MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Feb 20 2020, 8:46 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mitchell Tickle, Jr.,                                    February 20, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1900
        v.                                               Appeal from the Decatur Circuit
                                                         Court
State of Indiana,                                        The Honorable Timothy B. Day,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         16C01-1902-F1-196



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020              Page 1 of 19
[1]   Mitchell Tickle, Jr., appeals his conviction and the sentence imposed by the

      trial court for Level 1 Felony Child Molesting,1 arguing that (1) the trial court

      erred by admitting certain evidence; (2) the State committed prosecutorial

      misconduct; (3) the evidence was insufficient to support the conviction; and (4)

      the sentence was inappropriate in light of the nature of the offense and his

      character. Finding no error, no misconduct, that the evidence was sufficient,

      and that the sentence was not inappropriate, we affirm.


                                                         Facts
[2]   On February 11, 2019, South Decatur Elementary School called in Decatur

      County Sheriff’s Deputy Schanel Manek and a representative from the Indiana

      Department of Child Services to investigate a report of potential child molesting

      after five-year-old P.T., Tickle’s daughter, made a disturbing disclosure. After

      speaking with P.T. at the school, Deputy Manek transported P.T. to the local

      Child Advocacy Center (CAC) for a forensic interview.


[3]   Over the course of one and one-half hours, the CAC interviewer and P.T.

      discussed many different things. P.T. understood what her private parts were

      and labeled them as her “front business” and her “back business.” State’s Ex.

      1(A) at 26:20-26:22.2 After first denying that anyone had touched her in or on

      her private parts, P.T. told the CAC interviewer that “something happened”




      1
          Ind. Code § 35-42-4-3(a)(1).
      2
          All time stamps come from the CD recording of the CAC interview that was shown to the jury at trial.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020                Page 2 of 19
      involving ghosts and scary stories. Id. at 39:00-41:27. P.T. stated that one day,

      she and Tickle were at their house and had a discussion in the bathroom. P.T.

      was at first reticent to discuss the contents of the conversation because she was

      worried that “Daddy is gonna go to jail.” Id. at 42:40-42:42. But then P.T.

      admitted that something had happened to her “more than one time.” Id. at

      45:39. P.T. also stated that she had previously told her grandmother about what

      took place and that Tickle had gotten upset with P.T. about disclosing that

      information and threatened her.


[4]   According to P.T., the things that occurred between her and Tickle happened

      “in her business” and “at Daddy’s house.” Id. at 48:45-49:03. P.T. said that

      every time it happened, “all of her clothes were off,” id. at 50:55, and that “all

      of [Tickle’s] clothes were off,” id. at 51:10. Everything took place “in [Tickle’s]

      bedroom, always.” Id. at 51:25. P.T. said that the first time, “his balls were in

      [her] business.” Id. at 53:25-53:35. Tickle would “cover[] [P.T.] up so no one

      looks.” Id. at 55:29-55:31. Later, P.T. confessed that Tickle’s “front business”

      was touching her “front business.” Id. at 56:50-57:00. After a while, Tickle “gets

      [his private parts] out when he wants to . . . when [she] feels it coming out.” Id.

      at 57:40-57:53. P.T. stated that when Tickle finishes, he “puts it back in his

      shorts.” Id. at 58:44-58:55. P.T. admitted that Tickle oftentimes “put it almost

      all the way in” and that it “makes [her] cry.” Id. at 59:13-59:18. To P.T.,

      Tickle’s private parts felt “wet.” Id. at 1:00:05. The CAC interviewer then asked

      P.T. to describe what Tickle’s private parts looked like, so P.T. drew a picture

      of them. P.T. stated that these things happened to other little girls she knew.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 3 of 19
[5]   After a few breaks, the interview continued. The CAC interviewer showed P.T.

      a diagram of the female and male anatomies and asked P.T. to point out all the

      private parts where a person should not be touched. P.T. repeatedly described

      the “front business” and “back business” and how Tickle would touch her when

      he was wet. Id. at 1:15:30-1:18:30. P.T. also mentioned that “Daddy wanted me

      to put his ball on my mouth, and I didn’t like it. . . . Because he peed in it.” Id.

      at 1:19:20-1:19:38. P.T. described the urine as tasting like “orange stuff,” id. at

      1:20:57, and that it looked yellow, id. at 01:21:11. The CAC interviewer asked a

      few miscellaneous follow-up questions before she concluded the interview.


