MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Mar 01 2018, 5:26 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Thomas Lowe                                           Curtis T. Hill, Jr.
Jeffersonville, Indiana                                  Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy Samples,                                         March 1, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         10A01-1702-CR-425
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Andrew Adams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         10C01-1410-FB-219



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018       Page 1 of 12
[1]   Timothy P. D. Samples appeals following his convictions for two counts of

      sexual misconduct with a minor, one as a Class B felony and one as a Level 4

      felony.1 Samples raises the following issues on appeal:


              1. Did the State commit prosecutorial misconduct rising to the
              level of fundamental error?


              2. Did the State present sufficient evidence to support Samples’s
              convictions?


              3. Did the trial court abuse its discretion in calculating credit
              time?


[2]   We affirm.


                                         Facts & Procedural History


[3]   Samples and T.M. have been friends since both men were eighteen years old.

      In early 2014, Samples and T.M. worked together, and T.M. often brought

      S.M., his then-fourteen-year-old daughter, into the office. In April 2014,

      Samples, who was thirty-five years old at the time, began exchanging sexually

      explicit Facebook messages with S.M. T.M. discovered the messages and

      confronted Samples, telling him, “she’s fucking fourteen.” Transcript at 12. At

      the time, Samples appeared remorseful and blamed his actions on his drinking




      1
        The charges were based on two separate incidents, one occurring shortly before and the other occurring
      shortly after the effective date of the statutory amendments replacing the former Class A through D felony
      classification system with the current Level 1 through 6 system.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018              Page 2 of 12
      and drug use. T.M. took away S.M.’s smartphone and deleted her Facebook

      account, and believed that the relationship between S.M. and Samples had

      come to an end.


[4]   To the contrary, Samples continued to pursue a relationship with S.M., albeit

      by more secretive means. Around the end of April 2014, Samples contacted

      S.M. through a classmate and provided her with a fake Facebook account they

      used to communicate. The sexually explicit messaging continued, and shortly

      after S.M.’s fifteenth birthday in late June 2014, Samples picked S.M. up near

      her home, drove her to a nearby parking lot, and had sexual intercourse with

      her in the back of his SUV. Afterwards, Samples dropped S.M. off near her

      home and left.


[5]   Samples’s next encounter with S.M. occurred on July 20, 2014. Samples again

      picked S.M. up and drove her to a different parking lot, and the two engaged in

      oral sex and sexual intercourse in the back of Samples’s SUV. A police officer

      noticed the SUV and pulled in to investigate because it matched the description

      of a stolen vehicle. When the officer pulled up behind the SUV, he saw that it

      was rocking side to side. Samples and S.M. were engaged in sexual intercourse

      at that point, and when Samples looked up and saw the police car, he said, “I’m

      caught.” Id. at 53.


[6]   Samples quickly got into the driver’s seat and drove off with the police officer in

      pursuit. Samples told S.M. to get dressed and when he got close to her

      apartment complex, he told her to get out and run. S.M. did so, and when the


      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 3 of 12
      officer shouted at her to stop, she did not comply. The officer then stopped

      Samples’s SUV and ordered him out of the vehicle. Samples claimed that the

      girl who had run from the vehicle was a nineteen-year-old named Misty whom

      he had met on a dating website, but a resident of the apartment complex

      identified her as S.M.


[7]   On July 22, 2014, Samples consented to a police interview, in which he

      admitted to having oral sex with S.M. on July 20, but denied that sexual

      intercourse had occurred on that date. Samples also admitted that he had

      engaged in sexual intercourse with S.M. on another occasion. Samples stated

      further that S.M. claimed to be sixteen years old, which he believed was the age

      of consent.


[8]   As a result of these events, the State charged Samples with two counts of sexual

      misconduct with a minor. A two-day jury trial commenced on November 16,

      2016, at the conclusion of which Samples was found guilty as charged. On

      January 26, 2017, Samples was sentenced to concurrent terms of fifteen years

      with five years suspended for the Class B felony and twelve years with six years

      suspended for the Level 4 felony. Samples now appeals.


