Opinion
24A-CR-249
10-15-2024
Terrance M. King, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable David M. Zent, Judge Trial Court Cause No. 02D06-2208-F1-29
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ROBB, SENIOR JUDGE.
Case Synopsis
[¶1] Terrance M. King was convicted of three counts of Level 1 felony child molesting, and two counts of Level 4 felony child molesting. In phase two of the trial, King was found to be a repeat sexual offender. King was also found to be a credit restricted felon. The trial court sentenced King to an aggregate sentence of one hundred fifty-four years executed. King appeals, claiming (1) the trial court erred by admitting a letter into evidence, (2) the evidence is insufficient to support his convictions because the victims' testimony was incredibly dubious, and (3) his sentence is inappropriate. Concluding that there is no evidentiary error, the evidence is sufficient, and he has not demonstrated that his sentence is inappropriate, we affirm.
Facts and Procedural History
[¶2] Mother has five children. D.T., her oldest, was born in 2009 and was not fathered by King. The other children, including S.K., who was born in 2010, and M.K. who was born in 2015, were fathered by King. Mother and King's relationship ended in 2015; but even after the relationship ended, King exercised parenting time with all five of the children every other weekend, would supervise the children at other times, and occasionally lived with the children and Mother.
[¶3] King began molesting D.T. when she was nine years old. King first abused her when she and her siblings were staying with him for an overnight visit at his cousin Cora's house. D.T. was sleeping alone in a bedroom when she awakened to King touching her. He was on top of her and touched her vagina with his penis. King told her, "shh be quiet" and then stopped because his cousin entered the room. Tr. Vol. 2, p. 143.
[¶4] Several incidents of abuse continued over a period of three years, happening at D.T.'s home, King's grandmother's home, his girlfriend's apartment, and at the home of his girlfriend's sister. During more than one of those occurrences, King "forced [D.T.] to give him a blow job" by "forc[ing] her head down" with his penis in her mouth. Id. at 144-45. D.T. felt "kind of disgusted because [she] already had one father that [she] couldn't trust and the fact that he came into [her] life being a father figure and did that, it made [her] feel disgusted." Id. at 145. King also fondled D.T.'s breasts and would "touch all over [her] vagina and like move his fingers around it." Id. at 144. She testified that she "didn't like the way it felt.... I wanted it to stop." Id. at 146.
[¶5] One day in February 2022, D.T. was home from school because of a disciplinary issue. Because D.T.'s younger brother M.K. was not feeling well, King collected him from school and took him to Mother's home. King went up to D.T.'s bedroom, removed her clothing and was getting on top of her when D.T. noticed M.K. peeking through the bars in the stairway. He then began to make noise to warn them he was coming upstairs. King quickly dressed, and D.T. went into the bathroom. M.K., who was eight years old at the time of trial, remembered being home from school because he was sick and hearing the sound of a bed moving upstairs. He went upstairs and observed King with his "pants and drawers" down in D.T.'s bedroom. Id. at 192. King asked M.K. "what the f you doing upstairs" and appeared nervous when he looked at M.K. Id. at 191. M.K. returned downstairs.
[¶6] The last time King molested D.T. was in March 2022 at his girlfriend's apartment. King collected D.T. from school early due to a disciplinary issue and took her to his girlfriend's apartment. Once there, King forced D.T. to perform fellatio on him and he then removed their clothing. D.T. laid on her stomach while King "started moving his fingers around [her] vagina" and "tried to stick his penis inside [her] vagina[,]" which hurt and she "didn't like it." Id. at 148. D.T. pushed King away and told him that she needed to go home.
[¶7] King started molesting S.K. when she was around ten years old and in either the fourth or fifth grade. The first incident of abuse occurred when the children were staying with King at his cousin Cora's house. King called S.K. into the bedroom, pulled her pants down, had her get on her knees and he "put his dick inside [her] butthole." Id. at 168. King's clothing was down by his feet during the abuse. Physically, the act made her "butthole" feel "uncomfortable" while emotionally, the act made her feel sad. Id. at 169.
