                                                                            FILED
                                                                    Nov 21 2018, 10:20 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana                                          Justin F. Roebel
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason M. Morris,                                         November 21, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1738
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Eric Ditton,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         20D04-1708-CM-1593



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018                           Page 1 of 15
                               Case Summary and Issues
[1]   After Jason Morris was convicted and sentenced in city court, he sought a trial

      de novo in superior court. Following a bench trial, the trial court found Morris

      guilty of public indecency, a Class A misdemeanor, and sentenced him to one

      year executed. This case presents three issues for our review: (1) whether the

      evidence is sufficient to sustain Morris’ conviction; (2) whether the trial court

      abused its discretion by imposing a harsher sentence than the city court; and (3)

      whether Morris’ sentence is inappropriate in light of the nature of the offense

      and his character. Concluding the evidence is sufficient to support Morris’

      conviction, the trial court did not abuse its discretion in sentencing Morris, and

      Morris’ sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   In April 2016, Morris picked up fourteen-year-old M.Mc. for an arranged sleep

      over with his stepdaughter, M.M. Morris was accompanied by a friend, Leann,

      and his younger daughter. Before returning to his house, Morris dropped his

      younger daughter off at a class and then drove to Goshen General Hospital so

      Leann could drop something off. Morris parked near the main entrance of the

      hospital and Morris and M.Mc. remained in his truck while Leann went inside.

      M.Mc. asked Morris for a cigarette and he asked M.Mc. what she was “going

      to do for it[?]” Transcript, Volume II at 41. Morris began discussing a 2015

      pool party that Morris, his wife, M.Mc., and M.M. attended where Morris’ wife

      had “pantsed him[,]” and M.Mc. caught a glimpse of Morris’ penis. Id. at 40.

      Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018     Page 2 of 15
      Morris asked M.Mc. if she “liked seeing [his penis]” and asked her if she would

      mind seeing it again. Id. at 41. After M.Mc. declined, Morris unzipped his

      pants and exposed his penis. Id. Although M.Mc. was sitting in the back seat

      of the truck, she testified that she saw Morris’ genitals when he exposed himself

      to her. M.Mc. looked away, stated she needed to use the restroom, and the two

      went inside the hospital. After M.Mc. used the restroom, Leann was ready and

      the three left.


[3]   M.Mc. then went to Morris’ home for the sleepover with M.M., revealed the

      incident to M.M., and attempted to contact her mother. The next day, Morris’

      wife confronted M.Mc. and accused her of stealing cigarettes. Ultimately,

      M.Mc. went home early, but prior to leaving, someone in Morris’ family

      “threatened to kill [her] family if [she] said anything.” Id. at 46. Because

      M.Mc. was “distraught, shaking, upset, and crying” when she returned, her

      mother took her to see her therapist and M.Mc. disclosed the incident, which

      the therapist then reported to child protective services. Brief of Appellee at 7;

      see also Tr., Vol. II at 67, 77


[4]   In December 2016, the State charged Morris with public indecency, a Class A

      misdemeanor. Morris was first tried in in Goshen City Court on May 25, 2017,

      and was found guilty of public indecency and sentenced to a one-year

      suspended sentence with reporting probation. Morris subsequently sought a

      trial de novo by filing a notice of appeal and the case was transferred to the

      Elkhart Superior Court. Following a bench trial on June 4, 2018, during which



      Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018     Page 3 of 15
      M.Mc. testified, the trial court found Morris guilty and sentenced him to one

      year executed in the county jail. Morris now appeals.



                                 Discussion and Decision
                               I.      Sufficiency of the Evidence
[5]   Morris challenges the sufficiency of the evidence supporting his conviction.

      Specifically, he contends his conviction was based solely on M.Mc.’s testimony,

      which he alleges was “not substantively corroborated by other evidence in the

      record” and her “mere allegations[,]” absent corroborating evidence, do not

      satisfy the burden of proof. Appellant’s Brief at 10.


[6]   Our standard of review for sufficiency of the evidence claims is well settled.

