MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 30 2018, 10:50 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
Donald R. Shuler                                        Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                      Attorney General of Indiana
Goshen, Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Wendell Manuel,                                         November 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1425
        v.                                              Appeal from the
                                                        Elkhart Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Kristine A. Osterday, Judge
                                                        Trial Court Cause No.
                                                        20D01-1603-F1-2



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018               Page 1 of 15
[1]   Wendell Manuel (“Manuel”) was convicted after a bench trial of one count of

      rape resulting in serious bodily injury1 as a Level 1 felony and one count of

      rape2 as a Level 3 felony, and the trial court imposed an aggregate sentence of

      forty-five years. Manuel appeals and raises the following issues for our review:


                 I.        Whether the State presented sufficient evidence to support
                           Manuel’s convictions; and


                 II.       Whether Manuel’s sentence is inappropriate in light of the
                           nature of the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   During the evening of August 6, 2015, C.E. was on the porch outside of her

      apartment with her brother and a co-worker when Manuel approached them.

      When he approached the porch, Manuel was holding a bottle of Amsterdam

      Peach Vodka in his hand. Although C.E. had seen Manuel before and knew he

      went by the nickname “Rock,” she did not know him well. Tr. Vol. 2 at 208-09.

      Manuel approached C.E.’s brother, who shook Manuel’s hand, and the two

      began talking. Later in the evening, C.E. went inside her apartment to use the

      restroom, leaving her brother, her co-worker, and Manuel outside on the porch.

      She locked the screen door behind her and went upstairs to the restroom.




      1
          See Ind. Code § 35-42-4-1(a),(b)(3).
      2
          See Ind. Code § 35-42-4-1(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 2 of 15
      When she came back down the stairs, Manuel was standing in her living room,

      and both the front door and sliding door were locked.


[4]   C.E. asked Manuel what he was doing in her house and told him to leave. Id.

      at 214. Manuel responded, “Fuck that,” he wanted some “pussy.” Id. at 215.

      C.E. told Manuel to “get the fuck out of [her] house.” Id. Manuel then

      grabbed C.E. by the hair and backhanded her across the mouth with his right

      hand, causing C.E. to lose consciousness. Id. at 216. When C.E. regained

      consciousness, she was lying on her back on the living room floor. C.E. was

      naked from her waist down, and she felt pain as if she had vaginal intercourse.

      Id. at 217, 222. Manuel was standing over her with his pants pulled down and

      his erect penis exposed. Id. at 217, 223. C.E. then heard Manuel say “[f]uck

      that, I want some head,” which she interpreted to mean that he wanted oral

      sex. Id. at 223. C.E. approached Manuel on her knees and put his penis in her

      mouth because she was intimidated by Manuel since he already struck her

      once. Id. at 224. C.E.’s mouth was bleeding from being hit in the face, so she

      stopped and told Manuel that she needed to rinse the blood out of her mouth.

      Id. Manuel told C.E. to “hurry up.” Id. C.E. then walked toward the kitchen,

      unlocked the door, and ran to a neighbor’s apartment.


[5]   When she reached her neighbor’s apartment, C.E. was hysterical and repeated,

      “[h]e was in my apartment.” Id. at 226. C.E. then told her neighbor that C.E.’s

      two-year-old daughter was still sleeping upstairs in her apartment, but she was

      scared to go back. Id. at 226-27. The neighbor went to C.E.’s apartment and

      determined that Manuel had left. C.E. returned to her apartment and called her

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 3 of 15
      cousin. Her cousin came over and convinced her to report the incident to the

      police. Id. at 228.


[6]   When the responding officer arrived at C.E.’s apartment just after 5:00 a.m., he

      found C.E. in her upstairs bedroom. The officer observed that C.E. seemed

      overwhelmed and in a state of shock and that “she was just kind of laying [sic]

      there motionless” and did not want to answer questions. Id. at 109, 111-12.

