Opinion
24A-CR-1558
12-26-2024
John J. Keyser, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Alexander L. Hoover Alexander L. Hoover & Associates, LLC Plymouth, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marshall Superior Court The Honorable Robert O. Bowen, Judge Trial Court Cause No. 50D01-2206-F4-11
ATTORNEY FOR APPELLANT
Alexander L. Hoover
Alexander L. Hoover & Associates, LLC
Plymouth, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
Judges Brown and Kenworthy concur.
MEMORANDUM DECISION
Mathias, Judge.
[¶1] A jury found John J. Keyser guilty of Level 1 felony child molesting and Level 4 felony child molesting. The Marshall Superior Court entered judgment of conviction and ordered Keyser to serve an aggregate sentence of thirty years in the Department of Correction. Keyser appeals his convictions and challenges the sufficiency of the evidence against him.
[¶2] We affirm.
Facts and Procedural History
[¶3] During the summer of 2021, Keyser and his wife had a thirty-foot camping trailer located at a campground in Bremen that they often visited. Keyser's ten-year-old step-granddaughter (hereinafter "Victim") would often visit Keyser and her grandmother at the campground. Victim and her siblings also stayed overnight in the trailer at least three times that summer.
[¶4] On multiple occasions when Victim visited the campground, Keyser touched Victim's breasts underneath her clothing. Tr. Vol. 3, p. 60. On one occasion, while her grandmother was outside the trailer, Victim was with Keyser in the living area of the trailer watching a movie. Keyser asked Victim to lie with him on the couch. Victim complied, and Keyser covered them with a blanket before penetrating her vagina with his finger. Id. at 58-59.
[¶5] Victim did not initially disclose the molestations because she was afraid her parents would be angry. During Thanksgiving and Christmas 2021, Victim's mother and sister observed Victim acting odd around Keyser and that Victim spent more time alone than normal. A few months later, in April 2022, Victim finally disclosed the molestations to her older sister, who then told Victim's parents.
[¶6] Law enforcement officers conducted a forensic interview with Victim. Victim described the incident that occurred on the couch inside the camper. Victim told the interviewer that Keyser put his hand inside her pants but did not disclose that Keyser had penetrated her vagina with his finger. Victim also told the officers that, on one occasion in summer 2021, she was asleep in the recliner and awoke to Keyser attempting to unbuckle her overalls. The overall strap was no longer on her shoulder, so she put the strap back on her shoulder. Keyser then left the living area and walked into his bedroom.
[¶7] The State initially charged Keyser with two counts of Level 4 felony child molesting. Keyser denied the allegations and claimed that Victim only spent the night at the trailer on one date in 2021.
[¶8] Before trial, Victim disclosed to the State that Keyser penetrated her vagina with his finger while they laid on the couch together during the incident she had previously disclosed. Thereafter, the State filed an amended charging information that alleged Keyser had committed Level 1 felony child molesting and Level 4 felony child molesting.
[¶9] Keyser's two-day jury trial commenced on April 23, 2024. Defense counsel cross-examined Victim concerning the inconsistencies between her statements at trial and her disclosures to the forensic interviewer. Tr. Vol. 3, pp. 84-90. Victim explained that she did not disclose to the forensic interviewer that Keyser had penetrated her vagina with his finger because she was nervous and uncomfortable talking about the incident with a stranger. Id. at 92-93, 96.
[¶10] The jury found Keyser guilty as charged. On June 4, the trial court ordered Keyser to serve an aggregate thirty-year sentence. Keyser now appeals.
Discussion and Decision
[¶11] On appeal, Keyser argues that the State failed to present sufficient evidence to support his convictions. For challenges to the sufficiency of the evidence, we consider only the probative evidence and the reasonable inferences therefrom that support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will neither reweigh the evidence nor judge witness credibility. Id. We will affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
[¶12] To prove that Keyser committed Level 1 felony child molesting, the State was required to prove beyond a reasonable doubt that Keyser, who was over twenty-one years old, knowingly or intentionally engaged in other sexual conduct, i.e., penetrated Victim's vagina with his finger, when Victim was less than fourteen years old. Appellant's App. Vol. 2, p. 189; see also Ind. Code § 35-42-4-3(a). And to prove that Keyser committed Level 4 felony child molesting, the State was required to prove beyond a reasonable doubt that Keyser "did perform or submit to fondling or touching with [Victim], a child under the age of fourteen years, that is [Victim] being born December 7, 2010, with the intent to arouse or satisfy the sexual desires of the child or defendant ...." Id.; see also I.C. 35-42-4-3(b).
Indiana Code section 35-31.5-2-221.5 defines "other sexual conduct" as "an act involving . . . a sex organ of one (1) person and the mouth or anus of another person; or . . . the penetration of the sex organ or anus of a person by an object."
[¶13] Keyser first argues that the evidence is insufficient to support his convictions because Victim's testimony was incredibly dubious. Indiana's appellate courts may impinge upon a fact-finder's function to judge the credibility of a witness under 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 fact-finder. Id. Thus, to 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)).
[¶14] Keyser directs our attention to inconsistencies between Victim's statements to the forensic interviewer and her testimony at trial. Those statements included Victim's description of Keyser unbuckling her overalls versus pulling down the strap of her overalls. In addition, Victim did not tell the interviewer that Keyser had penetrated her vagina with his finger, but she later made that disclosure to the prosecutor. Victim also forgot that she had made a statement about removing Keyser's hand from her pants during the incident when he touched her vagina, and she was confused about the timing of the molestations, which occurred approximately three years prior to trial. But, contrary to Keyser's arguments on appeal, nothing about Victim's statements are so inherently contradictory or equivocal that they render Victim's testimony incredibly dubious. And Keyser cross-examined Victim about the purported inconsistent statements at trial.
[¶15] Keyser also argues that the evidence is insufficient to support his convictions because Victim's testimony is the only evidence that supports his convictions. However, "[a] victim's testimony, even if uncorroborated, is ordinarily sufficient to sustain a conviction for child molesting." Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000). Keyser also cites his wife's testimony that, due to the size of the trailer and her proximity to Keyser at all times, Victim's testimony was not credible. But these arguments are simply a request to reweigh the evidence and the credibility of the witnesses, which we will not do. See Hall, 177 N.E.3d at 1191.
[¶16] For all of these reasons, we conclude that Keyser's Level 1 felony and Level 4 felony child molesting convictions are supported by sufficient evidence.
[¶17] Affirmed.
Brown, J., and Kenworthy, J., concur.