      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                  FILED
      court except for the purpose of establishing                           Apr 30 2019, 8:14 am
      the defense of res judicata, collateral
                                                                                 CLERK
      estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court



      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      – Appellate Division                                     Chandra Hein
      Loren J. Comstock                                        Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      John Beeler,                                             April 30, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1634
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Jeffrey L. Marchal,
      Appellee-Plaintiff.                                      Magistrate
                                                               Trial Court Cause No.
                                                               49G06-1612-F1-48357



      Mathias, Judge.


[1]   John Beeler (“Beeler”) appeals his conviction and sentence for child molesting

      as a Level 1 felony after a bench trial in Marion Superior Court. He argues that


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019                 Page 1 of 15
      the evidence was insufficient to support the conviction and that his thirty-year

      sentence was an abuse of discretion. We affirm.


                                  Facts and Procedural History

[2]   H.W., who was eight at the time of the events in this case, attended the day

      care at Charity Church Ministry (“Charity”). She attended the before and after

      school care program and took the bus to Christel House Academy West

      (“Christel House”). Beeler was H.W’s caregiver at Charity before she took the

      bus to school. His role was to watch the children then escort them to the bus to

      get to their school. Beeler also drove a bus, but not the bus that H.W. rode.


[3]   On December 5, 2016, when H.W got off the bus at Christel House, she

      approached her teacher, Kelly Lenkay (“Lenkay”) and asked to speak with her.

      Lenkay observed that H.W. seemed “[v]ery nervous” and “just kind of flat in

      her tone.” Tr. Vol. II, p. 23. H.W. had an emoji toy with her. Lenkay told

      H.W. to wait in the hallway while she secured the other kids then spoke

      privately with H.W. H.W. told her teacher, “I was at the daycare when it

      happened, and I saw something long and brown, and I had a yellow blindfold

      on, and [Beeler] had stuck something in my mouth.” Tr. Vol. II, p. 59. Lenkay

      thanked H.W. for telling her what had happened and told her that she intended

      to report it immediately.


[4]   H.W. testified at the bench trial regarding what happened while she was at

      before school care:



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 2 of 15
              [Beeler] would take all the kids from the first classroom and bring
              them to the sanctuary, which is the after schoolers’ classroom.
              Then, um, he would take, he would leave everybody else in one
              of the cubicle classrooms and he would take me to the snack
              room, and he would get, um, he would get one of the snacks that
              we had and, um, he would get a blindfold, and he would put the
              snack in my mouth. It was liquid. And he would put it in my
              mouth and make sure there is a blindfold on me and he would
              ask can you see anything, and I said no. I mean, I said, yes, and
              he would tighten it to make sure that I couldn’t see anything.
              And he would tell me to bend over, and this is by the snack
              room. And he said, um, do not use your teeth, and um, he had
              dipped something in there the first time with a dark, he had put a
              dark blue bandanna [sic] over my eyes and he would dip
              something in the snack, and um, he would put it in my mouth.


      Tr. Vol. II, pp. 43–44. He also told her to “‘put it in your mouth as far as you

      can.’” Id. at 47. H.W. felt something “round” in her mouth and that it was

      “warm.” Id. at 47, 48. On one occasion, she moved away because “it filled up

      my whole mouth.” Id. at 48. When she asked Beeler what he was putting in her

      mouth, he told her it was one of the soft foam blocks, or one of the emoji rings

      that he gave her. The emoji ring is “a ring that’s yellow and has an Emoji face

      on it, and, um, it can glow.” Id. at 49. She testified that she put both of these

      objects in her mouth and they did not feel like what Beeler put in her mouth. At

      the time he placed the object in her mouth, she was not sure what it was.

      However, at trial, she was sure it was his penis.

[5]   The snacks she remembered Beeler using were applesauce and yogurt. Beeler

      would first take her into the snack room then would take her into another room.

      This second room was used for storage, and no one ever played in there. Every

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 3 of 15
      time she played this game with Beeler, it occurred in the same room, and the

      lights were off every time. The blinds in the room were shut.

