Opinion
24A-JV-19
06-18-2024
J.O., Appellant-Respondent v. State of Indiana, Appellee-Petitioner
ATTORNEY FOR APPELLANT Audrey K. Lunsford Law Office of Mark Nicholson Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Stephen J. Koester, Judge Trial Court Cause No. 48C02-2302-JD-74
ATTORNEY FOR APPELLANT Audrey K. Lunsford Law Office of Mark Nicholson Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
Judges Crone and Tavitas concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] J.O. was found to be a delinquent child for committing what, if committed by an adult, would be Level 4 felony child molesting. J.O. challenges the sufficiency of the evidence to sustain the juvenile court's true finding, arguing that the victim's testimony was incredibly dubious. We affirm.
Facts and Procedural History
[¶2] Tiffany Merritt has four children: E.M., A.M., and twins A.H. and E.H. A.H., who was born in February of 2014, suffers from ADHD and dyslexia. As a result, A.H. has trouble with spelling and remembering facts such as his birth-date and address. A.H. also had sleeping problems and, at the time relevant to this appeal, took both a prescription medication and melatonin before bedtime. Phillip Ooley also has four children: J.O., born in April of 2008, who lived with him full-time, and three daughters with whom he had visitation-R.O., T.O., and A.O.
[¶3] In November of 2018, Merritt and Ooley began dating. Soon thereafter, they moved in together in an apartment in Lebanon. The couple tried to arrange visitation schedules so that all eight children were not staying in the apartment at the same time.
[¶4] In June of 2019, when A.H. was five years old and J.O. was eleven years old, the blended family moved into a house in Anderson. In this home, J.O. and A.H. shared a bedroom and slept in bunk beds, with A.H. sleeping on the top bunk and J.O. sleeping on the bottom bunk. On one evening when A.H. was in first grade, J.O. placed his mouth on A.H.'s penis when the boys were alone in their bedroom. On another occasion while A.H. was sleeping in his bed, A.H. awoke to J.O. crawling up onto A.H.'s bed, pulling down A.H.'s pants and underwear, and placing his mouth on A.H.'s penis. On yet another occasion, J.O. touched A.H.'s penis with his hand while also touching his own penis with his other hand. A.H. did not report J.O.'s action because he was afraid that J.O. "was going to blackmail" him. Tr. Vol. II p. 14. The molestation continued until A.H. was in third grade, when he reported J.O.'s actions following a "body safety" program at school. Tr. Vol. II p. 14.
[¶5] On March 10, 2023, the State filed a delinquency petition, in which it alleged that J.O. had committed what would be Level 4 felony child molesting if committed by an adult. The matter proceeded to a fact-finding hearing, during which both A.H. and J.O. testified, with A.H. outlining J.O.'s repeated molestation of him and J.O. denying that he had molested A.H. Following the conclusion of the fact-finding hearing, the juvenile court entered a true finding, noting the following:
1. [A.H.] was credible and his demeanor and words were age-appropriate.
a. His only inconsistencies seemed to be more of a product of the adult questioning he was receiving than any intent to deceive the Court or the questioners.
b. He gave specific and detailed accounts of what occurred between [J.O.] and himself.
2. [J.O.] took the stand and denied the allegations. a. [J.O.'s] demeanor was substantially different depending on the question. For example:
i. The Court noticed during innocuous questions, his demeanor was calm and unassuming.
ii. However, when asked whether he had touched [A.H.'s] penis, he appeared very nervous and blink[ed] furiously.
iii. Directly after that, when asked about [A.H.] seeing him in the shower, his blinking and demeanor appeared normal again.
iv. Shortly after, when asked about allegations of blackmail of [A.H.], he again seemed nervous and blinked furiously just after answering.
b. Based on the testimony and demeanor of [J.O.], the Court did not find his denials credible.Appellant's App. Vol. II p. 19. The juvenile court ordered that J.O. be placed on supervised probation with special conditions.
Discussion and Decision
[¶6] J.O. contends that the State produced insufficient evidence to sustain his juvenile adjudication. The standard of review for reviewing the sufficiency of the evidence to support a juvenile adjudication is the same as for reviewing the sufficiency of the evidence to support an adult criminal conviction. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind.Ct.App. 2001).
When reviewing a claim of sufficiency of the evidence with respect to juvenile adjudications, we do not reweigh the evidence or judge the credibility of witnesses. K.D. v. State, 754 N.E.2d 36, 38 (Ind.Ct.App. 2001). We look only to probative evidence supporting the adjudication and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the juvenile was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the adjudication, it will not be set aside. Id. The uncorroborated testimony of one witness may be sufficient by itself to sustain an adjudication of delinquency on appeal. J.D.P. v. State, 857 N.E.2d 1000, 1010 (Ind.Ct.App. 2006)[, trans. denied].D.W. v. State, 903 N.E.2d 966, 968 (Ind.Ct.App. 2009), trans. denied.
[¶7] In alleging that J.O. was a delinquent child for committing what would be Level 4 felony child molesting if committed by an adult, the State alleged that "[b]etween January 1, 2019 and November 10, 2022, [J.O.] did with [A.H.], a child under fourteen (14) years of age, to wit: [eight (8)] years of age, perform or submit to fondling or touching with intent to arouse or satisfy the sexual desires of [J.O.] or [A.H.]." Appellant's App. Vol. II p. 15. Indiana Code section 35-42-4-3(b) provides that
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, commits child molesting, a Level 4 felony.