      D.J. v. State, 88 N.E.3d 236, 241 (Ind. Ct. App. 2017). Upon review, we do not

      reweigh the evidence or judge the credibility of the witnesses. Purvis v. State, 87

      N.E.3d 1119, 1124 (Ind. Ct. App. 2017). We consider only the evidence most

      favorable to the verdict and the reasonable inferences drawn therefrom. Id. We

      will affirm a defendant’s conviction if “there is substantial evidence of probative

      value supporting each element of the crime from which a reasonable trier of fact

      could have found the defendant guilty beyond a reasonable doubt.” Stewart v.

      State, 866 N.E.2d 858, 862 (Ind. Ct. App. 2007).


[7]   To convict Morris, the State was required prove each element of public

      indecency beyond a reasonable doubt. Ind. Code § 35-41-4-1(a). “A person

      who knowingly or intentionally, in a public place . . . appears in a state of

      Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018     Page 4 of 15
      nudity with the intent to arouse the sexual desires of the person or another

      person . . . commits public indecency, a Class A misdemeanor.” Ind. Code §

      35-45-4-1(a)(3).


[8]   After the bench trial, the trial court found:


              Considering all of the evidence, the credible testimony of
              [M.Mc.] and her mother, and the inconsistent and contradictory
              explanations provided by [Morris], the Court finds, beyond a
              reasonable doubt, that [Morris] committed the crime of Public
              Indecency. The Court finds that the parking lot of the Goshen
              Hospital is a ‘public place’ under Indiana Code § 35-45-4-1. The
              Court observed many different individuals in the parking lot,
              going in and out of the hospital, and driving around near
              [Morris’] red truck. The Court also finds that in exposing his
              penis, [Morris] had the intent to arouse the sexual desires of
              himself or of [M.Mc.].


      Appellant’s Appendix, Volume 2 at 106.


[9]   Morris argues M.Mc.’s testimony, without corroborating evidence, is not

      sufficient to support his conviction and that reliance solely upon M.Mc.’s

      testimony is problematic under the incredible dubiosity rule. The incredible

      dubiosity rule allows this court to “impinge upon a [fact finder’s] responsibility

      to judge the credibility of the witnesses only when confronted with ‘inherently

      improbable’ testimony.” Moore v. State, 27 N.E.3d 749, 754 (Ind. 2015). The

      rule is applied in limited circumstances, namely where there is “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.”


      Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018     Page 5 of 15
       Id. at 756. Application of the incredible dubiosity 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.” Love v. State, 761

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


[10]   In applying these factors, we conclude the incredible dubiosity rule is

       inapplicable to the present case as there were multiple testifying witnesses and

       M.Mc.’s testimony was not inconsistent within itself. See Smith v. State, 34

       N.E.3d 1211, 1221 (Ind. 2015) (explaining that the second prong is satisfied

       “only when the witness’s trial testimony was inconsistent within itself, not that

       it was inconsistent with other evidence or prior testimony”). After hearing the

       evidence, the trial court explained in its order that it found M.Mc.’s testimony

       credible:


               [Morris] wants the Court to believe that [M.Mc.] made up a story
               that [Morris] exposed his penis to her; told the false story to her
               therapist at the Bowen Center; told the same false story to a
               detective during a formal interview; lied under oath to the Judge
               of the Goshen City Court during the first bench trial; then lied
               again, under oath, to this Court. Such a conclusion is not
               reasonable.


       Appellant’s App., Vol. 2 at 105.


[11]   Moreover, M.Mc.’s testimony cannot be considered “inherently improbable”

       because evidence presented at trial corroborated her testimony. First, M.Mc.’s

       mother testified that M.Mc. was “distraught,” shaking, and crying when she

       picked M.Mc. up and drove her to the Bowen Center to see her therapist where

       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018     Page 6 of 15
       M.Mc. disclosed the incident to her mother and her therapist. Tr., Vol. II at 77.

       Second, the detective assigned to the case conducted a formal interview with

       M.Mc. and testified that M.Mc. told him that Morris exposed himself to her in

       the parking lot of Goshen Hospital. Lastly, the State introduced a Goshen

       Hospital surveillance video from the date of the incident showing Morris and

       M.Mc. walking into the hospital together, substantiating M.Mc.’s testimony.