[6]   H.W. also testified that Beeler normally used dark blue blindfolds, but on the

      last occasion on December 5, 2016, he used a yellow blindfold. When he used

      this yellow blindfold, Beeler asked H.W. if she could see. H.W. told Beeler she

      could not see; however, she could actually see through the yellow blindfold. Id.

      at 54. On this occasion, she was able to see that Beeler was placing “something

      brown, um, long, round on the sides” in her mouth. Id. She testified that she did

      not know what it was at the time, and that then she thought it was brown, long

      and “[i]t was where his crotch was, and it was the same color as his skin, and it

      was, um, it was very close to his body.” Id. at 57. When this game was over, she

      and Beeler joined the remainder of the children in his care and Beeler escorted

      them to the bus.

[7]   After speaking with H.W., Lenkay called the school’s counselor, Emily Yang

      (“Yang”). Yang then took H.W. with her to the counseling office. Yang

      testified that as she approached Lenkay and H.W., H.W. appeared upset, in

      shock, and like she did not want to be around other people. Since H.W.

      appeared visibly upset, Yang took H.W. to her office. The two talked, and

      H.W. told her that


              [Beeler] had taken her into a closet at Charity just with the two of
              them where they had played a game that she had to guess the
              snack of the day. And she said she had played the game with him
              before and he would always use a blindfold. On the previous
              occasions, he had used a dark blue blindfold, and on this

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 4 of 15
              occasion, it had been a yellow blindfold, so she was able to see
              through it. She demonstrated for me. She stood up and leaned
              over, and said that’s what she had to do as part of the game, and
              she was supposed to taste what the snack was for the day. Um.
              She said it was either yogurt or applesauce or ranch on the
              different occasions that they had done this, and she said some of
              the rules of the game were you had to taste at the back of your
              mouth and you also had to not use your teeth. Um. She said- oh,
              excuse me, let me add. Um. She said because it had been a
              yellow blindfold that day, she had been able to see through it,
              and she told me she believed it was his private part. Uh. At that
              time, I asked her, because we do body safety at school so
              students learn vocabulary for body parts, I asked her, “what do
              you mean by private part,” and she said his penis.


      Id. at 135. Yang walked H.W. back to class and made a report to the

      Department of Child Services. She also alerted her principal because of the

      nature of the report and because the school had a close working relationship

      with Charity. Yang testified that she was eventually able to make contact with

      H.W.’s mother, Yolanda Wilburn (“Wilburn”), who worked as a teacher at

      Charity. Wilburn came to the school and spoke with her and H.W. about the

      incident.


[8]   Wilburn testified that H.W. is an only child and has attended Charity since

      infancy. Wilburn took H.W. to work with her around 5:45 a.m. and then,

      sometime before 7:00 a.m., H.W. entered the before care program, where, for a

      time, Beeler was her teacher until she got on the bus to go to Christel House.

      When H.W. went into the before care program with Beeler, Wilburn would

      work in the receiving room, in a different section of the building.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 5 of 15
[9]    On that day, Wilburn was notified by her boss that Christel House was trying to

       get in touch with her. Wilburn immediately drove to Christel House. At

       Christel House, she met with Yang, who explained what had happened.

       Wilburn then spoke with H.W., who told her what had happened. H.W. told

       Wilburn she wanted to stay at school because it made her feel better and she

       wanted to finish her classwork. Wilburn then went to return to work; however,

       she sat in her van because she did not feel capable of driving. Her boss, Juaneka

       Ennis, came to take her back to Charity. Kevin Essettt (“Essettt”), the Human

       Resources director for Charity, drove Wilburn’s van for her.


[10]   Wilburn remembers “[H.W.] asking me about did she have to go to after school

       care, or did she have to go with the teachers” a little bit before these events. Tr.

       Vol. II, p. 92. These questions were not typical of H.W.; she had not asked

       these sorts of questions since she was much younger, about two or three years

       old. Wilburn knew Beeler for about as long as she had worked at Charity. She

       also knows his wife, children, and grandchildren. Prior to these events, she had

       a good working relationship with him. She also testified that about a week or so

       before the events at issue, Beeler approached her “and asked me if he could take

       [H.W.] out, um, maybe take her to a game or something, and offered to, you

       know, wanted to know if it would be okay if she could like spend the night over

       to the house or something like that, with him and his grandkids.” Id. at 78.

