                                                                     FILED
 MEMORANDUM DECISION                                            Jun 24 2016, 8:49 am

                                                                     CLERK
                                                                 Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D),                              Court of Appeals
                                                                      and Tax Court
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
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Tingle,                                           June 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1508-CR-1251
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan N.
Appellee-Plaintiff.                                      Cleary, Judge
                                                         Trial Court Cause No.
                                                         15D01-1502-F3-4



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1251 | June 24, 2016     Page 1 of 7
[1]   Robert Tingle appeals his conviction of Level 3 felony attempted rape 1 and the

      nine year sentence imposed therefor. He argues there was insufficient evidence

      to support his conviction because V.D.’s testimony was incredibly dubious. He

      further contends his sentence was inappropriate in light of his character and the

      nature of his offense. Because V.D.’s testimony was not incredibly dubious and

      Tingle’s sentence is not inappropriate, we affirm.



                                Facts and Procedural History
[2]   Tingle and V.D. were in a sexual relationship from 2010 until early 2014. On

      August 22, 2014, V.D. permitted Tingle into her home to do laundry. After

      some alcoholic drinks, the situation turned physical. V.D. told Tingle to leave,

      but he refused. He broke her washer door, the two exchanged blows, and then

      Tingle grabbed her around the neck. Tingle pushed V.D. to the ground and

      held her down. While on top of her, Tingle made sexually explicit demands

      and pulled at her underwear. V.D. managed to thwart his advances but

      sustained multiple bruises and scratches. Tingle left as V.D. called the police,

      who apprehended Tingle nearby.


[3]   Officers Kolb and Siekman, who responded to V.D.’s 911 call and located

      Tingle, noticed he smelled of alcohol. The officers questioned V.D., and they

      noticed redness and scratches on her chest and face. Visibly shaken, she told




      1
          Ind. Code § 35-42-4-1 (2014) (rape); Ind. Code § 35-41-5-1 (2014) (attempt).


      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1251 | June 24, 2016   Page 2 of 7
      them the injuries were a result of Tingle’s sexual advances. They saw that

      V.D.’s underwear were hanging down to her mid-thigh.


[4]   Following a bench trial, the court found Tingle guilty of Level 3 felony

      attempted rape. The court imposed the nine-year advisory sentence with no

      time suspended.



                                 Discussion and Decision
                                 1. Sufficiency of the Evidence
[5]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference may reasonably be drawn from it to support the verdict. Id. at

      147.


[6]   A person who knowingly or intentionally has sexual intercourse with another

      person commits rape when he compels the victim by force or imminent threat


      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1251 | June 24, 2016   Page 3 of 7
      of force. Ind. Code § 35-42-4-1. A person attempts to commit a crime when he

      acts with the requisite culpability for commission of the crime and engages in

      conduct considered to be a substantial step toward commission of the crime.

      Ind. Code § 35-41-5-1. A substantial step is any overt act beyond mere

      preparation and in furtherance of the intent to commit the crime. Williams v.

      State, 685 N.E.2d 730, 734 (Ind. Ct. App. 1997).


[7]   Tingle contends the evidence is insufficient to support his conviction because it

      rests on V.D.’s testimony, which he claims is incredibly dubious. In so doing,

      Tingle asks us to reconsider the credibility of a witness, which is a role largely

      left to the fact-finder. Drane, 867 N.E.2d at 146. We will impinge on the fact-

      finder’s role only when a sole witness gives testimony that is inherently

      contradictory, equivocal, or coerced, and there is a complete lack of

      circumstantial evidence. Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015). This

      standard is not an impossible burden to meet, but it is a difficult one, and the

      testimony must be such that no reasonable person could believe it. Id. at 756.


[8]   The incredible dubiosity rule does not apply because V.D. was not the sole

      testifying witness and her testimony was supported by circumstantial evidence.

      Tingle chose to testify, and any contradictions between their testimonies were

      placed squarely before the fact-finder. Tingle seems to argue his version of the

      facts is supported because he also sustained injuries from the incident. This

      contention, in essence, is a request for us to reweigh the evidence, which we

      cannot do. See Drane, 867 N.E.2d at 146 (appellate court does not reweigh

      evidence or judge credibility of witnesses).