      The officer noticed that C.E. had swelling to the right side of her face and that

      the right side of her lips were “very swollen”; she also had an abrasion on her

      left knee. Id. at 112, 128-29; State’s Exs. 28-30. The officer observed that C.E.’s

      apartment was generally “picked up and organized,” but there were signs of a

      disturbance in the living room where C.E. reported the rapes occurred. Tr. Vol.

      2 at 119-20; State’s Exs. 4-27. A glass of liquid had been spilled, which left a

      fresh stain on the carpet, and a t-shirt, a pair of socks, and a box cutter were

      lying on the floor. Tr. Vol. 2 at 121-23; State’s Exs. 4-10. A bottle of Amsterdam

      Peach Vodka was sitting on C.E.’s kitchen table. Tr. Vol. 2 at 133-34; State’s Ex.

      12. C.E. later testified that the bottle of peach vodka was already on the table

      when she came down the stairs, the glass was spilled during the incident, the t-

      shirt found in the living room was the one Manuel had been wearing that

      evening, and the socks and box cutter on the living room floor did not belong to

      her. Tr. Vol. 2 at 231-32, 241, 243.


[7]   In the morning on August 7, 2015, about eight hours after she was assaulted,

      C.E. was taken to the hospital for an examination by a sexual assault nurse

      examiner. The sexual assault kit, which included vaginal and cervical swabs

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 4 of 15
      and a piece of toilet tissue used by C.E. after urination at the hospital, was sent

      to the Indiana State Police Laboratory for testing along with a buccal swab

      from Manuel for comparison. Id. at 141-42, 190. A forensic scientist

      performed serological testing on the items in the sexual assault kit. The

      presumptive test for seminal material was positive on the vaginal and cervical

      swabs, but the scientist was unable to confirm the presence of seminal material

      or develop a full DNA profile from any of the items. Id. at 192-94; State’s Ex.

      200.


[8]   The sexual assault kit was then submitted to another forensic scientist for Y-

      STR analysis, involving DNA from the Y chromosome only, which is found

      only in males and is passed on directly from a father to a son. Tr. Vol. 2 at 198.

      This type of DNA analysis is useful in situations where there is an

      overwhelming amount of female DNA present and the item of interest is the

      smaller amount of male DNA present. Id. at 198. The analyst was able to

      obtain a partial Y-STR profile from a cutting of the toilet tissue, which she

      found to be consistent with the Y-STR profile obtained from Manuel. State’s

      Ex. 300. The scientist determined that “Manuel and all his male paternal

      relatives cannot be excluded as potential Y-STR contributors to the sample.”

      Id.


[9]   Manuel was interviewed by the police and admitted that he was inside C.E.’s

      apartment that evening but claimed that he performed consensual oral sex on

      C.E. on her kitchen counter. Tr. Vol. 2 at 166; State’s Ex. 400. The police had

      Manuel demonstrate his positioning during the sexual encounter, and he

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 5 of 15
       demonstrated a kneeling position, looking up when he performed the act. Tr.

       Vol. 2 at 168; State’s Ex. 33. The police measured his height in that position and

       compared the measurements with the height of C.E.’s kitchen countertops and

       found that Manuel’s account was not physically possible. Tr. Vol. 2 167-70,

       172-173; State’s Exs. 32-33, 38-42.


[10]   On March 2, 2016, the State charged Manuel with two counts of Level 1 felony

       rape resulting in bodily injury and one count of Level 3 felony criminal

       confinement resulting in bodily injury. A bench trial was held on February 27,

       2018, and at the conclusion, the trial court took the matter under advisement.

       On March 28, 2018, the trial court issued an order finding Manuel guilty of one

       count of Level 1 felony rape resulting in bodily injury and one count of Level 3

       felony rape as a lesser included offense. The trial court found Manuel not guilty

       of Level 3 felony criminal confinement resulting in bodily injury.