       Although his requests did not seem odd to her at the time, Wilburn did not

       allow this because she does not generally let H.W. spend nights at anybody’s

       house.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 6 of 15
[11]   Before that day, H.W. was one of Lenkay’s best students, “always very happy,

       willing to help, very smiley.” Id. at 28. On December 5, 2016, H.W. was flat

       and nervous all day. After December 5, 2016, H.W. would have numerous

       breakdowns, become very nervous or self-conscious, or refuse to speak with

       Lenkay or Yang. Id. at 30. While Lenkay no longer teaches H.W., she still sees

       her every day and has observed that H.W. still seems nervous. Yang testified

       that she did not believe that H.W. has returned to the demeanor she had before

       December 5, 2016. In the months afterward, H.W. would come to her

       frequently asking for a break from class because she would be overwhelmed

       with anxiety, mostly related to dreams she had been having related to the

       incident. She has also observed that H.W. has intense reactions when other kids

       bumped into her or if someone broke a physical boundary with her, even if the

       kid did not do that on purpose. Wilburn stated that she has noticed changes to

       H.W.’s sleep. H.W. now has nightmares, needs Melatonin to help her rest,

       wants to sleep with Wilburn more, and “she stays closer to me even more than

       she did before.” Id. at 90–91. H.W. has continued to do well academically but

       has been emotional.


[12]   Ennis, the Executive Director of Charity, has known H.W. since H.W. began

       attending Charity as an infant. Since December 5, 2016, Ennis has observed

       that H.W. will never eat the applesauce, ranch, or yogurt when it is on the

       snack menu. H.W. has also become more withdrawn compared to the child

       Ennis knew before December 5, 2016. Ennis testified that there was no reason

       for any of the school-age children to be in the room in which these events


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 7 of 15
       occurred. School-age children would be in the nearby snack room, but only

       during snack time, which was from 3:00 p.m. to 4:30 p.m. She also confirmed

       that H.W.’s mother worked in a completely separate building. The doors have

       since been removed from the storage room, and a table has been placed in front

       of the blinds preventing them from being closed. The school had cameras at the

       time, but not in this area. Additional cameras have since been installed.

[13]   Kevin Essett, the Human Resources manager at Charity, testified that his

       responsibilities included “staff interaction, discipline, hiring, firing, different

       things of that nature.” Id. at 159. On December 5, 2016, after assisting Wilburn

       back to Charity from Christel House, Essett, Ennis, and Charley Thomas,

       another member of the administration, met with Beeler. Essett asked Beeler

       about the allegations. Essett testified that, on that day, Beeler affirmed that he

       would have H.W. go into a closet or dark room, place a dark blue blindfold on

       her, and she would have to bend over to put something in her mouth, usually

       applesauce, yogurt, or ranch. Beeler also confirmed that he would give her an

       emoji ring at the end of the surprise and that she would have to taste it at the

       back of her throat. Beeler denied placing his penis in her mouth.


[14]   About a week later, Essett also had a second meeting with Beeler, where Beeler

       informed him that he and H.W. were playing “Fear Factor.” Essett then

       became confrontational with Beeler and said, “Dude, it took you a week to

       come up with this?” and “probably used some expletives.” Id. at 167. In this

       second meeting, Essett denied threatening Beeler. Beeler never provided Essett

       with an explanation of what he placed in H.W.’s mouth.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 8 of 15
[15]   Laura Fuhrman, a Forensic Child Interviewer with the Marion County Child

       Advocacy Center, testified. She is trained in forensic interviewing of children.

       She interviewed H.W. on December 6, 2016. Before the interview, all she knew

       was that the allegations were of sexual abuse and the alleged perpetrator was

       known as “Brother John.” Id. at 150. She begins interviews “blind so that

       everything I get is from the child themselves and not from any, anyone else that

       might have heard something or know something.” Id. at 149–150. H.W.

       disclosed to her “sexual abuse by Brother John.” Id. at 151. The reported sexual

       abuse had occurred the previous day, and there had been other incidents.

