MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Mar 28 2017, 10:24 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
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
T. Alexander Newman                                     Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana

                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Willie Edward Williams,                                 March 28, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1608-CR-2016
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Angela G. Warner
Appellee-Plaintiff.                                     Sims, Judge
                                                        Trial Court Cause No.
                                                        48C01-1606-F1-1188



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-2016 | March 28, 2017               Page 1 of 7
                                       Statement of the Case
[1]   Willie Edward Williams appeals his convictions for two counts of child

      molesting, one as a Level 1 felony and one as a Level 4 felony, and his

      adjudication as a habitual offender following a bench trial. Williams presents a

      single issue for our review, namely, whether the State presented sufficient

      evidence to support his convictions. And we raise one issue sua sponte, namely,

      whether Williams’ convictions violate the prohibition against double jeopardy.

      We affirm in part and reverse in part.


                                 Facts and Procedural History
[2]   On November 11, 2015, Williams, who was forty-two years old at the time, was

      visiting at his cousin M.C.’s house in Anderson. M.C. lived there with her

      mother, G.C., and M.C.’s children, including her then-thirteen-year-old

      daughter T.C. During the late afternoon, M.C. left the house to go shopping

      for food for a party to celebrate her friend K.N.’s birthday at K.N.’s house next

      door. At approximately 4:30 or 5:00 p.m., Williams and T.C. were alone

      together in the living room, and Williams sat next to T.C. on a couch.

      Williams “brushed up on” T.C. Tr. at 76. T.C. told Williams to move, and she

      “moved him” away. Id. Williams “kept brushing up” against T.C. Id. at 77.

      Williams then “stuck his hands in [T.C.’s] pants and then he stuck his finger in

      [T.C.’s vagina].” Id. at 79. T.C. then “got up[,] and [she] was crying[,] and

      [she] ran next door” to find her grandmother at K.N.’s party. Id. at 81. T.C.

      was crying and visibly upset when she arrived at the party, but she would not



      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-2016 | March 28, 2017   Page 2 of 7
      tell anyone what had happened. When M.C. arrived at the party, she found

      T.C. crying, but T.C. did not tell her what had happened.


[3]   In December 2015, T.C. was placed at the Youth Opportunity Center (“YOC”)

      after she engaged in a fight at school. And on January 13, 2016, T.C. told

      Shelby Parker, a unit manager at YOC, that Williams had stuck a finger in her

      vagina. Parker contacted the Department of Child Services (“DCS”) to report

      the incident, and DCS began an investigation into T.C.’s allegation. During a

      forensic interview on January 21, T.C. stated as follows: while she could not

      remember the date of the molestation by Williams, she stated that it “happened

      in the fall” when it was “cold outside”1 Defendant’s Ex. 2; she had had a

      doctor’s appointment earlier the day it happened; and T.C.’s mother had gone

      to the grocery store and her grandmother was at a friend’s house next door at

      the time of the molestation.


[4]   The State charged Williams with two counts of child molesting, one as a Level

      1 felony and one as a Level 4 felony. The State also alleged that Williams was

      a habitual offender. At the ensuing bench trial, the State presented four

      witnesses: M.C., T.C.’s neighbor K.N., Parker, and T.C. The witnesses’

      testimony corroborated T.C.’s allegation that the molestation had occurred on

      November 11, 2015, when a large party was going on at K.N.’s house. But the

      witnesses’ testimony was inconsistent regarding whether Williams was at T.C.’s



      1
        Apparently, Parker told someone at DCS that T.C. had told her that the incident occurred in February
      2015.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-2016 | March 28, 2017           Page 3 of 7
      house when M.C. left for the store, how long M.C. was at the store, and what

      time Williams showed up at the party. In addition, T.C.’s testimony differed

      from the DCS reports of its investigation regarding the date of the incident and

      what Williams had been doing before he stuck his hand down T.C.’s pants. At

      the conclusion of the bench trial, the trial court found Williams guilty as

      charged, and Williams admitted to being a habitual offender. The trial court

      entered judgment accordingly and sentenced Williams to an aggregate sentence

      of forty-five years executed. This appeal ensued.


                                     Discussion and Decision
[5]   In reviewing a sufficiency of the evidence claim, we do not reweigh the

      evidence or assess the credibility of the witnesses. Sharp v. State, 42 N.E.3d 512,

      516 (Ind. 2015). Rather, we look to the evidence and reasonable inferences

      drawn therefrom that support the judgment, and we will affirm the conviction if

      there is probative evidence from which a reasonable jury could have found the

      defendant guilty beyond a reasonable doubt. Id.


