Ken Gunn, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 22 2020, 9:33 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
– Appellate Division
Tina L. Mann
Timothy J. O’Connor Samantha M. Sumcad
Indianapolis, Indiana Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ken Gunn, Jr., June 22, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2346
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G04-1810-F1-34611
Mathias, Judge.
[1] Following a jury trial in Marion Superior Court, Ken Gunn, Jr. (“Gunn”) was
convicted of one count of Level 1 felony child molesting, one count of Level 1
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 1 of 12
felony attempted child molesting, five counts of Level 4 felony child molesting,
and one count of Class A misdemeanor intimidation. The jury also found Gunn
to be an habitual offender. The trial court sentenced Gunn to an aggregate term
of ninety-two years of incarceration. Gunn appeals and presents two issues,
which we restate as: (1) whether the State presented evidence sufficient to
support Gunn’s conviction for Level 1 felony attempted child molestation, and
(2) whether two of Gunn’s convictions for child molesting constitute double
jeopardy. Concluding that the evidence is sufficient to support Gunn’s
conviction for Level 1 felony attempted child molesting but that two of Gunn’s
convictions constitute double jeopardy, we affirm in part, reverse in part, and
remand.
Facts and Procedural History
[2] At the time relevant to this appeal, Gunn and his long-term girlfriend Ni.G.
were living together in Marion County, Indiana with their biological children,
K.G., N.G., and K.J.G. Gunn’s child with another woman, N.W., also lived
with the family.
[3] In September 2018, Gunn drove his thirteen-year-old daughter, K.G., and her
younger siblings N.G. and K.J.G. to a local convenience store, where he got
out of the car and spoke with a woman for some time. He then returned to the
car and parked the car in a different part of the parking lot. When K.G.’s
younger siblings fell asleep, Gunn pulled up his daughter’s shirt, reached into
her bra, and touched her breast. K.G. smacked her father’s hand away. After
this incident, Gunn drove the children back home.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 2 of 12
[4] Later that same month, Gunn drove the same children to a video rental store to
rent movies. Again, the younger children fell asleep in the car. When they did,
Gunn put his hands inside K.G.’s pants and inserted his finger into her vagina.
K.G. told him to stop because it was uncomfortable. Gunn stopped, became
angry, and drove away. At around the same time that month, Gunn drove K.G.
and her friend home from a softball game one evening. After dropping the
friend off at her home, Gunn parked the car in a parking lot and again touched
K.G.’s breasts. K.G. told Gunn that she did not like what he was doing, which
again caused Gunn to become angry and drive away.
[5] Sometime later in 2018, when Gunn was alone in the car with K.G., he
exposed his penis to K.G. and told her to lick it. Tr. Vol. 2, p. 142. K.G.
refused, causing Gunn to become angry. Gunn attempted to force K.G.’s head
down toward his penis as she pushed him away. In early October 2018, Gunn
volunteered to go to the store to get K.G.’s grandmother a drink. The children
wanted candy and accompanied Gunn to the gas station convenience store.
Again, when the younger children fell asleep, Gunn put his hands down K.G.’s
pants and rubbed the outside of her genital area. K.G. wanted to tell her
grandmother about Gunn’s actions but was afraid to do so because Gunn had
warned her not to tell and had threatened to hurt K.G.’s grandmother if K.G.
told anyone.
[6] On the evening of October 3, 2018, K.G. went to the bedroom she shared with
N.G. and got into the top bunk of the bunk bed. When K.G. got out of bed to
use the restroom, Gunn was standing outside of the bathroom door. When
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 3 of 12
K.G. came out of the bathroom, Gunn followed her back to the bedroom.
Gunn stood on the bottom bunk while K.G. got into the top bunk. Gunn tried
to grab K.G. while she attempted to pull away. Gunn put his hands inside of
K.G.’s pants and inserted his finger into her vagina. K.G.’s mother, Ni.G., then
came into the bedroom and saw Gunn’s hand moving toward K.G.’s pajama
shorts. Ni.G. then pulled Gunn off the bed, struck him in the mouth, and asked
if she was “touching on [her] daughter.” Tr. Vol. 2, p. 94.
[7] Ni.G. noticed that K.G. had been crying and asked if Gunn had touched her.