[16]   Detective McCurdy, the detective with the Indianapolis Metropolitan Police

       Department (“IMPD”) who was assigned to the matter, testified regarding his

       interview with Beeler. Detective McCurdy went through Beeler’s rights with

       him, and Beeler signed a waiver. Beeler, after waiving his rights, told Detective

       McCurdy that he placed a blindfold on H.W. and that “he would put different

       snacks and various objects such as applesauce, yogurt, or ranch. He would put

       something in a bowl and she would bend over and get the object out of a bowl.”

       Id. at 187. Beeler told the detective they played this game two or three times but

       varied on what color blindfolds were used. Beeler told the detective that he was

       placing the emoji rings in H.W.’s mouth. Beeler initially told the detective that

       he played this game with H.W. in a large open room and then changed it to the

       storage closet next to the snack room. Beeler also told the detective that he was

       wearing a belt that day that was hanging down and that H.W. may have

       confused his belt for the object placed in her mouth.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 9 of 15
[17]   After being advised of his right to remain silent, Beeler testified in his own

       defense at the bench trial. He testified that he was a before and after school care

       teacher. He was to take care of the school-age children, and that entailed getting

       the kids on the bus as well as driving one of the buses. He took care of H.W. in

       the morning, but she was assigned to a different teacher in the afternoon. He

       testified he played games and activities with the children at Charity, and those

       games entailed putting objects into their mouths with ranch or applesauce or

       other items. He testified that it was H.W.’s idea to add the blindfold to the

       game and that he probably played this game with her three times. Beeler

       testified that on December 5, 2016, he picked up the emoji ring, placed it in the

       ranch, and H.W. bent over to get the emoji ring out of a bowl. He never told

       her to bend down, and she retrieved the emoji ring out of a bowl of applesauce

       with her mouth. He testified that sometimes she got marshmallows out of

       applesauce or yogurt in the bowl. He testified there was also probably some

       candy, but he did not use carrot sticks or crackers. He testified that he never

       told H.W. not to use her teeth and he never used foam blocks in the game.


[18]   Beeler agreed that the lights were off in the room when they played this game,

       but that it was light enough to see her face and her body and that she was

       blindfolded. He agreed that the belt he was wearing that day was flat and

       cylindrical and did not look like a male private part. He also testified that he

       never placed his penis in H.W.’s mouth and that he never exposed himself to

       H.W. He thinks H.W. is a “good kid,” and before all of this, he never had any

       problems with her and believed she liked him. After being arrested and booked


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 10 of 15
       into the Marion County Jail, Beeler called his wife and, in a brief phone call,

       told her, “I made bad decisions.” Ex. Vol., State’s Ex. 25; Tr. Vol. II, pp. 242–

       243.


[19]   Beeler was initially charged with three counts of Child Molesting as a Level 1

       felony. After Beeler waived his right to jury trial, the State dismissed Counts II

       and III, and a bench trial was held on Count I. At the conclusion of the bench

       trial, the trial court found Beeler guilty. The trial court later sentenced him to

       thirty years in the Department of Correction (“DOC”). Beeler now appeals.


                                      Discussion and Decision

                                            I. Sufficiency of Evidence

[20]   When reviewing challenges to the sufficiency of the evidence, we do not

       reweigh the evidence or judge the credibility of the witnesses. Bond v. State, 925

       N.E.2d 773, 781 (Ind. Ct. App. 2010), trans. denied. Instead, we consider only

       the evidence most favorable to the verdict and the reasonable inferences drawn

       therefrom, and we will affirm if the evidence and those inferences constitute

       substantial evidence of probative value to support the verdict. Id. Reversal is

       appropriate only when a reasonable trier or fact would not be able to form

       inferences as to each material element of the offense. Id.