[6]   Shortly thereafter, the CAC sent P.T. to a local hospital for a sexual assault

      examination while officers arrested Tickle. The examination results did not

      reveal that P.T. had been raped. On February 14, 2019, the State charged Tickle

      with one count of Level 1 felony child molesting. The State filed a notice of

      intent to introduce the CAC interview as evidence under the protected person’s

      statute so that P.T. would not have to testify openly at trial. The trial court

      conducted a June 17, 2019, pre-trial hearing on this matter, at which Dr.

      Edward Connor, a licensed psychologist testifying on behalf of the State,

      concluded that P.T. would suffer emotional damage should she be forced to

      testify at trial. P.T.’s therapist, social worker Alisha Scoville, also testified as to

      P.T.’s emotional state and concluded that “[c]linically my opinion is [P.T.

      testifying] would be very emotionally distressing for P.T., due to the nature of

      the abuse in question and her relationship.” Tr. Vol. II p. 31.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 4 of 19
[7]   Finally, Deputy Manek testified as to P.T.’s temperament and comportment.

      He mentioned that he has observed P.T.’s behavior multiple times when he

      transported her to various court proceedings and observed that:


              [s]he on multiple occasions has felt sick to her stomach, to the
              point where we have given her a trash can, offered the trash can.
              She doesn’t want to eat or drink. Very anxious, when trying to
              figure out what’s going to happened [sic] next. Tends to like the
              females around here, but the males that approach her, she looks
              down, and does not want to look at them. And, it takes a longs
              [sic] time to even try to warm up to anybody, but the female she
              tends to be a little bit more at eased [sic] with.


      Id. at 48-49.


[8]   Ultimately, the trial court concluded that P.T. would suffer severe emotional

      damage should she have to testify at trial and held as follows:


                     So, I think the State has met its burden. And, I’ve heard
              from two different witnesses, that she’s capable of understanding
              the difference between the truth, and a lie. I’m going to ask her
              some questions here in a second, to make sure that she is able to
              understand an oath.

                      But, I think the State’s met its burden under Indiana Code
              35-37-4-6 to allow video to be played at trial, without requiring the
              child to be present, and cross examined in the courtroom in front
              of [Tickle], and the jury. Which gives rise to the ability on the
              Defense’s part to cross examine [P.T.], and we started talking
              about it at the beginning of the hearing how we were going to do
              that, if I was to reach the finding that I’m making. In the
              courtroom is a monitor.

                    And, my understanding is, [P.T.] is in a different room. In
              the courtroom is, [Tickle], and his defense counsel, and the
              prosecutor, as well as myself, and the court reporter. There is a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 5 of 19
              camera in the courtroom fixed upon the video monitor for
              purposes of recording the questioning of [P.T.]

                                                   ***

                      Okay. So, we will be able to depict, make a record that
              [Tickle] is present during the cross examination, his attorney is
              here. Both will be able to see, and hear [P.T.] And, that should be
              shown on the video camera that is being made. So, [P.T.] is
              testifying by a close circuit television.


      Id. at 62-63. In other words, P.T.’s testimony would come from the recorded

      CAC interview, but Tickle’s counsel would still be able to cross-examine P.T.

      from a separate room.


[9]   Tickle’s jury trial commenced on June 25, 2019. During trial, the State moved

      to admit the recorded CAC interview with P.T. into evidence as Exhibit 1(A).