[6]   Williams’ sole contention on appeal is that T.C.’s testimony was incredibly

      dubious and cannot support his convictions. The incredible dubiosity rule

      allows an appellate court to “impinge on the jury’s responsibility to judge the

      credibility of the witnesses only when it has confronted inherently improbable

      testimony or coerced, equivocal, wholly uncorroborated testimony of incredible

      dubiosity.” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (citations omitted).

      In Moore, our supreme court clarified that “the appropriate scope of the


      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-2016 | March 28, 2017   Page 4 of 7
      incredible dubiosity rule as utilized in Indiana and other jurisdictions requires

      that there be: 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.


[7]   Here, Williams’ argument focuses on the inconsistencies between the DCS

      reports on its investigation into T.C.’s allegations, including interviews with

      T.C., and T.C.’s trial testimony, as well as the inconsistencies in the trial

      witnesses’ testimony regarding the timeline of certain events. But Williams

      cannot satisfy the first prong of the Moore test because four witnesses testified at

      trial. And Williams cannot satisfy the third prong because the State presented

      circumstantial evidence to support T.C.’s testimony, namely, M.C.’s and

      K.N.’s testimony that T.C. arrived at the party on November 11, 2015, crying

      and upset. Because Williams cannot satisfy the first and third prongs of the

      Moore test, we need not address the second prong. Williams’ contention on this

      issue is without merit, and the State presented sufficient evidence to support his

      convictions.


[8]   That being said, we raise another issue sua sponte, namely, whether Williams’

      convictions violate double jeopardy principles. Entry of conviction for both an

      offense and a lesser-included offense “is impermissible under both state and

      federal double jeopardy rules.” Wentz v. State, 766 N.E.2d 351, 359-60 (Ind.

      2002). An offense is an inherently lesser included offense when it may be

      established by proof of the same material elements or less than all the material

      elements that define the “greater” crime charged. Smith v. State, 881 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-2016 | March 28, 2017   Page 5 of 7
      1040, 1046 (Ind. Ct. App. 2008). Stated another way, an offense is an

      inherently lesser included offense “if it is impossible to commit the greater

      offense without first having committed the lesser.” Bush v. State, 772 N.E.2d

      1020, 1023-24 (Ind. Ct. App. 2002) (citing Zachary v. State, 469 N.E.2d 744, 749

      (Ind. 1984)), trans. denied. Of course, “if the evidence indicates that one crime is

      independent of another crime, it is not an included offense.” Wilhelmus v. State,

      824 N.E.2d 405, 416 (Ind. Ct. App. 2005) (citing Ingram v. State, 718 N.E.2d

      379 N.E.2d 381 (Ind. 1999)). Thus, whether an offense is included in another

      “requires careful examination of the facts and circumstances of each particular

      case.” Iddings v. State, 772 N.E.2d 1006, 1017 (Ind. Ct. App. 2002), trans.

      denied.


[9]   Here, Williams was convicted of child molesting, as a Level 1 felony, and child

      molesting, as a Level 4 felony. Indiana Code Section 35-42-4-3 (2017) provides

      in relevant part as follows:

                (a) A person who, with a child under fourteen (14) years of age,
                    knowingly or intentionally performs or submits to sexual
                    intercourse or other sexual conduct commits child molesting,
                    a Level 3 felony. However, the offense is a Level 1 felony if:

                      (1) it is committed by a person at least twenty-one
                      (21) years of age[.]

                                                     ***

                (b) A person who, with a child under fourteen (14) years of age,
                performs or submits to any fondling or touching, of either the child
                or the older person, with intent to arouse or to satisfy the sexual


      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-2016 | March 28, 2017   Page 6 of 7
               desires of either the child or the older person, commits child
               molesting, a Level 4 felony.


[10]   Child molesting, as a Level 4 felony, is a lesser-included offense of child

       molesting, as a Level 1 felony. And evidence of the same act of molestation,

       namely, Williams’ placing his finger in T.C.’s vagina on a single occasion, was

       used to support both convictions. We hold that Williams’ convictions violate

       the prohibition against double jeopardy, and we reverse his conviction for child

       molesting, as a Level 4 felony. Because the trial court ordered his sentences to

       run concurrently, and because the trial court enhanced the Level 1 felony for

       the habitual offender adjudication, there is no need for resentencing.


[11]   Affirmed in part and reversed in part.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-2016 | March 28, 2017   Page 7 of 7