Gunn told K.G. to “shut the f**k up,” and warned her that she “better not say
nothing.” Id. at 97, 130. K.G. admitted to her mother that Gunn had been
touching her. Ni.G. told one of the other children to telephone the police. Gunn
then pushed his way out of the bedroom, exited through the patio doors, and
jumped off the second floor balcony and ran away.
[8] On October 9, 2018, the State charged Gunn with two counts of Level 1 felony
attempted child molesting, two counts of Level 1 felony child molesting, five
counts of Level 4 felony child molesting, and one count of Class A
misdemeanor intimidation. The State later added an allegation that Gunn was
an habitual offender.
[9] A jury trial was held on August 5–6, 2019. At the conclusion of the trial, the
jury found Gunn guilty of one count of Level 1 felony attempted child
molesting, one count of Level 1 felony child molesting, five counts of Level 4
felony child molesting, and Class A misdemeanor intimidation. The jury also
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 4 of 12
found that Gunn was an habitual offender. The trial court sentenced Gunn on
September 30, 2019, to an aggregate term of ninety-two years of incarceration.
Gunn now appeals.
I. Sufficiency of the Evidence
[10] Gunn first argues that the evidence was insufficient to support his conviction for
Level 1 felony attempted child molesting. When addressing a claim of
insufficient evidence, we neither reweigh the evidence nor judge the credibility
of witnesses. McAllister v. State, 91 N.E.3d 554, 558 (Ind. 2018). We instead look
only to the evidence most favorable to the verdict, along with all reasonable
inferences to be drawn from that evidence. Id. If there is substantial evidence of
probative value to support the verdict, and the evidence could have allowed a
reasonable jury to find the defendant guilty beyond a reasonable doubt, we will
not disturb the verdict. Barger v. State, 587 N.E.2d 1304, 1306 (Ind. 1992).
[11] “A person who, with a child under fourteen (14) years of age, knowingly or
intentionally performs or submits to sexual intercourse or other sexual conduct
(as defined in IC 35-31.5-2-221.5) commits child molesting, a Level 3 felony.”
Ind. Code § 35-42-4-3(a). The offense is elevated to a Level 1 felony if “it is
committed by a person at least twenty-one (21) years of age[.]” Id. § 3(a)(1).
“Other sexual conduct” is defined to include “an act involving . . . a sex organ
of one (1) person and the mouth or anus of another person[.]” Ind. Code § 35-
31.5-2-221.5(1). Furthermore, “A person attempts to commit a crime when,
acting with the culpability required for commission of the crime, the person
engages in conduct that constitutes a substantial step toward commission of the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 5 of 12
crime.” Ind. Code § 35-41-5-1(a). And “an attempt to commit a crime is a
felony or misdemeanor of the same level or class as the crime attempted.” Id.
[12] Thus, to convict Gunn of Level 1 felony attempted child molesting, the State
was required to prove that Gunn, a person over the age of twenty-one,
knowingly or intentionally took a substantial step toward performing or
submitting to an act involving his sex organ and the mouth of K.G., a child
under the age of fourteen. Here, K.G. testified that Gunn exposed his penis to
her, told her to lick it, and attempted to push her head toward his penis when
she refused. K.G.’s uncorroborated testimony is sufficient by itself to support
Gunn’s conviction for Level 1 felony attempted child molesting. See Young v.
State, 973 N.E.2d 1225, 1227 (Ind. Ct. App. 2012) (noting the longstanding rule
that a conviction for child molesting may rest on the uncorroborated testimony
of the victim) (citing Barger, 587 N.E.2d at 1308), trans. denied.
[13] Nevertheless, Gunn insists that K.G.’s testimony regarding the incident that led
to his conviction for Level 1 felony attempted child molesting cannot be
believed because it was incredibly dubious. Under the “incredible dubiosity”
rule, a reviewing court may “impinge on the jury’s responsibility to judge the
credibility of the witness only when it has confronted ‘inherently improbable
testimony or coerced, equivocal, wholly uncorroborated testimony of incredible
dubiosity.’” Id. at 1226 (quoting Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind.
1981)). Under this rule, we may reverse a conviction if a sole witness presents
incredibly dubious or inherently improbable evidence such that no reasonable
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 6 of 12
person could believe it and if there is a complete lack of circumstantial
evidence. Id. (citing White v. State, 706 N.E.2d 1078, 1079–80 (Ind. 1999)).