      In response to the offer of evidence, Tickle stated, “I don’t object, Your

      Honor.” Id. at 167. The jury was then allowed to watch and listen to the CAC

      interview as well as the recording of Tickle’s counsel’s cross-examination of

      P.T. At the conclusion of trial on June 27, 2019, the jury found Tickle guilty as

      charged. At Tickle’s July 23, 2019, sentencing hearing, the trial court sentenced

      him to a forty-year term, with five years suspended to probation. The trial court

      found P.T.’s young age, the fact that Tickle took advantage of his parental

      relationship with P.T., and Tickle’s prior criminal history to be aggravators.

      Tickle now appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 6 of 19
                                    Discussion and Decision
                                    I. Admission of Evidence
[10]   First, Tickle argues that the trial court erred when it admitted the CAC

       interview. “The admission and exclusion of evidence falls within the sound

       discretion of the trial court[.]” Reed v. Bethel, 2 N.E.3d 98, 107 (Ind. Ct. App.

       2014). Reversal of a trial court’s decision to admit evidence is appropriate only

       where the decision is clearly against the logic and effect of the facts and

       circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). “Moreover, we

       will sustain the trial court if it can be done on any legal ground apparent in the

       record.” Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000).


[11]   However, Tickle did not object to the introduction of the CAC interview. It is

       well established that “[a] contemporaneous objection at the time the evidence is

       introduced at trial is required to preserve the issue for appeal[.]” Brown v. State,

       929 N.E.2d 204, 207 (Ind. 2010). “A claim that has been waived by a

       defendant’s failure to raise a contemporaneous objection can be reviewed on

       appeal if the reviewing court determines that a fundamental error occurred.” Id.

       “The fundamental error exception is ‘extremely narrow, and applies only when

       the error constitutes a blatant violation of basic principles, the harm or potential

       for harm is substantial, and the resulting error denies the defendant

       fundamental due process.’” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587

       (Ind. 2006)).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 7 of 19
[12]   Specifically, Tickle contends that the State failed to demonstrate that P.T.

       would suffer extreme emotional distress should she be forced to testify in

       person; accordingly, the trial court erred when it ruled that P.T. was qualified

       under the protected person statute to have her statements given in a recorded

       interview in lieu of live testimony. Therefore, according to Tickle, not allowing

       him to confront and cross-examine P.T. in person violated his rights under the

       Sixth Amendment to the United States Constitution and Article 1, Section 13 of

       the Indiana Constitution.


[13]   Pursuant to Indiana Code section 35-37-4-6(e)(2)(B)(i), the State can show that

       the protected person is found to be unavailable as a witness for the following

       reason: “[f]rom the testimony of a psychiatrist, physician, or psychologist, and

       other evidence, if any, the court finds that the protected person’s testifying in

       the physical presence of the defendant will cause the protected person to suffer

       serious emotional distress such that the protected person cannot reasonably

       communicate.” The State relied on this exception when it called psychologist

       Dr. Edward Connor, social worker Alisha Scoville, and Deputy Manek to

       prove that P.T. would suffer severe emotional distress should she be forced to

       testify in front of Tickle at trial.


[14]   We find that the trial court made no error in its assessment of P.T. as a

       protected person under the statute. The State presented three separate witnesses

       of varying backgrounds to describe their interactions with P.T. and how

       testifying at trial might affect her mental and emotional state. All three reached

       a similar conclusion—namely, that given the unmitigated trauma that P.T. has

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 8 of 19
       experienced from her ordeal and given the high emotional stakes of the case, it

       would be best for P.T. to testify via a recorded interview. They ultimately

       determined that P.T. would suffer severe emotional harm should she be forced

       to testify against Tickle face-to-face, and we see no error in the trial court’s

       reasoning. Any attempt by Tickle to have us reexamine P.T.’s distracted nature

       or the credibility of the State’s witnesses is nothing more than a request that we

       reweigh the evidence, which we may not do.


