.S.’s
vagina with his tongue and ask her if it felt good. Day touched O.S. with his penis and
asked her to touch his penis with her hand or her mouth. “White stuff would come out of
[Day’s penis] sometimes.” Id. at 41. Day’s behavior escalated to where he was
attempting to have anal sex with O.S.; however, it hurt her so badly that she would move
away from him when he attempted to penetrate her.
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Day told O.S. to keep his actions their little secret or he would be in trouble. Day
would pay O.S. $20 to masturbate him or to perform oral sex on him. Day offered this
money in advance to entice O.S. to perform these acts. O.S. then used the money to buy
pizza for herself and her friends at a local pizza shop.
After almost one year had passed, O.S. became “sick and tired of it” and told her
step-sister, B.Y., about the abuse. Tr. p. 46, 111. B.Y. then told O.S.’s mother. The
Lafayette Police Department was called, and O.S. and her mother were taken to the
Hartford House, where O.S. was interviewed by a child forensic interviewer. Tr. p. 125,
139, 154.
On June 6, 2011, the State charged Day with five counts of child molesting, three
as class A felonies and two as class C felonies; one count of class A felony attempted
child molesting; and one count of class D felony child solicitation. The jury found Day
guilty as charged on April 11, 2012.
On May 25, 2012, Day was sentenced to forty-four years for each of the class A
felony convictions, seven years for the class C felony conviction, and two years for the
class D felony conviction with all counts to be served concurrently with each other for a
total executed term of forty-four years imprisonment. Day now appeals.
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DISCUSSION AND DECISION
I. Sufficiency of the Evidence – Incredible Dubiosity Rule
Day argues that the evidence was insufficient to sustain his convictions. More
particularly, Day contends that the testimony of the sole witness, O.S., was incredibly
dubious.
Generally, when reviewing the sufficiency of the evidence, the reviewing court
neither reweighs the evidence nor determines the credibility of witnesses. Gardner v.
State, 724 N.E.2d 624, 626 (Ind. Ct. App. 2000). Additionally, under the current state of
the law, the uncorroborated testimony of a single witness may sustain a conviction.
McCarthy v. State, 749 N.E.2d 528, 538 (Ind. 2001).
Notwithstanding these general principles, the doctrine of incredible dubiosity
allows a reviewing court to reevaluate the credibility of a witness when “a sole witness
presents inherently improbable testimony and there is a complete lack of circumstantial
evidence.” Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). The “[a]pplication 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.” Id.A defendant cannot appeal to this exception merely by showing some
inconsistency or irregularity in a witness’s testimony. Cowan v. State, 783 N.E.2d 1270,
1278 (Ind. Ct. App. 2003). Rather, a defendant must show that the witness’s testimony
“runs counter to human experience” such that no reasonable person could believe it.
Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000). Moreover, the rule does
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not apply when testimony is corroborated by additional witnesses or circumstantial
evidence. Thompson v. State, 765 N.E.2d 1273, 1274 (Ind. 2002).
Here, the fact that O.S. and Day slept in one bedroom while Debra slept in a
different bedroom corroborates O.S.’s testimony and provides circumstantial evidence to
support her testimony. Tr. p. 36, 90, 100. Moreover, O.S.’s father corroborated her
testimony that Day paid her to perform sexual acts when he testified that O.S. would
often ride her bicycle to the local pizza place to buy pizza and soda, which were the exact
items on which O.S. stated she spent the money. Id. at 43, 74. Finally, O.S.’s mother
corroborated O.S.’s testimony that she first disclosed the molestations to B.Y. and that
her mother learned of the accusations from B.Y. Id. at 45, 111. In light of the above, we
cannot say that there is a complete lack of circumstantial evidence. Therefore, the
incredible dubiosity exception does not apply, and this argument fails.
II. Inappropriate Sentence
Day maintains that his executed forty-four-year sentence is inappropriate in light
of the nature of the offenses and his character under Rule 7(B). When reviewing a Rule
7(B) appropriateness challenge, we defer to the trial court. Stewart v. State, 866 N.E.2d
858, 866 (Ind. Ct. App. 2007). The burden is on the defendant to persuade us that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Our
Supreme Court has opined that “[i]n the vast majority of cases, whether [the aggregate
sentence and how it is to be served] are derived from multiple or single counts, involve
maximum or minimum sentences, and are concurrent or consecutive is of far less
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significance than the aggregate term of years.” Cardwell v. State, 895 N.E.2d 1219, 1224
(Ind. 2008).
Here, Day was sentenced to an executed term of forty-four years imprisonment
after being convicted of four class A felonies, two class C felonies, and one class D
felony. Indiana Code section 35-50-2-4 provides that a person convicted of a class A
felony shall be imprisoned for a term between twenty and fifty years with an advisory
term of thirty years. Likewise, a person convicted of a class C felony shall be imprisoned
for a term between two and eight years with an advisory term of four years. Ind. Code §
35-50-2-6. And a person who commits a class D felony shall be imprisoned for a term
between six months and three years with the advisory sentencing being one and one-half
years. I.C. § 35-50-2-7. Thus, it is immediately apparent that Day’s executed term is far
less than what he was subjected to under statute.
As for the nature of the offenses, Day was in a position of trust, insofar as he was
the only paternal grandfather that O.S. knew. Day sexually abused O.S. “almost every
time [she] would go over there,” which was frequently. Tr. p. 38. And the molestations
continued for nearly one year. Id. at 36, 112, 138. Not only were the molestations
repeated and prolonged, but Day treated his ten-year-old granddaughter like a prostitute,
paying her $20 each time she would perform certain sexual acts including oral sex. Id. at
43. The nature of the offenses certainly does not assist Day’s inappropriateness
argument.
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As for Day’s character, he does have a criminal history. More particularly, in
1989, Day was convicted of a class D felony drug offense, and in 2004, he was convicted
of operating a vehicle while intoxicated (OVWI) and failing to stop at the scene of an
accident. PSI p. 4-5. As part of a plea agreement in the 2004 OVWI case, another
OVWI charge from two months earlier was dismissed as was a charge of possession of a
controlled substance. Id.
Moreover, in 1969, Day was arrested for being Absent Without Official Leave,
(AWOL), and reported being tried by a court-martial and incarcerated for six months by
the United States Navy. PSI p. 5. While Day may not be the worst of the worst, his
character is not so pristine to convince us that his forty-four year executed sentence is
inappropriate, particularly in light of the fact that he was convicted of seven offenses,
four of which were class A felonies. Consequently, Day’s sentence is not inappropriate
in light of the nature of the offenses and his character and we affirm the decision of the
trial court.
The judgment of the trial court is affirmed.
RILEY, J., and BARNES, J., concur.
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