[¶8] King engaged in similar acts of abuse involving S.K. at Mother's home, at King's girlfriend's apartment, and at King's girlfriend's sister's home. King abused S.K. for the last time at his girlfriend's apartment. S.K. was eleven years old at the time. S.K. and King were in the living room and her siblings were in a different room. S.K. was on her knees playing games on King's phone when King made her pull her pants down. King was on his knees when he stuck "his dick into [her] butthole." Id. at 172. S.K. said each time King abused her it continued until he "was done" and that he would have her pull her pants up. Id. at 175.
[¶9] D.T. texted Mother in March 2022, disclosing King's abuse. D.T. also wrote a letter to her describing King's conduct. She did so because she "was just too scared to like actually talk about it" so she "wrote it down and gave [the letter] to [her] mom." Id. at 213. S.K. was with her dance coach on March 10, 2022 when Mother contacted the dance coach about D.T.'s disclosure. After talking to Mother, S.K.'s coach questioned S.K., and she answered her coach's questions. When she was answering the questions, she appeared to be "nervous or kind of like scared" with "glossy and big" eyes. Id. at 198. Mother said that when they were face-to-face discussing the abuse, D.T. appeared to be sad and S.K. appeared to be nervous.
[¶10] King's girlfriend learned about the disclosures from Mother. King's girlfriend texted Mother that King did not want to involve the police. She texted:
Yo baby daddy said he would like for u to talk to him [a]nd he d[o]nt want to get the police involved he would [like] to work it out between u before getting them involved
Ex. Conf. Vol. 1, p. 6 (State's Ex. 2).
[¶11] Mother reported the abuse to the police. Officers responded and talked with the children. A responding officer described D.T. as scared and probably nervous, while S.K. was scared and unwilling to talk. Both girls received physical examinations and underwent forensic interviews. D.T. told the nurse that her stepdad forced her to "give him a BJ" and put "his private inside" her vagina or tried to multiple times. Id. at 24 (State's Ex. 6). S.K. told the nurse that her dad "would squeeze [her] boobs under clothes" and put "his dick" "in our buttholes" five or six times. Id. at 15 (State's Ex. 5). King's statement to police confirmed that he watched the children and picked them up from school.
[¶12] The State charged King with three counts of Level 1 felony child molesting, two counts of Level 4 felony child molesting, and he was alleged to be a repeat sexual offender. Both girls testified at trial about King's abuse. Mother also testified about changes in the girls' behavior during the period of time during which the abuse occurred. The jury found King guilty as charged.
[¶13] The trial court sentenced King to an aggregate sentence of one hundred fifty-four years. The court found King's criminal history, failed prior attempts at rehabilitation, the revocation of home detention twice, the revocation of a prior suspended sentence, and the violation of his position of trust as aggravating circumstances. The court found no mitigating circumstances. King now appeals.
Discussion and Decision
I. Admission of Evidence
[¶14] King argues that the trial court erred by admitting into evidence the letter D.T. wrote to Mother. More specifically, he contends that because D.T. twice disavowed authorship of the letter, "this equivocation prevents the exhibit from being properly authenticated" under Evidence Rule 901. Appellant's Br. p. 14. Additionally, he claims the letter was improperly admitted because it contained hearsay.
[¶15] "A trial court has broad discretion to rule on the admissibility of evidence." Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). "We review its rulings 'for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.'" Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)). And "[w]hen deciding whether to admit evidence, the court must decide any question of fact by a preponderance of the evidence." Ind. Evidence Rule 103(f).
[¶16] Evidence Rule 901(a) states, "To satisfy the requirement of authentication or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." One type of evidence which satisfies this requirement is the testimony of a witness with knowledge "that an item is what it is claimed to be[.]" Evid. Rule 901(b)(1). "'Absolute proof of authenticity is not required.'" Wilson v. State, 30 N.E.3d 1264, 1268 (Ind.Ct.App. 2015) (quoting Fry v. State, 885 N.E.2d 742, 748 (Ind.Ct.App. 2008), trans. denied), trans. denied. "'Once this reasonable probability is shown, any inconclusiveness regarding the exhibit's connection with the events at issue goes to the exhibit's weight, not its admissibility.'" Id. (quoting Pavlovich v. State, 6 N.E.3d 969, 976 (Ind.Ct.App. 2014), trans. denied). And "'authentication of an exhibit can be established by either direct or circumstantial evidence.'" Id.