[15]   Now, with regards to whether the admission of the CAC interview violated

       Tickle’s federal and state constitutional rights, we find little merit to Tickle’s

       arguments. Under the Sixth Amendment’s Confrontation Clause, the United

       States Supreme Court has explicitly stated, in pertinent part, as follows:


               In sum, we conclude that where necessary to protect a child
               witness from trauma that would be caused by testifying in the
               physical presence of the defendant, at least where such trauma
               would impair the child’s ability to communicate, the
               Confrontation Clause does not prohibit use of a procedure that,
               despite the absence of face-to-face confrontation, ensures the
               reliability of the evidence by subjecting it to rigorous adversarial
               testing and thereby preserves the essence of effective
               confrontation.


       Maryland v. Craig, 497 U.S. 836, 857 (1990). In other words, the procedure

       utilized in Tickle’s trial did not violate his federal constitutional rights because

       the right to confront and cross-examine witnesses is not absolute.


[16]   Next, with regards to Article 1, Section 13 of the Indiana State Constitution,

       which states that “[i]n all criminal prosecutions, the accused shall have the right


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 9 of 19
       . . . to meet witnesses face to face,” our Supreme Court has held that “the

       federal right of confrontation and the state right to a face-to-face meeting are co-

       extensive.” Brady v. State, 575 N.E.2d 981, 987 (Ind. 1991). Further, our

       Supreme Court has interpreted Article 1, Section 13 to mean the following:


               Nonetheless, neither the Sixth Amendment nor Article 1, Section
               13 have been interpreted literally to guarantee a criminal
               defendant all rights of confrontation at every trial for every
               witness. Otherwise, no testimony of any absent witness would ever
               be admissible at trial. . . .

                                                        ***

               However, where a defendant has never had the opportunity to
               cross-examine a witness and meet him face to face, admission of
               prior testimony at a subsequent proceeding violates the
               constitutional right of confrontation.


       State v. Owings, 622 N.E.2d 948, 951 (Ind. 1993).


[17]   And here, Tickle was given the opportunity to thoroughly cross-examine P.T.,

       and that recording was shown to the jury at trial. So while the language of

       Indiana’s corollary to the Sixth Amendment “has a special concreteness and is

       more detailed,” Ward v. State, 50 N.E.3d 752, 756 (Ind. 2016), the trial court

       nevertheless followed the provision’s strictures, provided Tickle with an

       opportunity to cross-examine P.T., and coordinated with both parties to ensure

       that Tickle’s due process rights would not be violated.


[18]   Indiana’s choice to mirror the United States Supreme Court’s holding and

       include such an exception to Article 1, Section 13 is evident by the

       establishment of the protected person statute. Our General Assembly has

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 10 of 19
       codified the holding of Craig and provided an avenue for young children and

       others who might benefit from testifying separate and apart from a criminal

       defendant. Given this constitutional and statutory background, we find no error

       emanating from the trial court’s decision. The admission of the CAC interview

       did not violate Tickle’s rights under the federal or state constitutions.


[19]   Also, as a matter of procedure, Tickle’s claims fail on two fronts. First, Tickle

       did not object to the admission of the CAC interview as evidence. When asked

       directly about the State’s introduction of the video, Tickle’s counsel replied with

       “I don’t object, Your Honor.” Tr. Vol. II p. 167. And second, Tickle made an

       agreement with the State to have his counsel confront and cross-examine P.T.

       in a separate room, and that video was shown to the jury. It is apparent to us

       that the trial court took the necessary precautions to safeguard Tickle’s

       constitutional rights. We are not persuaded by Tickle’s claims when this entire

       process was coordinated between counsel on both sides. Stated another way, we

       are unwilling to find a constitutional violation on appeal when the matter was

       both settled and explicitly uncontested at trial.


[20]   In sum, the trial court did not err when it admitted the CAC interview.