In his testimony, A.H. outlined several acts by J.O. which would constitute acts of molestation. For his part, J.O. contends that the evidence was nonetheless insufficient to sustain the juvenile court's true finding because A.H.'s testimony was incredibly dubious.
[¶8] "Appellate courts may impinge upon [the fact-finder's] function to judge the credibility of a witness [_] by applying the 'incredible dubiosity' rule." Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015). "Application of the incredible dubiosity rule is limited to cases with very specific circumstances because we are extremely hesitant to invade the province of the jury." Id. "[T]o warrant application of the incredible dubiosity rule, there must be: '1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.'" Id. (quoting Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015)). Applying this rule to evidentiary challenges on appeal, "[w]e will reverse a conviction if the sole witness presents inherently improbable testimony and there is no circumstantial evidence of the defendant's guilt." Feyka v. State, 972 N.E.2d 387, 392 (Ind.Ct.App. 2012), trans. denied. "Application of the incredible dubiosity 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. (quoting Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007)).
[¶9] The juvenile court found A.H.'s testimony to be credible, noting that A.H.'s "demeanor and words were age-appropriate," his "only inconsistencies seemed to be more of a product of the adult questioning he was receiving than any intent to deceive the Court or the questioners," and he "gave specific and detailed accounts of what occurred between [J.O.] and himself." Appellant's App. Vol. II p. 19. J.O. argues the opposite on appeal, claiming that A.H.'s testimony "was inherently contradictory and equivocal and" ran counter to the human experience such that no reasonable person could believe it. Appellant's Br. p. 13. We cannot agree.
[¶10] In support of his claim that A.H.'s testimony was so incredibly dubious that it could not be believed, J.O. points to the fact that A.H. testified that he could not remember certain basic facts such as his date of birth, address, the name of his school, and A.O.'s first name. While A.H. acknowledged that he could not remember these basic facts, Merritt testified that A.H. suffered from ADHD, dyslexia, and sleep problems, which caused him to struggle with spelling and to remember dates and addresses. As for the name of his school, the record indicates A.H. testified that he had previously attended school in Anderson but that he had just started the school year at a new school. Furthermore, as it relates to A.O.'s first name, the record demonstrated that A.O. did not live in the same house as A.H. and rarely visited her father when A.H. was present in the home. Given that each of the explanations for A.H.'s memory issues is present in the record, we agree with the State that "[t]he juvenile court had these simple explanations in mind when assessing A.H.'s credibility." Appellee's Br. p. 9.
[¶11] J.O. also points to multiple instances where A.H. admitted to lying, claiming that because he had lied in some limited circumstances, his overall testimony was so incredibly dubious that it could not be believed. When pressed about apparent lies in his testimony relating to iPad usage, taking his sleep medication, and allegations against A.O., A.H. had admitted that he had lied about his iPad usage and about taking his sleep medication because he had not wanted to get in trouble for using an unauthorized application on his iPad or for failing to take his medication. As it related to his unsubstantiated allegations against A.O., A.H. admitted that he had misremembered some facts in his allegations against A.O., which had led to him lying about the number of alleged encounters between himself and A.O.
A.H. had also alleged that A.O. had molested him, claiming that J.O. had told him that she had done so and that he remembered the acts. However, as the juvenile court found in entering a not true finding against A.O., A.H.'s testimony regarding A.O. was "much less detailed with more inconsistencies" than his testimony regarding J.O. Appellant's App. Vol. II p. 19. Again, the juvenile court was in the best position to judge A.H.'s credibility in this regard. See D.W., 903 N.E.2d at 968.
[¶12] As it relates to his allegations against J.O., we conclude that A.H.'s testimony is not so incredibly dubious as to warrant our intervention into the juvenile court's credibility determination. As it related to J.O., A.H.'s testimony was consistent and not so inherently improbable that no reasonable person could believe it. As the juvenile court noted, A.H. clearly described multiple sexual encounters with J.O., using age-appropriate words and phrases. In outlining the sexual encounters with J.O., A.H. testified that each act had occurred at night in the bedroom he and J.O. had shared. A.H. only waivered at one point when asked about the number of times J.O. had molested him, with A.H. admitting that he could not remember the exact number of times that J.O. had engaged in sexual activity with him. We agree with the State that the testimony in question "had to do with the number of times [J.O.] molested him, not whether the molest[ation] happened at all." Appellee's Br. p. 11 (emphases in original). In Feyka, we concluded that although the child victim had made some conflicting and inconsistent statements, the child victim's testimony was not incredibly dubious. 972 N.E.2d at 393-94. Similarly, we cannot say that A.H.'s testimony was incredibly dubious as he clearly and consistently testified to J.O.'s actions. J.O.'s sufficiency challenge is therefore nothing more than an invitation for this court to reweigh the evidence, which we will not do. See D.W., 903 N.E.2d at 968.
[¶13] The judgment of the juvenile court is affirmed.
Crone, J., and Tavitas, J., concur.