MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            May 16 2017, 11:33 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                           Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, L.L.P.                     Attorney General of Indiana
Huntington, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy L. Larkey, Sr.,                                 May 16, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        90A02-1612-CR-2767
        v.                                              Appeal from the Wells Circuit
                                                        Court
State of Indiana,                                       The Honorable Kenton W.
Appellee-Plaintiff.                                     Kiracofe, Judge
                                                        Trial Court Cause No.
                                                        90C01-1512-FC-4



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017       Page 1 of 8
                                          Case Summary
[1]   Between March of 2013 and July of 2014, Appellant-Defendant Tim Larkey,

      Sr. (“Larkey”) was living with his son Tim Larkey, Jr., his son’s girlfriend

      Amanda G., and her four children in a house in Poneto, Indiana. On May 21,

      2015, the children were removed from Amanda’s care by the Department of

      Child Services (“DCS”). In September of 2015, D.G., one of Amanda’s

      children, was referred to a counselor by DCS. During a counseling session that

      same month, D.G. disclosed to her counselor that Larkey had entered her

      bedroom and fondled her vagina sometime between March 2013 and July of

      2014. The counselor reported the allegation to the Child Abuse Hotline and

      D.G. was interviewed by the Wells County DCS. On December 22, 2015, after

      the investigation by DCS and the police department, the Appellee-Plaintiff the

      State of Indiana (“the State”) charged Larkey with Class C felony child

      molesting.


[2]   On October 6 and 7, 2016, a jury trial was held. Larkey was found guilty as

      charged and the trial court sentenced Larkey to eight years of incarceration.

      Larkey contends that the State produced insufficient evidence to sustain his

      conviction of Class C felony child molesting and that the sentence is

      inappropriate in light of the nature of his offense and his character. Concluding

      that the evidence is sufficient and his sentence is not inappropriate, we affirm.



                            Facts and Procedural History

      Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017   Page 2 of 8
[3]   Between March of 2013 to July of 2014, Amanda and her four children lived in

      a home that had belonged to her grandmother in Poneto, Indiana. Amanda’s

      boyfriend, Tim Larkey, Jr., and his father, Larkey, also lived in the house. The

      home had one bedroom downstairs, one bedroom upstairs, and an upstairs

      apartment. Amanda and Larkey, Jr. shared the downstairs bedroom, the

      children shared the upstairs bedroom, and Larkey, resided in the upstairs

      apartment. Larkey babysat the children from time to time and he had a good

      relationship with them; the children even referred to him as “Grandpa.” Tr.

      Vol. II p. 59.


[4]   All four children were removed from Amanda’s care by the DCS on May 21,

      2015. In September of 2015, D.G., one of Amanda’s children, was referred to a

      counselor by DCS. During a counseling session on September 30, 2015, D.G.

      disclosed to the counselor that she had been sexually abused by Larkey. The

      counselor then made a report to the Child Abuse Hotline. D.G. was

      interviewed by Wendeline Garrett of the Wells County DCS on October 5,

      2015. Garrett was familiar with D.G. and had known her since D.G. was

      removed from her mother’s care in May of 2015.


[5]   D.G. testified that while she was living in the house in Poneto, she woke up one

      night when she felt Larkey touching her inside of her underwear with his hand.

      D.G. testified that the contact was skin to skin. When D.G. woke up, she hit or

      kicked Larkey and the touching stopped. D.G. did not tell anyone about the

      incident until her counseling session in September of 2015 because she was

      scared.

      Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017   Page 3 of 8
[6]   The Wells County Department of Child Services and the Bluffton police

      department investigated the allegation of molestation by Larkey. On December

      22, 2015, the State charged Larkey with Class C felony child molesting. On

      October 6 and 7, 2016, a jury trial was held. The jury found Larkey guilty as

      charged and the trial court sentenced him to eight years of incarceration.



                                Discussion and Decision
[7]   Larkey raises the following restated issues: (1) whether the State presented

      sufficient evidence to sustain Larkey’s conviction for Class C felony child

      molesting and (2) whether the trial court imposed an inappropriate sentence in

      light of the nature of Larkey’s offense and character.


                              I.     Sufficiency of the Evidence
[8]   Our standard for reviewing the sufficiency of the evidence claims is well-settled.

      Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).