                                 II. Prosecutorial Misconduct
[21]   Next, Tickle argues that the State committed prosecutorial misconduct. When a

       defendant has failed to object to alleged prosecutorial misconduct at the trial

       court level, he has effectively waived the issue, and we may then review the

       matter only for fundamental error. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 11 of 19
       2014). To prevail on a claim of fundamental error, the defendant must show

       that the alleged misconduct was so prejudicial to his rights that it made a fair

       trial impossible. Id. at 668.


[22]   To show prosecutorial misconduct, the defendant must show that the alleged

       misconduct (1) constituted a clearly blatant violation of basic and elementary

       principles of due process; (2) presented an undeniable and substantial potential

       for harm; and (3) made a fair trial impossible. Washington v. State, 902 N.E.2d

       280, 290 (Ind. Ct. App. 2009). Moreover, the alleged misconduct must have

       subjected the defendant to grave peril and had a probable persuasive effect on

       the jury’s decision. Id.


[23]   Specifically, Tickle contends that the State committed prosecutorial misconduct

       in two ways: (1) the State elicited improper testimony from the nurse who

       examined P.T. for her sexual assault examination; and (2) the State made a

       closing argument that prejudiced Tickle.


                                                    Testimony

[24]   Essentially, Tickle argues that the State intentionally presented an evidentiary

       harpoon when it had the nurse testify. “An evidentiary harpoon occurs when

       the prosecution places inadmissible evidence before the jury for the deliberate

       purpose of prejudicing the jurors against the defendant.” Evans v. State, 643

       N.E.2d 877, 879 (Ind. 1994). To prevail on this claim, Tickle must show both

       that the prosecutor acted deliberately to prejudice the jury and that the evidence

       was inadmissible.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 12 of 19
[25]   The testimony in contention is the nurse’s statements about the routine

       procedure for a sexual assault examination. The nurse also provided statistics

       from a gynecological journal concerning the number of adolescents who

       exhibited physical symptoms of sexual assault following an alleged rape. See

       generally Tr. Vol. II p. 220-23.


[26]   We find nothing in the nurse’s testimony that would render it inadmissible, and

       Tickle does not point to any specific testimony from the nurse that violates the

       rules of evidence. Though it may not have been the State’s best strategy to have

       a witness recite statistics from a medical journal, it was established that the

       nurse had conducted the actual sexual assault examination, had firsthand

       knowledge of the situation, and had interacted with P.T. in person. Therefore,

       the nurse’s testimony was not inadmissible.


[27]   Moreover, Tickle does not point to any specific evidence showing that the

       prosecutor presented this evidence to deliberately prejudice the jury against

       Tickle. Upon further review, we likewise find none. In sum, Tickle has not

       demonstrated that the State committed prosecutorial misconduct in this

       instance.


                                               Closing Argument

[28]   Next, Tickle contends that the State prejudiced him when the prosecutor stated

       the following during closing argument:


                      Another way of saying this, and the status of the law is, is
               that you may find a conviction, you may convict, of the crime of
               child molesting, based solely on the uncorroborated testimony of
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 13 of 19
               the victim, if you find yourself convinced by it and you decide to
               assign the greatest value to it. It doesn’t matter that there’s only
               one, because the quantity of evidence or number of the witnesses
               need not control your determination of the truth. You can reach a
               conviction on a he said, she said if what one of them said, if you
               believe that the State’s burden has been met.


       Tr. Vol. III p. 93-94. Specifically, Tickle argues that “[b]ecause the trial court

       may not instruct the jury as the prosecutor did, the prosecutor committed

       misconduct during final argument.” Appellant’s Br. p. 35. However, Tickle’s

       argument is unavailing.


[29]   While it is the province of the trial court to define the proper evidentiary scope

       and the law of the case, we can hardly say that the prosecutor’s statements here

       placed Tickle in grave peril. Following the State’s closing argument, the trial

       court reminded the jury in the final written jury instructions of its duties and

       how it should weigh the evidence during deliberation. See Appellant’s App. Vol

       II p. 123-25. Thus, any potential bias or harm inflicted by the prosecutor was

       alleviated by the trial court’s final word.