[11]   A sentencing hearing was held on May 31, 2018. The trial court found the

       following aggravating circumstances: Manuel’s extensive criminal history; his

       violations of the conditions of probation and community correction; that he

       committed the instant offenses while on parole; and “that other forms of

       sanctions have proved to be unsuccessful in keeping [him] from engaging in

       criminal activity and that [he] has not taken advantage of the programming or

       alternative sanctions offered to him in the past.” Tr. Vol. 3 at 62-63. The trial

       court also noted that Manuel was laughing during the victim’s testimony at

       trial, which it considered “not only inappropriate but . . . offensive.” Id. at 61.

       The trial court found as mitigating the fact that imprisonment will result in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 6 of 15
       undue hardship to Manuel’s dependent child. Id. at 63. The trial court

       sentenced Manuel to thirty-five years for Level 1 felony rape and ten years for

       Level 3 felony rape, to be served consecutively, for an aggregate sentence of

       forty-five years in the Indiana Department of Correction. Manuel now appeals.


                                      Discussion and Decision

                                        I.      Sufficient Evidence
[12]   When we review the sufficiency of evidence to support a conviction, we do not

       reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

       928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

       evidence most favorable to the verdict and the reasonable inferences that can be

       drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

       2014), trans. denied. We also consider conflicting evidence in the light most

       favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

       App. 2013), trans. denied. We will not disturb the verdict if there is substantial

       evidence of probative value to support it. Fuentes, 10 N.E.3d at 75. We will

       affirm unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356 (Ind.

       2014). A conviction can be sustained on only the uncorroborated testimony of

       a single witness, even when that witness is the victim. Dalton v. State, 56 N.E.3d

       644, 648 (Ind. Ct. App. 2016), trans. denied.


[13]   In order to convict Manuel of rape as a Level 3 felony, the State was required to

       prove beyond a reasonable doubt that he knowingly or intentionally had sexual


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 7 of 15
       intercourse with another person or knowingly or intentionally caused another

       person to perform or submit to other sexual conduct when the other person was

       compelled by force or imminent threat of force. Ind. Code § 35-42-4-1(a)(1).

       The offense is elevated to a Level 1 felony if it results in serious bodily injury to

       a person other than the defendant. Ind. Code § 35-42-4-1(b)(3). Other sexual

       conduct is defined as an act involving: (1) a sex organ of one person and the

       mouth or anus of another person; or (2) the penetration of the sex organ or anus

       of a person by an object. Ind. Code § 35-31.5-2-221.5. Serious bodily injury is

       defined as “bodily injury that creates a substantial risk of death or that causes:

       (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4)

       permanent or protracted loss or impairment of the function of a bodily member

       or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.


[14]   Manuel argues that that the evidence presented by the State was insufficient to

       support his convictions. Specifically, he does not challenge the sufficiency of

       the evidence of any particular element of his rape convictions. Instead, Manuel

       contends that the evidence is insufficient to sustain his convictions because

       C.E.’s testimony was incredibly dubious.


[15]   In general, the uncorroborated testimony of one victim is sufficient to sustain a

       conviction. Holeton v. State, 853 N.E.2d 539, 540 (Ind. Ct. App. 2006).

       However, the “incredible dubiosity rule” provides that “a court may ‘impinge

       on the jury’s responsibility to judge the credibility of witnesses only when

       confronted with inherently improbable testimony or coerced, equivocal, wholly

       uncorroborated testimony of incredible dubiosity.’” Govan v. State, 913 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 8 of 15
       237, 243 n.6 (Ind. Ct. App. 2009) (quoting Murray v. State, 761 N.E.2d 406, 408

       (Ind. 2002)), trans. denied. The application of this rule is rare and is limited to

       situations in which a sole witness presents inherently improbable testimony

       such that no reasonable person could believe it, and there is a complete lack of

       circumstantial evidence of a defendant’s guilt. Id. The standard to be applied is

       “‘whether the testimony is so incredibly dubious or inherently improbable that

       no reasonable person could believe it.’” Morell v. State, 933 N.E.2d 484, 492

       (Ind. Ct. App. 2010) (quoting Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind.

