Opinion
24A-CR-151
08-06-2024
Gregory Lee Sebastian, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
ATTORNEY FOR APPELLANT Mark S. Lenyo South Bend, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 St. Joseph Superior Court The Honorable Elizabeth C. Hurley, Judge Trial Court Cause No. 71D08-2306-F4-52
ATTORNEY FOR APPELLANT
Mark S. Lenyo
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Daylon L. Welliver
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
MATHIAS, JUDGE.
[¶1] Gregory Lee Sebastian appeals his two Level 4 felony child molesting convictions. He argues that the victim's testimony was incredibly dubious, and therefore, the evidence is insufficient to support his convictions.
[¶2] We affirm.
Facts and Procedural History
[¶3] Sebastian is married to Heather Sebastian and they have four children: three biological sons and K.S., their adopted daughter who is also Sebastian's biological niece. In 2023, Sebastian and his wife also had a foster son. The family lived together in a four-bedroom farmhouse. The parents, thirteen-year-old K.S., and two of the brothers slept in the three upstairs bedrooms. K.S. did not share her bedroom. The other two boys slept in the basement. Sebastian's mother lived with the family and slept in a bedroom on the first floor.
[¶4] Sebastian typically woke the children before leaving for work in the mornings. In April or May 2023, to wake up K.S., Sebastian began sitting on K.S.'s bed and scratching her back. K.S. enjoyed having her back scratched. Sebastian was typically dressed in his robe and underwear. K.S. often wore a t-shirt or bra and leggings to bed.
[¶5] After several days, instead of sitting on K.S.'s bed, Sebastian began laying on the bed under the covers with K.S. Sebastian would lay on his side while scratching K.S.'s back and talking to her. One morning, Sebastian unfastened K.S.'s bra and continued to scratch her back. Before he left her room that morning, Sebastian refastened the bra, turned K.S. toward him, and told her not to tell anybody he was in her room in the mornings because people "might think [he was] doing something bad." Tr. p. 76.
[¶6] The next morning, after scratching K.S.'s back, Sebastian asked K.S. to take off her leggings. He then asked K.S. to give him a hug. Sebastian was laying on his side and K.S. turned towards him and hugged him. Sebastian then began "rubbing his private parts against" hers. Id. at 78. K.S. could feel that his robe was open in the front and his legs were bare. K.S. described feeling a "bulge" that was not soft but not hard. Id. at 81. Sebastian said that they could not get any closer than they were because he "would go to jail." Id. at 92. He told K.S. their lives would be ruined if he went to jail. Id.
[¶7] The following morning, a similar incident occurred. K.S. only had underwear on to sleep in. Sebastian once again asked K.S. for a hug. However, instead of laying on his side, he positioned himself on top of K.S., and then "rubb[ed] his private parts" against hers. Id. at 85. Sebastian was breathing hard and he was on top of K.S. for thirty to sixty seconds. Id. at 86. Sebastian then apologized to K.S. and said "I don't know why I'm doing this" before exiting her room. Id.
[¶8] K.S. described a third incident that occurred at approximately 1:30 a.m., one week before she disclosed the molestations. K.S. could not see Sebastian because it was very dark in her room. But she believed it was him due to his size and the robe he was wearing. This time Sebastian "rubb[ed] his private parts" . . . "up against [K.S.'s] butt." Id. at 89. He then asked K.S., "[i]s this what you really want?" Id. at 91. After that incident, K.S. began locking her door at night. Id. at 93.
[¶9] On May 30, 2023, K.S. disclosed the molestations to Heather while Sebastian was at work. K.S. was upset that day because Sebastian had yelled at her for failing to take care of her animals and because of a troubling situation involving her best friend and her brother. During the conversation with Heather about K.S.'s fight with Sebastian, Heather said to K.S. that Sebastian was "going through a lot right now too." Id. at 94. Heather's statement upset K.S., and she told Heather that Sebastian had done things to her "that he should never have done." Id. K.S. initially refused to say anything else, but she eventually disclosed the molestations. Id.
[¶10] Heather decided to speak to her pastor and his wife, with whom she and Sebastian were very close. Heather asked Sebastian to meet her at the pastor's office. When they met with the pastor, Sebastian denied K.S.'s allegations. However, later in the car, he told Heather that he had lain in K.S.'s bed several times, but he did not want to tell the pastor because the pastor was a mandatory reporter. Id. at 41. Sebastian continued to deny molesting K.S. Later that night, Heather reported the molestations to the Department of Child Services.
[¶11] The State charged Sebastian with two counts of Level 4 felony child molesting. Sebastian's two-day jury trial commenced on November 14, 2023. The jury found Sebastian guilty as charged. The trial court held his sentencing hearing on December 18, 2023. The court ordered Sebastian to serve two concurrent terms of six years on each count with two years executed in the Department of Correction and four years suspended to probation with special conditions.
[¶12] Sebastian now appeals.
Discussion and Decision
[¶13] Sebastian argues that K.S.'s testimony was incredibly dubious and, therefore, that the State failed to prove that he committed child molesting.
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." Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). Reviewing courts should not "assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction." Drane, 867 N.E.2d at 146 (citing Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005)). Convictions should be affirmed unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Drane, 867 N.E.2d at 146-47 (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).Moore v. State, 27 N.E.3d 749, 754 (Ind. 2015). Importantly, "[a] conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim." Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
[¶14] Sebastian acknowledges the jury's role in determining the credibility of witnesses but argues that K.S.'s testimony was incredibly dubious, and therefore, it cannot support his conviction. The "incredible dubiosity rule" impinges upon the jury's responsibility to judge the credibility of the witnesses and thus is limited in scope. Moore, 27 N.E.3d at 755. For this reason, it only applies 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.
[¶15] K.S. was the only witness who testified concerning the molestation. But she unequivocally testified that on two separate dates Sebastian entered her bedroom in the morning, that he was dressed in his robe and underwear, and that he joined her in her bed under the covers. He then rubbed his "private parts" against her "private parts." Tr. pp. 77-79, 85-86. During the first incident, Sebastian asked K.S. to take off her leggings and give him a hug before he proceeded to molest her. Id. at 77. He told her they could "not get closer" than they were because he could go to jail, which would ruin their lives. Id. at 92. During the second incident, Sebastian asked K.S. to give him a hug, and then he positioned himself on top of her. Id. at 85-86. K.S. stated that Sebastian was breathing hard while he "rubbed" his private parts against hers for approximately one minute. Id. K.S. testified that when the molestation stopped, Sebastian apologized to her and said, "I don't know why I'm doing this." Id. at 86. K.S. also testified to a third occasion that occurred around 1:30 a.m. approximately a week before she disclosed the molestation. K.S. stated that Sebastian got into her bed and rubbed his "private parts" against her buttocks. Id. at 89. That evidence is sufficient to support Sebastian's convictions.
[¶16] The fact that K.S. was confused about the precise timing of the first two incidents and whether they occurred in April and/or May does not render her testimony incredibly dubious. K.S. also testified to additional facts that she did not disclose to the forensic interviewer, but her trial testimony did not contradict the statements she made during her interview. Moreover, Sebastian's conviction is supported by circumstantial evidence, including his own admission to his wife that he had joined K.S. in her bed several times. Tr. p. 41.
[¶17] K.S.'s testimony was not incredibly dubious, and the State presented sufficient evidence to support Sebastian's convictions.
[¶18] Affirmed.
Riley, J., and Felix, J., concur.