[14] Gunn notes that, with regard to the incident where her father attempted to force
her head toward his penis, K.G. testified at a pre-trial deposition that she
“d[id]n’t think so,” when asked if she had seen her father’s genitals. Tr. Vol. 2,
p. 158. But at trial, K.G. testified that she had seen her father’s “nuts,” “dick,”
or “thing.” Id. at 143–44. Gunn claims that these two versions of events are
irreconcilable, and that, given the uncorroborated nature of K.G.’s testimony,
renders her testimony incredibly dubious. We disagree.
[15] “The fact that a witness gives trial testimony that contradicts earlier pre-trial
statements does not necessarily render the trial testimony incredibly dubious.”
Young, 973 N.E.2d at 1226–27 (citing Murray v. State, 761 N.E.2d 406, 409 (Ind.
2002)). Moreover, there is nothing inherently improbable about K.G.’s
testimony such that no reasonable person could believe it. In short, there is
nothing incredibly dubious about K.G.’s testimony, and the jury could
reasonably conclude that, based on her testimony, Gunn committed Level 1
felony attempted child molesting.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 7 of 12
II. Double Jeopardy
[16] Gunn next claims that his convictions on Counts VII and VIII, as amended at
trial,1 constitute double jeopardy under the actual evidence test. Under the
actual evidence test announced in Richardson v. State, 717 N.E.2d 32, 53 (Ind.
1999), to establish a violation of the double jeopardy clause of the Indiana
Constitution, a defendant must demonstrate a reasonable possibility that the
evidentiary facts used by the jury to establish the essential elements of one
offense may also have been used to establish all of the essential elements of a
second challenged offense. Application of this test requires the court to identify
the essential elements of each of the challenged crimes and to evaluate the
evidence from the jury’s perspective. Singh v. State, 40 N.E.3d 981, 986 (Ind. Ct.
App. 2015) (citing Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)), trans. denied.
In determining whether two or more convictions constitute double jeopardy
under the actual evidence test, we consider the essential elements of the
offenses, the charging information, the jury instructions, the evidence, and the
arguments of counsel. Id. The term “reasonable possibility” turns on a practical
assessment of whether the jury may have latched on to exactly the same facts
for both convictions. Id.
[17] In the present case, amended Count VII alleged:
1
At trial, the State dismissed the original Count VI, causing original counts VII, VIII, IX, and X to be
renumbered for the jury as VI, VII, VIII, and IX, respectively. The abstract of judgment, however, still refers
to the counts according to their original numbering.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 8 of 12
On or about September 23, 2018, Ken Gunn, Jr., a person at least
twenty-one (21) years of age, did perform other sexual conduct
(as defined in Indiana Code Section 35-31.5-2-221.5) with
[K.G.], a child under the age of fourteen years (14), to-wit, twelve
(12) years old.
Appellant’s App. p. 134. Amended Count VIII alleged that:
On or about September 23, 2018, Ken Gunn, Jr., a person at least
twenty-one (21) years of age, did perform fondling or touching
with [K.G.], a child under the age of fourteen years (14), to-wit,
twelve (12) years old, with the intent to arouse or satisfy the
sexual desires of Ken Gunn, Jr., or [K.G.].
Id.
[18] The acts supporting both of the convictions under these counts occurred on the
same date,2 and were based on the same incident where Gunn took the children
to the video store. With regard to this incident, K.G. testified at trial as follows:
A. I was talking to a friend and then that’s when, I guess, she
might have [fell] asleep because she stopped texting back.
So that’s when he had put his hands in my pant[s] and he
started, like, messing with my vagina.
Q. And when you say messing with your vagina, can you
describe for the jurors what that means?
2
The charging information alleged that the acts in question occurred “on or about September 23, 2018.”
Appellant’s App. p. 134. K.G.’s testimony, however, indicated that the incident occurred on September 26,
2018. Tr. Vol. 2, pp. 135–36. Gunn raises no argument about this variance between the information and the
proof adduced at trial. And it has long been held that time is not of the essence to a charge of child molesting.