       2007)). While the incredible dubiosity standard is not impossible to meet, it

       requires great ambiguity and inconsistency in the evidence. Moore v. State, 27

       N.E.3d 749, 756 (Ind. 2015).


[16]   Here, C.E. gave testimony at trial that Manuel entered her home, refused to

       leave, and stated he wanted some “pussy.” Tr. Vol. 2 at 215. When C.E.

       refused him and again told him to leave, he grabbed her by the hair and

       backhanded her across the right side of her mouth, which caused her to lose

       consciousness. Id. at 216. When C.E. regained consciousness, she was lying

       on her back on the living room floor, naked from her waist down, and felt pain

       as if she had vaginal intercourse, and Manuel was standing over her with his

       pants down and his erect penis exposed. Id. at 217, 222, 223. Manuel then

       demanded that he wanted oral sex from C.E. and compelled her to do so. Id. at

       223, 224. C.E.’s testimony was not so “incredibly dubious or inherently

       improbable that no reasonable person could believe it.” See Morell, 933 N.E.2d

       at 492.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 9 of 15
[17]   Manuel points to inconsistencies between statements that C.E. made to the

       police prior to trial and her testimony at trial, asserting that these

       inconsistencies make C.E.’s testimony incredibly dubious. However, “[i]t is

       well-settled that ‘discrepancies between a witness’s trial testimony and earlier

       statements made to police and in depositions do not render such testimony

       ‘incredibly dubious.’” Wolf v. State, 76 N.E.3d 911, 916 (Ind. Ct. App. 2017)

       (quoting Holeton, 853 N.E.2d at 541-42). Manuel also contends that the

       physical evidence presented at trial did not corroborate C.E.’s testimony. We

       disagree. There must be a complete lack of circumstantial evidence for

       testimony to be considered incredibly dubious. Id.


[18]   At trial, photographic evidence was presented that showed the injuries C.E.

       suffered to her lips and mouth and the abrasion to her left knee. This evidence

       corroborated C.E.’s testimony that Manuel backhanded her across the right side

       of her mouth and compelled her to perform oral sex on him while kneeling on

       the living room rug. Additionally, the Y-STR DNA profile taken from the

       toilet tissue that C.E. used after urinating was found to be consistent with the Y-

       STR profile obtained from Manuel and provided circumstantial evidence of his

       guilt. Further, photographs were presented of C.E.’s apartment, which showed

       that, although the apartment was generally orderly, the area of the living room

       where C.E. stated that the rape took place showed signs of a struggle, including

       a glass of liquid that had been spilled and several items that did not belong to

       C.E., including a t-shirt, socks, and a box cutter. This photographic evidence

       further corroborated C.E.’s testimony. Therefore, C.E.’s testimony was not


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 10 of 15
       inherently improbable or equivocal, and there was circumstantial evidence that

       was consistent with her description of what occurred, and Manuel has not

       shown that the incredible dubiosity rule should apply. Manuel’s sufficiency

       arguments are merely requests for this court to reweigh the evidence, which we

       cannot do. Boggs, 928 N.E.2d at 864. We, thus, conclude that sufficient

       evidence was presented to support Manuel’s convictions.


                                     II.     Inappropriate Sentence
[19]   Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       [c]ourt finds that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender.” Our Supreme Court has explained

       that the principal role of appellate review should be to attempt to leaven the

       outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the

       nature of Manuel’s offense and his character under Appellate Rule 7(B) with

       substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d

       344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether

       the defendant’s sentence is appropriate or if another sentence might be more

       appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.

       State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a

       sentence is inappropriate ultimately depends upon “the culpability of the

       defendant, the severity of the crime, the damage done to others, and a myriad

       of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 11 of 15
       1224. Manuel bears the burden of persuading us that his sentence is

       inappropriate. Id.