      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1251 | June 24, 2016   Page 4 of 7
[9]    V.D. testified Tingle pushed her to the ground, laid on top of her, made

       sexually explicit demands, and attempted to pull off her underwear. There was

       circumstantial evidence from the responding officers to corroborate V.D.’s

       version of the events. This was sufficient to prove Tingle knowingly or

       intentionally attempted to force V.D. to have sexual intercourse with him. See

       Hughes v. State, 600 N.E.2d 130, 132 (Ind. Ct. App. 1992) (evidence sufficient to

       prove attempted rape where offender uses physical restraint and makes sexually

       explicit requests for sex even if there was no attempt to remove victim’s

       clothes).


                                     2. Inappropriate Sentence
[10]   Tingle also asserts his nine-year sentence for attempted rape is inappropriate.

       Indiana Appellate Rule 7(B) allows us to independently review and revise a

       sentence if it is inappropriate in light of the nature of the offense and the

       character of the offender. We will give the decision of the trial court due

       consideration and we recognize sentencing is principally a discretionary

       function of the trial court to which we will afford considerable deference.

       Healey v. State, 969 N.E.2d 607, 618 (Ind. Ct. App. 2012), trans. denied. In our

       review of the appropriateness of a sentence, we are not limited to considering

       aggravators and mitigators, but may consider any other facts appearing in the

       record. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The appellant carries the

       burden of persuading us that his sentence has met this standard of

       inappropriateness. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).



       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1251 | June 24, 2016   Page 5 of 7
[11]   When reviewing the nature of the offense, our starting point is the advisory

       sentence established by the legislature as the suggested sentence for a particular

       crime. McMahon v. State, 856 N.E.2d 743, 749 (Ind. Ct. App. 2006). The

       sentencing range for a Level 3 felony is three to sixteen years, with an advisory

       sentence of nine years. Ind. Code § 35-50-2-5. Tingle argues attempted rape is

       “far less serious than a forcible rape” and, thus, his offense should merit a

       shorter sentence than the advisory. (Appellant’s Br. at 17.) The Indiana

       legislature provided guidance on this issue: “An attempt to commit a crime is a

       felony or misdemeanor of the same level or class as the crime attempted.” Ind.

       Code § 35-41-5-1. Thus, Tingle’s crime is not “less serious” just because he did

       not complete it.


[12]   Nor is his crime less serious because V.D. suffered bruises but not life-

       threatening injuries. Level 3 felony rape does not require injuries of any kind,

       and if V.D.’s injuries had been life-threatening, the State could have charged

       Tingle with a Level 1 felony. Compare Ind. Code § 35-42-4-1(a) with Ind. Code

       § 35-42-4-1(b) (“results in serious bodily injury”). Asserting the harm could

       have been a lot worse is not a good justification for reducing the punishment

       from the advisory sentence. See French v. State, 516 N.E.2d 40, 44-45 (Ind.

       1987) (affirmed presumptive sentence for attempted rape and rejected offender’s

       argument that sentence should be lower than the presumptive because there was

       no physical harm, no touching of privates, and no prior felony convictions).


[13]   As for Tingle’s character, his criminal history is a telling factor to consider. The

       significance of a criminal history in assessing a defendant’s character and an

       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1251 | June 24, 2016   Page 6 of 7
       appropriate sentence varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense. Rutherford v. State, 866 N.E.2d 867,

       874 (Ind. Ct. App. 2007). Tingle argues the advisory sentence of nine years is

       excessive for someone who has never been to prison. However, this is not

       Tingle’s first offense. Tingle has misdemeanor convictions of possession of a

       Schedule V controlled substance in 1998, possession of paraphernalia and

       marijuana in 2002, and public intoxication in 2007. The public intoxication

       conviction resulted in a protective order. The punishments for those offenses,

       which did not include prison time, appear not to have rehabilitated Tingle. See

       Thomas-Collins v. State, 868 N.E.2d 557, 561 (Ind. Ct. App. 2007) (affirmed

       advisory sentence for two felonies that were preceded by five misdemeanor

       convictions in which the offender did not respond positively to more lenient

       punishments), trans. denied.


[14]   Based on these facts we cannot say the sentence is inappropriate in light of

       Tingle’s character or the nature of his offense.



                                               Conclusion
[15]   Sufficient evidence supported Tingle’s conviction of Level 3 felony attempted

       rape, and he did not demonstrate his sentence was inappropriate. Accordingly,

       we affirm.


[16]   Affirmed.


       Baker, J., and Brown, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-CR-1251 | June 24, 2016   Page 7 of 7