Gaby v. State, 949 N.E.2d 870, 876 (Ind. Ct. App. 2011).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 9 of 12
A. Uhm, he was messing with, like the inside of it.
Q. And when you say “messing with the inside of it,” what
parts on his body were connecting with what parts on your
body, if that question[] makes sense?
A. His finger.
Q. And his finger was where?
A. On my vagina.
Q. When you say on your vagina, what do you mean?
A. The inside.
Q. The inside?
A. Yeah.
Q. And when this was happening, do you remember anything
about — what did that — what did that — uhm, what did
that feel like? Do you remember anything about that?
A. Weird.
Tr. pp. 136–37.
[19] During the State’s closing argument, the prosecuting attorney attempted to
distinguish the evidence supporting Count VII from that supporting Count VIII,
stating to the jury:
Count VII is the incident that I just described. The molest at the
Family video. She said — K.G.’s testimony was, again, while it’s
still dark, sitting out there in the parking lot, testimony was “for a
long time,” the defendant starts messing round with her vagina. I
had to ask her, K.G., what does that mean? What do you mean
messing around with your vagina? You saw her demeanor. She’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 10 of 12
talking about the incident and just as she gets close and having to
talk about what she has to talk about, she gets quiet, a little more
withdrawn, but she answers the question that she’s asked. “He
put his finger in my vagina.” That is her testimony. She said she
was on the phone texting a friend, she remembers everything that
happened around it. Her friend must have fallen asleep because
there was no more texting. And then, uh, she also said that her
siblings were asleep in the backseat of the car. Count VIII. This
is also for the Family Video. For what he was doing with her
vagina, quite frankly, before he put his finger in it. Messing
around with the vagina before the finger actually goes in.
Tr. Vol. 2, p. 225 (emphasis added).
[20] On appeal, the State similarly argues that the actual evidence supporting Count
VII was K.G.’s testimony that Gunn inserted his finger into her vagina,
whereas the evidence supporting Count VIII was K.G.’s testimony that Gunn
“started . . . messing with my vagina.” Tr. Vol. 2, p. 136. Based on this
evidence, and the prosecuting attorney’s argument distinguishing these acts, the
State argues that the jury relied on evidence of penetration separate from the
evidence of fondling to convict Gunn of Counts VII and VIII. We agree with
Gunn.
[21] K.G. did not testify that Gunn started “messing around” with her vagina, then
separately inserted his finger into her vagina. Instead, she testified that Gunn
started “messing around” with her vagina, and when asked what she meant by
“messing with [her] vagina,” K.G. explained that Gunn was “messing with . . .
the inside of it,” using his finger. Tr. pp. 136–37. In other words, K.G.’s
testimony regarding the “messing around” and the digital penetration describe
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 11 of 12
the very same act. We therefore conclude that there was a reasonable
probability that the jury relied on the same actual evidence to support Gunn’s
convictions on both Count VII and VIII. 3 To remedy this double-jeopardy
violation, we reverse Gunn’s conviction on the lesser offense of Level 4 felony
child molesting and remand with instructions that the trial court vacate the
judgment of conviction and the sentence entered on this count.4
Conclusion
[22] The State presented sufficient evidence to support Gunn’s conviction for Level
1 felony attempted child molesting. However, we agree with Gunn that his
convictions on amended Counts VII and VIII constitute double jeopardy. We
therefore reverse his conviction on amended Count VIII and remand with
instructions that the trial court vacate the judgment of conviction and the
sentence entered on this count.
[23] Affirmed in part, reversed in part, and remanded.
Riley, J., and Tavitas, J., concur.
3
We also note that, under the series of rules of statutory construction and common law that are often
described as “double jeopardy,” Gunn’s convictions on both Counts VII and VIII constitute, “[c]onviction
and punishment for a crime which consists of the very same act as another crime for which the defendant has
been convicted and punished.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson, 717
N.E.2d at 56 (Sullivan, J., concurring)). That is, under either the common-law test, or the actual evidence
test, Gunn’s convictions on both of these counts cannot stand.
4
The trial court ordered Gunn’s six-year sentence on amended Count VIII to be served concurrently with the
thirty-year sentenced imposed on amended Count VII. Tr. Vol. 3, pp. 63–64. Thus, Gunn’s aggregate
sentence should remain the same even after his sentence on amended Count VIII is vacated.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020 Page 12 of 12