[¶17] King's objection at trial was that the State was "trying to admit [the letter] without 100% certain[ty]." Tr. Vol. 2, p. 214. But here, D.T. looked at State's Exhibit 1, her letter to Mother, and identified it as "a letter about how [she] felt and [she] was just too scared to actually talk about [the abuse]...." Id. at 213. She testified that she wrote the letter because "my voice couldn't [sic] been heard so instead of like keeping it all inside I just wrote it down[.]" Id. When questioned why she had disavowed writing the letter in her prior testimony on direct and cross examination, she said "I didn't recall writing it. It's been so many years that I wasn't really thinking about like everything including like the letter and just certain other stuff that I wasn't thinking about yesterday." Id. at 214. She also clarified that although there were two names on the letter, hers and S.K.'s, she had written the letter. Thus, the trial court did not abuse its discretion in admitting the letter because it was properly authenticated by direct testimony from D.T., the author.
[¶18] King's additional objection at trial was "that she can testify to the (inaudible) would be hearsay." Id. at 214-15. The State responded with reference to an appellate decision allowing the admission of a letter under seemingly similar circumstances.
[¶19] The case cited by the State at trial was likely Heinzman v. State, 970 N.E.2d 214, (Ind.Ct.App. 2012), affirmed in relevant part 979 N.E.2d 143 (Ind. 2012), because of the reference to the victim Z.B. and because the hearsay issue in that case was similar to the issue here. In Heinzman, the victim, Z.B., wrote a letter addressed to Heinzman, his abuser, but never sent it. When the State introduced the letter, Heinzman objected on hearsay grounds. His argument was that the letter was offered to prove the facts of Heinzman's abuse as memorialized in the letter. We held that the letter was admissible under the exception to the hearsay rule for statements describing Z.B.'s then-existing state of mind and emotions under Evidence Rule 803(3). 970 N.E.2d at 224. Although the letter included indirect references to Heinzman's abuse of Z.B., the Court concluded there was no harm caused by the admission of those references because Z.B. had already testified clearly and directly about Heinzman's actions. Id.
[¶20] Here, D.T. and S.K. testified directly about King's abuse. And other evidence, State's Exhibits 5 and 6, contained D.T.'s and S.K.'s accounts about King's abuse which they made to the forensic nurse examiner. Thus, the letter was cumulative of D.T. and S.K.'s direct testimony and other properly admitted evidence. Consequently, here, as in Heinzman, the admission of the letter was harmless.
[¶21] On appeal, King argues that "assuming D.T. wrote the document in conjunction with S.K., D.T. could have testified as to which of the allegations she sponsored and S.K could have done likewise." Id. King further argues "[t]hen cross examination could have fairly and properly taken place." Id. He claims that "the jury was allowed to simply examine Exhibit 1 without having any context associated to what each co-signer contributed to the document." Id.
[¶22] King did not make this specific objection at trial; therefore, the argument is waived. Waiver notwithstanding, S.K. testified at trial, albeit reluctantly, and her statements to the forensic nurse examiner about King's abuse were admitted through State's Exhibit 5. Although D.T.'s and S.K.'s names are on the letter, D.T. testified that she alone wrote the letter. Therefore, there was no harm to King through the admission of the letter even if for the truth of the memorialized facts.
[¶23] We conclude that the trial court did not abuse its discretion by admitting D.T.'s letter into evidence and that any question about its connection to King's abuse of D.T. and S.K. goes to the weight to be given to the evidence and not to its admissibility.
II. Sufficiency of the Evidence
[¶24] Next, King contends there is insufficient evidence to support his convictions because the victims' testimony is incredibly dubious. King additionally argues there is insufficient evidence to support his conviction for fondling S.K. because there is no evidence of the same. We address each contention in turn.
[¶25] '"When reviewing the sufficiency of the evidence to support a conviction, 'appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict.'" Moore v. State, 27 N.E.3d 749, 754 (Ind. 2015) (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). "Reviewing courts should not 'assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.'" Id. "Convictions should be affirmed unless 'no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.'" Id. (quoting Drane, 867 N.E.2d at 146-47).