[30]   Moreover, the prosecutor did not state anything incorrectly or imperil Tickle’s

       right to a fair trial. “[A] conviction for child molesting may rest solely upon the

       uncorroborated testimony of the victim.” Link v. State, 648 N.E.2d 709, 713

       (Ind. Ct. App. 1995). As such, the prosecutor’s comment about the jury being

       able to rely on only P.T.’s uncorroborated testimony from the video recording is

       both an accurate and succinct recitation of pertinent Indiana law. Though

       Tickle is correct in stating that “[t]he Indiana Supreme Court has disapproved


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 14 of 19
       of a jury instruction directing the jury that it may find guilt based on the

       uncorroborated testimony of a single person,” appellant’s br. p. 39, the

       prosecutor’s statement was not a final jury instruction.


[31]   In sum, we find that Tickle has failed to present any probative evidence proving

       that the State committed prosecutorial conduct.


                                  III. Sufficiency of Evidence
[32]   Next, Tickle argues that the evidence was insufficient to support his conviction

       for Level 1 felony child molesting. When reviewing the sufficiency of the

       evidence supporting a conviction, we must affirm if the probative evidence and

       reasonable inferences drawn therefrom could have allowed a reasonable trier of

       fact to find the defendant guilty beyond a reasonable doubt. McHenry v. State,

       820 N.E.2d 124, 126 (Ind. 2005). It is not our job to reweigh the evidence or to

       judge the credibility of the witnesses, and we consider any conflicting evidence

       most favorably to the trial court’s ruling. Wright v. State, 828 N.E.2d 904, 906

       (Ind. 2005).


[33]   To convict Tickle of Level 1 felony child molesting, the State was required to

       prove beyond a reasonable doubt that Tickle, who was at least twenty-one years

       old at the time of the offense, knowingly or intentionally performed or

       submitted to sexual intercourse or other sexual conduct with P.T., who was

       under the age of fourteen. I.C. § 35-42-4-3(a)(1).


[34]   Tickle chiefly contends that the evidence is too weak to support his conviction

       because the jury primarily relied upon the uncorroborated statements of a five-
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 15 of 19
       year-old girl.3 As we have already stated, it is well established that “the

       uncorroborated testimony of a child victim is sufficient to support a conviction

       of child molesting.” Wisneskey v. State, 736 N.E.2d 763, 764 (Ind. Ct. App.

       2000). And for nearly one and one-half hours, P.T. recounted her harrowing

       experiences with Tickle.


[35]   Though hesitant at first and without the proper biological vocabulary, P.T.—a

       minor who was five years old at the time—nevertheless revealed that Tickle

       forced her into unwanted and thoroughly disturbing experiences. P.T. showed a

       clear understanding of where a man’s and woman’s private parts were and

       repeatedly talked about how Tickle put his “front business” into her “front

       business.” State’s Ex. 1(A) at 56:50-57:00. She even went so far as to evoke the

       pain she experienced when Tickle allegedly “put it almost all the way in.” Id. at

       59:13-59:18. In more graphic detail, P.T. testified that Tickle had urinated in

       her mouth and stated that it had tasted like orange and looked yellow in

       appearance. Id. at 1:20:57-1:21:11. A fact-finder could reasonably conclude that

       these actions amounted to either sexual intercourse or sexual conduct.


[36]   Tickle contests this conclusion and points out that “P.T.’s frequently vague

       responses to the CAC examiner were inherently and explicitly contradictory.”