                                      1. Prosecutorial Misconduct


[9]   Samples first argues that the State committed prosecutorial misconduct by

      eliciting testimony concerning Samples’s invocation of his right to counsel and

      by making certain comments during closing argument. Conceding that he



      Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 4 of 12
failed to properly preserve this issue, Samples argues that the allegedly improper

conduct resulted in fundamental error.


        In reviewing a claim of prosecutorial misconduct properly raised
        in the trial court, we determine (1) whether misconduct occurred,
        and if so, (2) “whether the misconduct, under all of the
        circumstances, placed the defendant in a position of grave peril to
        which he or she would not have been subjected” otherwise. . . .
        To preserve a claim of prosecutorial misconduct, the defendant
        must—at the time the alleged misconduct occurs—request an
        admonishment to the jury, and if further relief is desired, move
        for a mistrial.


        Our standard of review is different where a claim of prosecutorial
        misconduct has been procedurally defaulted for failure to
        properly raise the claim in the trial court, that is, waived for
        failure to preserve the claim of error. The defendant must
        establish not only the grounds for prosecutorial misconduct but
        must also establish that the prosecutorial misconduct constituted
        fundamental error. Fundamental error is an extremely narrow
        exception to the waiver rule where the defendant faces the heavy
        burden of showing that the alleged errors are so prejudicial to the
        defendant’s rights as to “make a fair trial impossible.” In other
        words, to establish fundamental error, the defendant must show
        that, under the circumstances, the trial judge erred in not sua
        sponte raising the issue because alleged errors (a) “constitute
        clearly blatant violations of basic and elementary principles of
        due process” and (b) “present an undeniable and substantial
        potential for harm.” . . . Fundamental error is meant to permit
        appellate courts a means to correct the most egregious and
        blatant trial errors that otherwise would have been procedurally
        barred, not to provide a second bite at the apple for defense
        counsel who ignorantly, carelessly, or strategically fail to preserve
        an error.



Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 5 of 12
       Ryan v. State, 9 N.E.3d 663, 667-69 (Ind. 2014) (citations, footnotes, and

       emphasis omitted).


[10]   Samples first argues that the State committed prosecutorial misconduct when it

       elicited testimony from the investigating detective that Samples invoked his

       right to counsel during his police interview. It is well settled that the use of a

       defendant’s assertion of his right to remain silent and/or his right to counsel,

       either to impeach or as substantive evidence, violates the Fourteenth

       Amendment due process clause. Willsey v. State, 698 N.E.2d 784, 791-92 (Ind.

       1998) (citing, inter alia, Doyle v. Ohio, 426 U.S. 610 (1976), and Wainwright v.

       Greenfield, 474 U.S. 284 (1986)). This rule does not, however, bar any mention

       whatsoever of a defendant’s decision to invoke his rights—the central question

       is the particular use to which such evidence is put. Id. at 793. That is, the

       prosecution may not use a defendant’s decision to remain silent or seek the

       advice of counsel in order to create an inference of guilt. Id. at 792.


[11]   In this case, the investigating detective testified that he was unable to complete

       his interview of Samples because Samples invoked his right to counsel. But

       nothing in the record suggests that the State intentionally elicited this

       testimony. More importantly, the State did not comment on or otherwise “use”

       the testimony for any reason, let alone to create an inference of guilt or lack of

       credibility.2 To the contrary, it was Samples himself who made use of the



       2
        We also note that the jury was instructed that it was not to consider Samples’s decision to remain silent in
       any way in determining his guilt or innocence.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018                Page 6 of 12
       testimony: he emphasized that he invoked his right to counsel after the

       detective said that S.M. was only fifteen, hoping that the jury would infer that

       up to that point he believed that she was sixteen, that his sexual contact with

       her was therefore legal, and that he had no need for a lawyer. Transcript at 170-

       76, 216-17. Accordingly, the State did not commit misconduct in relation to

       the detective’s testimony that Samples invoked his right to counsel.