[¶26] In general, the uncorroborated testimony of the victim is sufficient to sustain a conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We may make an exception, however, when that testimony is incredibly dubious. The incredible dubiosity rule allows the reviewing court to impinge upon the factfinder's responsibility to judge the credibility of witnesses when confronted with evidence that is "so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone." Moore, 27 N.E.3d at 751. The rule is applied in limited circumstances, namely where there is "[(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. at 756. 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." Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). "[W]hile incredible dubiosity provides a standard that is 'not impossible' to meet, it is a 'difficult standard to meet, [and] one that requires great ambiguity and inconsistency in the evidence.'" Moore, 27 N.E.3d at 756 (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).
[¶27] King claims that D.T.'s testimony was incredibly dubious because she twice denied authoring State's Exhibit 1, a letter written to Mother. He contends that if she did not write the letter, "she lied once under oath and her testimony is contradictory, equivocal, and perjurious ...." Appellant's Br. p. 22. If she did write the letter, "she lied twice under oath and the testimony is contradictory, equivocal, and perjurious." Id. As for S.K.'s testimony, he contends that though it may be consistent, it "is inherently improbable and runs counter to human experience and no reasonable person would believe it." Id. More specifically, he claims, "it would be inherently improbable, if not impossible for anal penetration to occur as S.K. described .... [because it] runs counter to human experience and no reasonable person could believe it." Id. at 24. He also contends that there is no circumstantial evidence to corroborate their testimony.
[¶28] We have already addressed King's arguments regarding D.T.'s letter to Mother. Insofar as she twice disavowed authorship of the letter, King's arguments along those lines call for an independent assessment of D.T.'s credibility, a task we will not undertake on appeal. See Moore, 27 N.E.3d at 754. Furthermore, there was corroborating evidence presented through M.K.'s testimony. And D.T's trial testimony was consistent with her statements to the forensic nurse examiner, admitted at trial as State's Exhibit 6. King's claim fails as to D.T. D.T.'s testimony was not incredibly dubious.
[¶29] As to S.K., King concedes that she was consistent in her version of events. He claims that we should discredit it, however, because it is inherently improbable that he could have engaged in anal intercourse with her under the circumstances. But S.K. testified that she was on the "edge of the bed" with her knees on the floor during two encounters and was on her knees during a third encounter during which King was also on his knees when the anal penetration occurred. Tr. Vol. 2, p.168. King has not explained how S.K.'s description of the abuse is contrary to human experience. And there is corroborating evidence in terms of S.K.'s change in demeanor when disclosing the crimes. Consequently, King has not surpassed the high hurdle of showing that there is great ambiguity and inconsistency in the evidence.
[¶30] King also challenges the sufficiency of the evidence supporting his conviction for Level 4 felony child molesting as to S.K. To establish the offense, the State was required to prove beyond a reasonable doubt that King, with S.K., who was under fourteen years of age, performed any fondling of S.K. with intent to arouse or to satisfy S.K.'s or King's sexual desires. Ind. Code § 35-42-4-3(b) (2022). King contends there is insufficient evidence to support his conviction because "S.K.'s testimony does not reveal any evidence of fondling." Appellant's Br. p. 25. We disagree.
[¶31] State's Exhibit 5 is the pediatric medical forensic examination form which was completed during S.K.'s interview. The forensic nurse examiner noted that "patient disclosed penile/anal penetration and breast fondling." Ex. Conf. Vol. 1, p. 19. When asked if anything had happened to her body, S.K. informed the forensic nurse examiner that in addition to the anal penetration, King "would squeeze my boobs under clothes." Id. at 15. This exhibit was admitted without objection and was before the jury for its consideration. Thus, there is sufficient evidence of fondling in the record to support King's conviction.
We observe that admission of a statement made for treatment at a forensic examination of a child molestation victim requires evidence that the victim understood the statement was being made for purposes of treatment. See Van Patten v. State, 986 N.E.2d 255, 261 (Ind. 2013). King did not object to the evidence. But we note that Exhibit 5 contains the notation that S.K. "expressed understanding" that "she is here for medical examination and treatment." Ex. Conf. Vol. 1, p. 15 (State's Ex. 5, p. 3). And the forensic examination interview form included discharge recommendations regarding counseling and medical testing. Id. at 20-21.
