  MEMORANDUM DECISION
                                                                   Apr 21 2015, 8:21 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark I. Cox                                               Gregory F. Zoeller
The Mark I. Cox Law Office, LLC                           Attorney General of Indiana
Richmond, Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Timothy M. Roberts, Jr.,                                  April 21, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          89A05-1410-CR-500
        v.                                                Appeal from the Wayne Circuit
                                                          Court.
                                                          The Honorable David A. Kolger,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 89C01-1302-FA-5




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015      Page 1 of 5
                                          Statement of the Case
[1]   Timothy M. Roberts, Jr., appeals his conviction of child molesting, a Class A
                 1
      felony. We affirm.


                                                     Issue
[2]   Whether there is sufficient evidence to sustain Roberts’s conviction.


                                   Facts and Procedural History
[3]   Laura Rubino gave birth to D.F. on October 25, 2000. Rubino subsequently

      began a relationship with Roberts, and they had two children together. After

      the relationship ended, Rubino and her three children moved to Richmond,

      Indiana.


[4]   In March 2009, Roberts moved to Richmond and cared for the children while

      Rubino was at work. One evening, Roberts had D.F. leave her bedroom and go

      to the living room. He removed her clothes and rubbed his penis against her

      vagina. Next, Roberts had D.F. put her mouth on his penis. He ejaculated and

      told her to swallow it instead of spitting it out. D.F. asked Roberts what he was

      doing to her, and he told her “he couldn’t tell me because I’d tell someone.”

      Tr. p. 217. Roberts had D.F. put her mouth on his penis at least “ten, fifteen”

      times in the months following the first incident. Id. at 220.




      1
          Ind. Code § 35-42-4-3 (2007).


      Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015   Page 2 of 5
[5]   D.F. later disclosed to Rubino’s boyfriend what Roberts had done to her.

      When D.F. was later in foster care, she also told her foster mother about

      Roberts’s molestations.


[6]   The State charged Roberts with child molesting as a Class A felony. A jury

      determined that Roberts was guilty as charged. The trial court sentenced

      Roberts, and this appeal followed.


                                   Discussion and Decision
[7]   Roberts claims the State failed to present sufficient evidence to sustain his

      conviction beyond a reasonable doubt. In considering challenges to the

      sufficiency of the evidence, we neither reweigh the evidence nor judge witness

      credibility. Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind. 2010). Instead, we

      consider only the evidence supporting the judgment and any reasonable

      inferences drawn from the evidence. Tin Thang v. State, 10 N.E.3d 1256, 1258

      (Ind. 2014). We affirm a conviction unless no reasonable trier of fact could find

      every element proved beyond a reasonable doubt. Blount v. State, 22 N.E.3d

      559, 565 (Ind. 2014).


[8]   In order to convict Roberts of child molesting as a Class A felony, the State was

      required to prove beyond a reasonable doubt that Roberts: (1) a person of at

      least twenty-one years of age (2) performed or submitted to sexual intercourse

      or deviate sexual conduct (3) with a child under fourteen years of age. Ind.

      Code § 35-42-4-3. During the period of time relevant to this case, “deviate

      sexual conduct” was defined as “an act involving . . . a sex organ of one person

      Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015   Page 3 of 5
       and the mouth or anus of another person . . . or the penetration of the sex organ

       or anus of a person by an object.” Ind. Code § 35-41-1-9 (repealed 2012).


[9]    There is no dispute that Roberts was older than twenty-one years of age or that

       D.F. was under fourteen years of age when the acts at issue occurred. Further,

       D.F. testified specifically and in in detail about the first time that Roberts forced

       her to put her mouth on his penis, and she further testified that it happened

       again at least ten to fifteen other times during the time period at issue here.

       This is sufficient evidence that Roberts submitted to deviate sexual conduct

       with D.F. See Ware v. State, 816 N.E.2d 1167, 1174 (Ind. Ct. App. 2004)

       (victim’s testimony that defendant performed deviate sexual conduct on

       multiple occasions during time period sufficient to sustain convictions).


[10]   Roberts asserts that there is no physical evidence, but considering the manner in

       which the crimes were committed and the totality of the facts and

       circumstances surrounding the incidents, it is unlikely that there would ever be

       any physical evidence available. Roberts also claims that D.F.’s testimony was

       inconsistent. However, a molested child’s uncorroborated testimony is

       sufficient to sustain a conviction. Carter v. State, 754 N.E.2d 877, 880 (Ind.

       2001). Furthermore, any inconsistencies were a matter for the jury to weigh in

       assessing D.F.’s credibility.


                                                Conclusion
[11]   For the reasons stated above, we affirm the judgment of the trial court.


[12]   Affirmed.
       Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015   Page 4 of 5
Najam, J., and Mathias, J., concur.




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