[20]   Manuel argues that his forty-five-year aggregate sentence is inappropriate under

       Appellate Rule 7(B). Specifically, as to the nature of the offense, he claims that

       there was “nothing particularly outrageous that is above and beyond what is

       necessary to establish” Level 1 felony rape and Level 3 felony rape and,

       therefore, nothing “beyond what the Legislature has determined is the

       appropriate advisory sentence” for his offenses. Appellant’s Br. at 20. As to his

       character, Manuel asserts that, although he has a criminal history, the record

       also established that, when not incarcerated, he consistently maintained

       employment, that he has positive relationships with his family, and that he had

       previously completed substance abuse classes and had not used illegal

       substances in eight years. Manuel, therefore, urges this court to find his

       sentence inappropriate.


[21]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Manuel was

       convicted of a Level 1 felony, and the advisory sentence for a Level 1 felony

       conviction is thirty years, with a range of between twenty and forty years. Ind.

       Code § 35-50-2-4(b). Manuel was also convicted of a Level 3 felony, for which

       the advisory sentence is nine years with a range of between three years and

       sixteen years. Ind. Code § 35-50-2-5(b). Manuel received a sentence of thirty-

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 12 of 15
       five years for Level 1 felony rape and ten years for Level 3 felony rape, to be

       served consecutively, for an aggregate sentence of forty-five years.


[22]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, the

       nature of the offense is that Manuel entered C.E.’s apartment without her

       invitation, locked the door, backhanded her across the face rendering her

       unconscious, and raped her while C.E.’s two-year-old daughter was asleep

       upstairs. Tr. Vol. 2 at 213, 216-17, 222. When C.E. regained consciousness,

       Manuel demanded oral sex and then forced her to put his penis in her mouth,

       even though her mouth was bleeding from being stuck earlier by Manuel. Id. at

       223-24. Manuel’s sexual assault of C.E. only concluded because she was able

       to flee the apartment after telling Manuel she needed to rinse the blood out of

       her mouth. Id. at 224-25. We do not find that Manuel’s sentence is

       inappropriate regarding the nature of his offense, which involved two sexual

       assaults after Manuel hit C.E. so hard that she lost consciousness and while a

       child was sleeping upstairs.


[23]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the

       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence presented at the

       sentencing hearing showed that Manuel has an extensive criminal history

       spanning both Indiana and Illinois. He has six prior felony convictions and

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 13 of 15
       eleven prior misdemeanor convictions, dating back to 1997, many of which

       involved battery. Appellant’s Conf. App. Vol. 2 at 118-23. Through his prior

       convictions, Manuel has been ordered to serve community service, to be placed

       on probation and in community corrections, and to serve time incarcerated.

       However, despite such opportunities, Manuel has continued to commit

       criminal offenses and has not shown he is willing to rehabilitate his criminal

       behavior. He was on parole when he committed the present offenses, and the

       record reflects that he had four pending criminal cases at the time of sentencing.

       Id. at 123. Additionally, Manuel had violated his probation and community

       corrections at least eight times in the past. Id. at 118-23. The trial court also

       noted that, as C.E. testified during trial, Manuel was laughing, which the trial

       court found “not only inappropriate, but . . . offensive.” Tr. Vol. 3 at 61. We

       conclude that, in looking at Manuel’s character, his sentence is not

       inappropriate.


[24]   Manuel asserts that his sentence is inappropriate due to his ability to maintain

       employment when he is not incarcerated, the fact he has positive relationships

       with his family, and his report of no use of illegal substance for the last eight

       years. While we agree that these things are commendable, we do not agree that

       in light of the nature of the offenses committed in the present case and in light

       of his character demonstrating a lack of respect for the law that his sentence is

       inappropriate.


[25]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 14 of 15
Vaidik, C.J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1425 | November 30, 2018   Page 15 of 15