       3
         Tickle seemingly ignores the fact that in most sexual assault cases—especially those involving minor
       children—there are usually no other witnesses or physical evidence, primarily due to the clandestine nature
       of the crime. So, while there was no physical indication from the sexual assault examination that P.T. had
       been raped, this does not preclude a jury from rendering a guilty verdict based upon P.T.’s uncorroborated
       testimony alone.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020               Page 16 of 19
       Appellant’s Br. p. 28. However, Tickle’s attempts to have us reevaluate the very

       credibility of P.T.’s recorded testimony is nothing more than a request that we

       reweigh the evidence, which we may not do. It is the province of the jury, not

       of this Court on appeal, to determine whether P.T.’s statements were credible.4

       And here, there was sufficient evidence upon which the jury could rely in

       rendering the verdict that it did. In other words, there was sufficient evidence

       such that a reasonable trier of fact could have convicted Tickle of Level 1 felony

       child molesting.


                                          IV. Appropriateness
[37]   Finally, Tickle argues that the sentence imposed by the trial court is

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


[38]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . 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.” The question is not whether another sentence is more

       appropriate, but whether the defendant’s specific sentence is inappropriate.




       4
        As an aside, we find that Tickle’s reliance on the incredible dubiosity rule is misplaced. The “incredible
       dubiosity” rule “is appropriate only where the court has confronted inherently improbable testimony or
       coerced, equivocal, wholly uncorroborated testimony of incredibly 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) (internal citation
       omitted). We find nothing in P.T.’s testimony to be inherently dubious or improbable, and we decline to
       apply such a standard of review when there is no indication that P.T.’s testimony was anything but her own.
       Furthermore, we are most aware that all five-year-old children are “easily distracted,” appellant’s br. p. 25,
       and that being frequently inattentive or wanting to draw and talk about other things does not necessarily
       undercut a child’s credibility in court.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020               Page 17 of 19
       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining

       whether the sentence is inappropriate, we will consider numerous factors such

       as culpability of the defendant, the severity of the crime, the damage done to

       others, and a “myriad [of] other factors that come to light in a given case.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[39]   For someone who commits the offense of Level 1 felony child molesting, the

       maximum sentence is fifty years, and the minimum sentence is twenty years.

       Ind. Code § 35-50-2-4(c). The advisory sentence is thirty years. Id. Here, the

       trial court imposed a forty-year term, with five years suspended to probation.


[40]   First, as to the nature of the offense, Tickle has committed a truly horrific

       offense—the sexual molestation of a minor child. Not only that, but Tickle

       performed these actions on his own daughter. The trial court noted the

       grotesque nature of Tickle’s actions when it found Tickle’s betrayal of P.T.’s

       trust to be an aggravating factor during sentencing. And according to P.T.’s

       testimony, Tickle assaulted P.T. multiple times and committed these same

       actions with other little girls. To exacerbate the repulsive nature of what he did,

       Tickle even urinated in P.T.’s mouth and raped her up until the point where she

       admitted that it physically hurt her. Without a doubt, Tickle has inflicted long-

       term psychological trauma on a young girl, and she will have no choice but to

       live with these scarring experiences for the rest of her life. Therefore, we find

       that the nature of the offense does not render Tickle’s sentence inappropriate.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 18 of 19
[41]   Then, as to Tickle’s character, Tickle has a long criminal history. He has

       previously been convicted of reckless driving, burglary, theft, and resisting law

       enforcement. See Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002) (holding that

       a history of criminal activity can reflect poorly on a defendant’s character at

       sentencing); see also Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)

       (holding that “it is appropriate to consider such a [criminal] record as a poor

       reflection on the defendant’s character, because it may reveal that he . . . has

       not been deterred even after having been subjected to the police authority of the

       State[]”). And, according to P.T.’s testimony, after P.T. informed her

       grandmother about what Tickle had done to her, Tickle became very upset and

       threatened P.T. Furthermore, Tickle has exhibited no remorse for the damage

       he has caused, and thus, we find that Tickle’s character does not render his

       sentence inappropriate. In sum, we will not revise Tickle’s sentence pursuant to

       Indiana Appellate Rule 7(B).


[42]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1900 | February 20, 2020   Page 19 of 19