[¶32] For all of the foregoing reasons, we conclude there is sufficient evidence to support King's convictions.
III. Inappropriate Sentence
[¶33] King challenges the appropriateness of his one hundred fifty-four-year aggregate sentence, alleging that each sentence is inappropriate and that "the stacking of each and every count to arrive" at the sentence "is likewise inappropriate and vindictive." Appellant's Br. p. 26.
[¶34] Indiana Appellate Rule 7(B) authorizes us to revise a sentence if we determine it to be inappropriate in light of the nature of the offense and the character of the offender. Although Rule 7(B) requires us to consider both of these factors, the appellant is not required to prove that each of them independently renders his sentence inappropriate. Turkette v. State, 151 N.E.3d 782, 786 (Ind.Ct.App. 2020), trans. denied. Rather, they are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. Id.; see also Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (confirming that while reviewing courts must consider both factors, defendant need not necessarily prove sentence is inappropriate on both counts). Our determination "turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for rare and exceptional cases. Wilmsen v. State, 181 N.E.3d 469, 472 (Ind.Ct.App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)).
[¶35] Our Supreme Court has long said that sentencing is "'principally a discretionary function in which the trial court's judgment should receive considerable deference.'" Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1222). This deference prevails unless overcome by "'compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).'" Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind.Ct.App. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind.Ct.App. 2020), trans. denied.
[¶36] Our analysis of the nature of the offense begins with the advisory sentence, as it is the starting point selected by the legislature as an appropriate sentence for the crime. Reis v. State, 88 N.E.3d 1099, 1104 (Ind.Ct.App. 2017). King was convicted of three counts of Level 1 felony child molesting, and two counts of Level 4 felony child molesting. However, King also qualifies for credit restricted felon status. As such, the sentencing range for his Level 1 felony child molesting convictions is between twenty and fifty years with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c) (2014). The sentencing range for a Level 4 felony is between two and twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2014). Additionally, King faced an enhancement of up to ten years for being a repeat sexual offender. Ind. Code § 35-50-2-14(f) (2020).
[¶37] King received forty-year sentences for all three counts of Level 1 felony child molesting and the first count was enhanced by ten years due to his repeat sex offender status. He received twelve-year sentences for his two Level 4 felony convictions. And the counts were to be served consecutively for an aggregate sentence of one hundred fifty-four years.
[¶38] King molested both D.T. and S.K. for an extended period of time between late September 2018 to early March 2022. His abuse included acts of oral, vaginal, and anal penetration. King took advantage of his parental visitation rights and Mother's trust to facilitate the crimes. D.T. indicated that King was intoxicated some of the times he abused her and made threatening statements that something bad would happen if she reported the abuse. D.T. also described the forcefulness with which King made her engage in fellatio with him and the painfulness of his attempts at vaginal penetration. Mother testified that both girls' behavior changed, indicative of the emotional harm caused by King's abuse as well. Furthermore, D.T. testified that she disclosed King's conduct because she recognized that holding her emotions inside was causing her to act out and lose control. And King attempted to avoid responsibility by asking Mother not to report the matter to law enforcement. The nature of the offense does not support a downward reduction in King's sentence.
[¶39] As for King's character, our analysis involves a broad consideration of a defendant's qualities, including age, criminal history, background, past rehabilitative efforts, and remorse. Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). King's criminal history included five misdemeanor convictions and two prior felony convictions. His prior felony convictions were for sexual misconduct with a minor and failure to register as a sex offender. Furthermore, he had an informal juvenile adjustment for battery, two revocations of home detention, revocation of probation, and revocation of a suspended sentence. Additionally, King violated his position of trust with his daughter and step- daughter. King's character does not support a downward reduction in his sentence.
[¶40] Though King characterizes his sentence as "vindictive," he did not receive the maximum sentence available for his crimes. The maximum sentencing exposure for his offenses is one hundred ninety-four years. His sentence is forty years shy of the maximum sentence which could have been imposed. Though his sentence is lengthy, King has not demonstrated that it is inappropriate in light of the nature of the offenses and his character.
Conclusion
[¶41] In light of the foregoing, we affirm King's convictions and sentence.
[¶42] Affirmed.
Bailey, J., and Tavitas, J., concur.