[12]   Samples next argues that the State committed misconduct in closing argument

       by once referring to a statement Samples made during his police interview as

       testimony. It is apparent to us that the prosecutor merely misspoke, and

       Samples makes no attempt to explain how this one passing misstatement could

       have harmed him, particularly given that the jury was well aware that Samples

       had not testified. The prosecutor’s statement did not place Samples in grave

       peril, and it certainly did not rise to the level of fundamental error.


[13]   Finally, Samples takes issue with the prosecutor’s statements in closing

       argument that the onus was on Samples to know S.M.’s age. Samples argues

       that this was a misstatement of the applicable law, and in support, he directs

       our attention to Ind. Code § 35-42-4-9(c), which provides that “[i]t is a defense

       that the accused person reasonably believed that the child was at least sixteen

       (16) years of age at the time of the conduct.”


[14]   As this court has explained, knowledge of the victim’s age is not an element of

       the crime of sexual misconduct with a minor. Wilson v. State, 4 N.E.3d 670, 676

       (Ind. Ct. App. 2014), trans. denied. Rather, it is an affirmative defense that that


       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 7 of 12
       a defendant reasonably believed that the victim was at least sixteen years old.

       Id. at 677. Accordingly, the defendant bears the initial burden of establishing

       his reasonably mistaken belief as to the victim’s age by a preponderance of the

       evidence. Id. at 676-77. Once the defendant has sufficiently raised such a

       defense, the prosecution bears the ultimate burden of negating it beyond a

       reasonable doubt. Id. at 676.


[15]   In closing argument, the State discussed the affirmative defense set forth in I.C.

       § 35-42-4-9(c) and accurately stated that Samples bore the burden of establishing

       his reasonable belief that S.M. was sixteen or older by a preponderance of the

       evidence. It was in discussing this affirmative defense that the State asserted

       that the onus was on Samples to know S.M.’s age. When viewed in this

       context, we believe the prosecutor’s statements in this regard were a fair

       statement of the law. Moreover, to the extent that these statements might be

       viewed as an imprecise statement of the law, we note that the jury received

       clear instructions on the affirmative defense set forth in I.C. § 35-42-4-9(c).

       Under these circumstances, we cannot conclude that the prosecutor’s

       statements placed Samples in grave peril, and they certainly did not rise to the

       level of fundamental error.


                                      2. Sufficiency of the Evidence


[16]   Samples next argues that the State presented insufficient evidence to support his

       convictions. In reviewing a challenge to the sufficiency of the evidence, we

       neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.


       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 8 of 12
       State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the

       evidence supporting the conviction and the reasonable inferences flowing

       therefrom. Id. If there is substantial evidence of probative value from which a

       reasonable trier of fact could have drawn the conclusion that the defendant was

       guilty of the crime charged beyond a reasonable doubt, the judgment will not be

       disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It

       is not necessary that the evidence overcome every reasonable hypothesis of

       innocence; rather, the evidence is sufficient if an inference may reasonably be

       drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

       (Ind. 2007). Further, the uncorroborated testimony of a single witness is

       sufficient to support a conviction, even where the witness in question is the

       victim. Ferrell v. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991).


[17]   In order to convict Samples of sexual misconduct with a minor as a Class

       B/Level 4 felony, the State was required to prove that Samples, while over the

       age of twenty-one, engaged in sexual intercourse or other sexual conduct with

       S.M., a child at least fourteen years of age but less than sixteen years of age. See

       I.C. § 35-42-4-9. Samples does not dispute that he engaged in sexual

       intercourse and other sexual conduct with S.M. while she was fifteen years old,

       and he concedes that he was well past the age of twenty-one when he did so.