              In reviewing the sufficiency of the evidence, we examine only the
              probative evidence and reasonable inferences that support the
              verdict. We do not assess witness credibility, nor do we reweigh
              the evidence to determine if it was sufficient to support a
              conviction. Under our appellate system, those roles are reserved
              for the finder of fact. Instead, we consider only the evidence
              most favorable to the trial court ruling and affirm the conviction
              unless no reasonable fact-finder could find the elements of the
              crime proven beyond a reasonable doubt. This evidence need not
              overcome every reasonable hypothesis of innocence; it is
              sufficient so long as an inference may reasonably be drawn from
              it to support the verdict.

      Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017   Page 4 of 8
       Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (internal citations and quotation

       marks omitted). The trier of fact is responsible for resolving conflicts of

       testimony, determining the weight of the evidence, and evaluating the

       credibility of the witnesses. Jones v. State, 701 N.E.2d 863, 867 (Ind. Ct. App.

       1998). Additionally, “[t]he uncorroborated testimony of the victim, even if the

       victim is a minor, is sufficient to sustain a conviction of child molesting, and it

       is within the province of the trier of fact to reject evidence to the contrary.”

       Feyka v. State, 972 N.E.2d 387, 393 (Ind. Ct. App. 2012).


[9]    That said, Larkey asserts that the only evidence to support his conviction, i.e.

       D.G.’s testimony, was uncorroborated and incredibly dubious. The incredible

       dubiosity rule, which requires the reversal of a conviction, is only applied in

       very narrow circumstances. Leyva v. State, 971 N.E.2d 699, 702 (Ind. Ct. App.

       2012). The incredible dubiosity rule is expressed as follows:


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this 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).


[10]   D.G. testified that Larkey entered her bedroom while she and her sisters were

       asleep and fondled her vagina, “skin on skin.” Tr. Vol. II, pp. 82-83. D.G.


       Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017   Page 5 of 8
       further testified that he only stopped once she woke up and hit or kicked him.

       D.G.’s testimony was not inherently contradictory or improbable, and there is

       no suggestion, much less evidence, of coercion. We, therefore, conclude that

       there was sufficient evidence for the jury to convict Larkey.


[11]   Larkey suggests that D.G.’s testimony was contradictory because she said she

       was not absolutely sure that her molester was not Larkey, Jr. due to the passage

       of time since the incident; however, D.G. did later clarify that she was certain

       Larkey, Sr. was the perpetrator when she initially disclosed the molestation to

       her counselor. It was within the jury’s province to evaluate D.G.’s credibility as

       a witness, and the jury chose to believe the victim.


                                    II. Sentence Challenge
[12]   Larkey also raises the issue of whether sentencing him to the maximum

       sentence allowed by law is appropriate in light of the nature of his offense and

       character. Under Indiana Appellate Rule 7(B), “[t]he Court may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, the Court finds that the sentence is inappropriate in light of the nature

       of the offense and the character of the offender.” When reviewing such claims,

       we “concentrate less on comparing the facts of the [case at issue] to others,

       whether real or hypothetical, and more on focusing on the nature, extent, and

       depravity of the offense for which the defendant is being sentence, and what it

       reveals about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825

       (Ind. Ct. App. 2008) (internal quotes and citations omitted). Larkey, as the


       Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017   Page 6 of 8
       defendant, bears the burden of persuading us that his sentence is inappropriate.

       Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[13]   The sentencing range for a Class C felony conviction is between two and eight

       years of imprisonment, with the advisory sentence being four years of

       imprisonment. Ind. Code § 35-50-2-6(a). The advisory sentence is merely a

       starting point for the court when considering the appropriateness of a sentence.

       See Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016). The trial court in

       this case sentenced Larkey to the maximum sentence of eight years.


[14]   With respect to the nature of the offense, Larkey fondled the vagina of a ten-

       year-old girl in her bedroom while her sisters slept in the same room. He also

       had some position of trust with D.G. and her sisters; they oftentimes referred to

       him as “Grandpa.” Tr. Vol. II, p. 166. The disturbing nature of Larkey’s

       offense does not offer us any reason to modify his sentence.


[15]   As for Larkey’s character, at the age of fifty-six he has amassed a significant

       adult criminal history, including multiple felony convictions. Larkey also had

       several juvenile adjudications, one of which would have been a felony if he had

       been an adult. Larkey’s lengthy criminal record and inability to reform himself

       shows his poor character and confirms the appropriateness of the sentence

       which was imposed by the trial court. Consequently, we do not agree with

       Larkey’s argument that in light of the nature of his offense and his character, his

       sentence is inappropriate.


[16]   We affirm the judgment of the trial court.

       Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017   Page 7 of 8
Najam, J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 90A02-1612-CR-2767 | May 16, 2017   Page 8 of 8
