MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jun 05 2017, 8:50 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
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Benjamin Lee,                                            June 5, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1609-CR-2197
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G06-1507-FA-24808



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017                 Page 1 of 6
[1]   Benjamin Lee appeals his convictions for three counts of Class A felony child

      molesting. 1 He argues the State did not present sufficient evidence of his guilt

      because A.G.’s testimony was incredibly dubious. We affirm.



                                Facts and Procedural History
[2]   Between 2002 and 2005, when A.G. was between five and eight years old,

      A.G.’s mother (“Mother”) was in a relationship with Lee. During that time,

      Lee would babysit A.G. while Mother was at work. On multiple occasions,

      Lee forced A.G. to perform oral sex on him and once attempted to have sexual

      intercourse with her. A.G. did not report the incidents at the time because she

      “was scared” and “felt stupid.” (Tr. Vol. II at 78.) When A.G. was in junior

      high or high school, she told Mother that Lee had molested her. A.G. did not

      tell anyone else at that time because “it’s old and wouldn’t nobody believe

      [her].” (Id. at 79) (errors in original). Mother did not report what A.G. told her

      at that time because she “googled it and it was that the statute of limitations had

      passed based on what [she] knew at the time.” (Id. at 35.)


[3]   In May 2015, when A.G. was eighteen years old, Lee contacted A.G. via

      telephone at her job and asked her if she remembered him and if their “secret

      [was] still between [them.]” (Id. at 80.) A.G. began physically shaking after the

      phone call and called Mother. A.G. contacted the police and reported the




      1
          Ind. Code § 35-42-4-3(a) (1998).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017   Page 2 of 6
      incidents of molestation that occurred between 2002 and 2005. Based thereon,

      the State charged Lee with four counts of Class A felony child molesting.

      Three of the charges alleged Lee performed or submitted to an act of criminal

      deviate conduct with A.G.; the other alleged he had sexual intercourse with

      her. The police arrested Lee on August 6, 2015.


[4]   The trial court held a jury trial. The jury returned a guilty verdict for all but one

      of the counts. On September 2, 2016, the trial court sentenced Lee to an

      aggregate sentence of eighty-five years, with twenty-five years suspended.



                                 Discussion and Decision
[5]   When reviewing sufficiency of evidence to support a conviction, we consider

      only the probative evidence and reasonable inferences supporting the judgment.

      Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and

      not ours, to assess witness credibility and weigh the evidence to determine

      whether it is sufficient to support a conviction. Id. To preserve this structure,

      when we are confronted with conflicting evidence, we consider it most

      favorably to the jury’s ruling. Id. We affirm a conviction unless no reasonable

      fact-finder could find the elements of the crime proven beyond a reasonable

      doubt. Id. It is therefore not necessary that the evidence overcome every

      reasonable hypothesis of innocence; rather, the evidence is sufficient if an

      inference reasonably may be drawn from it to support the jury’s decision. Id. at

      147.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017   Page 3 of 6
[6]   To prove Lee committed Class A felony child molesting, the State had to prove

      Lee was at least twenty-one years old and performed or submitted to sexual

      intercourse or deviate sexual conduct with a child under fourteen years of age.

      See Ind. Code § 35-42-4-3(a) (1998). Lee argues A.G.’s testimony was

      incredibly dubious and, thus, the State did not present sufficient evidence that

      he committed three counts of Class A felony child molesting.


[7]   The “incredible dubiosity rule” applies “only when a lone witness offers

      inherently contradictory testimony that is equivocal or the result of coercion

      and there is a complete lack of circumstantial evidence of the appellant’s guilt.”

      Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001). Because it is the jury’s role to

      judge witness credibility and to weigh evidence, we cannot impinge on the

      jury’s role except in the rare circumstance when testimony “runs counter to

      human experience [such] that reasonable persons could not believe” it. Id.

      (internal citations omitted).


[8]   Lee argues inconsistencies between A.G.’s testimony at trial and her statements

      to police make her testimony incredibly dubious. “The fact that a witness gives

      trial testimony that contradicts earlier pre-trial statements does not necessarily

      render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406,

      409 (Ind. 2002). Thus, we cannot declare A.G.’s testimony incredibly dubious

      due to the inconsistencies Lee cites.


[9]   Lee also claims:




      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017   Page 4 of 6
               What is contradictory about A.G.’s testimony is that she
               purported to recall facts that might satisfy proof of the elements
               of the offense, but she could not recall details of the incidents.
               Her ability to recall incidents from ten to twelve years before is
               rendered incredible by her inability to recall surrounding details.
               It is inherently contradictory that a witness can recall only the
               alleged offenses and not the attendant facts and circumstances.


       (Br. of Appellant at 13.) We disagree with Lee’s legally unsupported statement.

       In fact, we have before acknowledged that, when many years have passed

       between sexual abuse and testimony, a child will be unable to remember the

       specific circumstances that surrounded each occurrence of an offense. See, e.g.,

       Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (noting children often cannot

       recall extraneous facts distinguishing each of multiple occurrences of abuse),

       reh’g denied. And we note that eleven years passed between when Mother’s

       relationship with Lee ended and when A.G. was testifying, which alone could

       account for any witness’s inability to remember surrounding details. We

       decline to call A.G.’s testimony dubious on this basis.


[10]   Further, A.G. was not the only witness. Mother testified A.G.’s behavior

       changed over the course of Mother’s relationship with Lee, until A.G. did not

       want to be around Lee. Mother also testified A.G. disclosed Lee’s molestation

       to Mother when A.G. was in junior high or high school, but that Mother

       thought the statute of limitations had lapsed for reporting of the crime and

       therefore did not call police. A.G. testified to multiple incidents of molestation

       by Lee. His arguments are invitations for us to reweigh the evidence and judge

       witness credibility, which we cannot do. See Drane, 867 N.E.2d at 146

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017   Page 5 of 6
       (appellate court does not reweigh evidence or judge credibility of witnesses).

       A.G.’s testimony was not incredibly dubious, and it was sufficient to support

       the jury finding Lee committed three counts of Class A felony child molesting.

       See Young v. State, 973 N.E.2d 1225, 1227 (Ind. Ct. App. 2012), (affirming

       molest convictions based on testimony of victim), reh’g denied, trans. denied.



                                               Conclusion
[11]   Lee has not demonstrated A.G.’s testimony was incredibly dubious and thus

       the State presented sufficient evidence to prove Lee committed three counts of

       Class A felony child molesting. We affirm.


[12]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017   Page 6 of 6