       Instead, he invokes the affirmative defense that he reasonably believed that

       S.M. was at least sixteen years of age at the time of the conduct. See I.C. § 35-

       42-4-9(c). In making this argument, Samples asks us to disregard the testimony

       of S.M. and T.M. as incredibly dubious.


       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 9 of 12
[18]   The doctrine of incredible dubiosity allows a reviewing court to reevaluate the

       credibility of a witness when “a sole witness presents inherently improbable

       testimony and there is a complete lack of circumstantial evidence.” Fajardo v.

       State, 859 N.E.2d 1201, 1208 (Ind. 2007). “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.” Id. The rule

       does not apply when testimony is corroborated by additional witnesses or

       circumstantial evidence. Thompson v. State, 765 N.E.2d 1273, 1274 (Ind. 2002).


[19]   The incredible dubiosity rule has no application here. S.M. testified that she

       and Samples talked about her age “over and over” because they were afraid of

       being caught and knew that Samples would go to jail if that happened.

       Transcript at 40, 49. Moreover, when T.M. confronted Samples about the

       sexually explicit messages he discovered in April 2014, just a few months before

       the offenses in this case took place, he told Samples, “she’s fucking fourteen.”

       Id. at 12. S.M. corroborated her father’s testimony in this regard. Further,

       Samples had known T.M. for many years and they worked together at the time

       of the offenses. S.M. had accompanied her father to work on multiple

       occasions. Moreover, Samples went so far as to create fake Facebook profiles

       to allow him to pursue a relationship with S.M. in secret, and he lied about

       S.M.’s name and age to the officer who stopped him after the July 20, 2014

       offense. In short, neither S.M. nor T.M. was a sole witness, there is nothing

       inherently improbable or incredibly dubious about their testimony, and their

       testimony is not uncorroborated. Samples’s incredible dubiosity argument is a


       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 10 of 12
       thinly veiled request to reweigh the evidence and judge the credibility of

       witnesses, which we will not indulge.


                                                3. Credit Time


[20]   Finally, Samples argues that the trial court erred in calculating the amount of

       credit time to which he was entitled for time spent on community corrections

       day reporting and work release prior to trial. Presentence jail time credit is a

       matter of statutory right rather than judicial discretion. Weaver v. State, 725

       N.E.2d 945, 948 (Ind. Ct. App. 2000). “Matters of statutory interpretation,

       which inherently present a pure question of law, are reviewed de novo.” Shepard

       v. State, 84 N.E.3d 1171, 1172 (Ind. 2017).


[21]   Samples claims, without citation to the record, that he is entitled to credit for

       703 days served on community corrections day reporting and work release, as

       well as one additional day served in jail. Because Samples has provided no

       evidentiary support for this assertion, it is waived. See Legacy Healthcare, Inc. v.

       Barnes & Thornburg, 837 N.E.2d 619, 639 n. 29 (Ind. Ct. App. 2005) (declining

       to “scour the record in search of evidence in support of [a litigant’s] claims”),

       trans. denied; Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005)

       (explaining that “[a] party waives an issue where the party fails to develop a

       cogent argument or provide adequate citation to authority and portions of the

       record”), trans. denied.


[22]   Waiver notwithstanding, we note that during the sentencing hearing, the State

       and defense counsel seemed to be in agreement that Samples was entitled to

       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 11 of 12
       more credit time than the amount reflected in the Pre-Sentence Investigation

       Report (PSI). Neither side, however, provided the trial court with an alternate

       calculation. Accordingly, the trial court explained that defense counsel could

       “submit for additional days for that period that was not outlined in the [PSI].”

       Transcript at 243. Samples has not yet filed a motion for additional credit time,

       but he remains free to do so. Remand is not necessary because the trial court

       must address the merits of a motion for jail time credit at any time, so long as

       the motion identifies a sufficient factual basis for an award of additional credit

       time. Weaver, 725 N.E.2d at 948.


[23]   Judgment affirmed.


[24]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1702-CR-425 | March 1, 2018   Page 12 of 12