[21]   In support of his argument that the evidence was insufficient to sustain a

       conviction, Beeler largely relies on his challenge to H.W.’s testimony as

       incredibly dubious. The incredible dubiosity standard is a difficult standard to

       meet and requires great ambiguity and inconsistency in the evidence. Moore v.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 11 of 15
       State, 27 N.E.3d 749, 756 (Ind. 2015). It applies only in limited circumstances.

       Id. at 754. “For the incredible dubiosity rule to apply, the evidence presented

       must be so unbelievable, incredible, or improbable that no reasonable person

       could ever reach a guilty verdict based upon that evidence alone.” Id. at 751.


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               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.


       Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (quoting Love v. State, 761

       N.E.2d 806, 810 (Ind. 2002)).


[22]   Here, we do not see great ambiguity, nor do we see inconsistency in the

       evidence. H.W.’s testimony is unequivocal and, while appalling, is not

       inherently improbable. We see corroboration with H.W. having told her school

       counselor the same story. Multiple adults testified that they have observed

       personality and emotional changes in H.W. since December 5, 2016. Beeler

       himself admitted that the vast majority of H.W.’s testimony is true: that they

       played a game in a storage room near the snack room, that he used blindfolds,

       that the lights were off and the blinds were shut, that he used applesauce,

       yogurt, or ranch, that she had to place objects in her mouth, and that he gave

       H.W. emoji rings as rewards. Beeler asks us to discount only one portion of

       H.W.’s story: precisely what it was that he placed in her mouth. Given the facts

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 12 of 15
       and circumstances, and that Beeler only asks us to discount a small portion of

       H.W.’s story, we do not believe that the evidence presented was so

       unbelievable, incredible, or improbable that no reasonable person could ever

       reach a guilty verdict based upon it.


[23]   Because the evidence in this matter is not incredibly dubious, and because we

       are not free to reweigh the evidence or judge credibility on appeal, we cannot

       conclude that the evidence presented in this matter was insufficient.


                                   II. Abuse of Discretion in Sentencing

[24]   The trial court abuses its discretion only if its sentencing decision is “clearly

       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom.”

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). A trial court abuses its

       discretion by: (1) failing to enter a sentencing statement, (2) finding aggravating

       or mitigating factors unsupported by the record, (3) omitting mitigating factors

       clearly supported by the record and advanced for consideration, or (4) giving

       reasons that are improper as a matter of law. Id. at 490-91. Beeler’s conviction

       carries a sentence of between twenty and forty years with the advisory sentence

       being thirty years. Ind. Code § 35-50-2-4(b).


[25]   Beeler argues that his thirty-year sentence to the DOC is excessive in light of his

       minimal criminal record. The trial court stated that it considered Beeler’s

       position of trust with children at the daycare as an aggravating factor and his




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 13 of 15
       relative lack of criminal history as a mitigating factor.1 The trial court balanced

       these aggravating and mitigating factors equally, sentencing Beeler to the

       advisory sentence of thirty years. The trial court also made clear, after Beeler’s

       arguments to the contrary, that it was not punishing him for exercising his

       constitutional right to a trial.


[26]   Beeler raises many arguments that the thirty-year sentence was an abuse of

       discretion. He argues that the trial court’s consideration of “substantially

       uncorroborated testimony of the victim given the allegations in this case

       constituted reasons that are improper as a matter of law.” Appellant’s Br. p. 12.

       Specifically, he argues that the trial court should not have found H.W.’s

       testimony to be more credible than his denials and reiterates that the evidence

       in the matter was incredibly dubious. We have already concluded that the

       evidence presented was not incredibly dubious, and we are not free to reweigh

       the evidence on appeal. We also do not see any evidence or statements by the

       court that it sentenced him for acts other than that for which he was convicted.

       As such, we do not conclude that the trial court abused its discretion when

       sentencing Beeler.


                                                        Conclusion
[27]   Because the State presented sufficient evidence, and because the evidence was

       not incredibly dubious, we do not set aside Beeler’s conviction. We also




       1
           Beeler’s only prior offense was a driving offense that is twenty-six years old.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019        Page 14 of 15
       conclude that Beeler’s thirty-year sentence to the DOC was not an abuse of

       discretion.

[28]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1634 | April 30, 2019   Page 15 of 15