[12]   Even absent any corroborating evidence of M.Mc.’s testimony, however, it is

       well settled that the uncorroborated testimony of a single witness can be

       sufficient to sustain a conviction on appeal, Bailey v. State, 979 N.E.2d 133, 135

       (Ind. 2012), and Morris concedes this in his brief. See Appellant’s Br. at 11-12.

       Therefore, M.Mc.’s testimony alone is sufficient to sustain Morris’ conviction.


[13]   Additionally, Morris contends that it is our role “to assess the caliber and

       quality of the relevant evidence[.]” Id. at 12. In its order, the trial court stated

       it had “consider[ed] each witness’ ability and opportunity to observe; the

       behavior of each witness while testifying; any interest, bias, or prejudice each

       witness may have; any relationship each witness had with others involved in the

       case; and the reasonableness of each witness’ testimony considering the other

       evidence” in making its findings, ultimately finding M.Mc.’s testimony

       credible. Appellant’s App., Vol. 2 at 105. Morris’ argument is an improper

       invitation for this court to reweigh the evidence, which we cannot accept. See

       Purvis, 87 N.E.3d at 1124.




       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018       Page 7 of 15
[14]   The record reveals “substantial evidence of probative value” supporting each

       element of public indecency from which a reasonable trier of fact could have

       found Morris guilty beyond a reasonable doubt. Stewart, 866 N.E.2d at 862.

       Therefore, the evidence is sufficient to support Morris’ conviction.


                                                  II. Sentencing
                                            A. Abuse of Discretion
[15]   Morris contends the trial court abused its discretion by imposing a harsher

       sentence than what the city court imposed because doing so is contrary to

       Indiana law and violates due process. Sentencing decisions are within the

       sound discretion of the trial court and this court reviews only for an abuse of

       discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218 (2007). A trial court abuses its discretion when its 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.” Stokes v. State, 947 N.E.2d 1033, 1036 (Ind. Ct. App. 2011), trans.

       denied.


[16]   Morris relies on three Indiana cases from the 1970s which “stand for the

       proposition that the trial court’s imposition of a more severe sentence than the

       Goshen City Court sentence in this case is improper and should be corrected.” 1




       1
         See Whited v. State, 256 Ind. 618, 271 N.E.2d 513 (1971); Eldridge v. State, 256 Ind. 113, 267 N.E.2d 48
       (1971); and Anderson v. State, 155 Ind. App. 465, 293 N.E.2d 222 (1973).

       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018                               Page 8 of 15
       Appellant’s Br. at 17. Although the cases Morris cites precluded the

       imposition of a greater sentence on retrial after an appeal from a lower court,

       these cases were decided prior to our supreme court’s adoption of the Indiana

       Trial De Novo Rules, effective January 1, 1998. These rules were adopted

       pursuant to Indiana Code section 34-8-1-3, which authorizes the supreme court

       to


               adopt, amend, and rescind rules of court that govern and control
               practice and procedure in all the courts of Indiana. These rules
               must be promulgated and take effect under the rules adopted by
               the supreme court and thereafter all laws in conflict with the
               supreme court’s rules have no further force or effect.


[17]   A defendant is entitled to appeal a city court judgment to “the circuit, superior,

       or probate court of the county and [be] tried de novo.” Ind. Code § 33-35-5-

       9(a); see also Ind. Trial De Novo Rules. Under the Trial De Novo Rules,

       following a misdemeanor trial in city or town court, “[a] defendant who has a

       statutory right to an appeal after a trial for a misdemeanor in a city or town

       court may request and shall receive the trial de novo as provided in this Rule.”

       Ind. Trial De Novo Rule 3(A). The court to which the case is assigned has “full

       jurisdiction of the case and of the person” once the request for a trial de novo is

       filed. Ind. Trial De Novo Rule 3(C)(2).


[18]   The adoption of the Indiana Rules of Evidence guides our interpretation of the

       relationship between the Trial De Novo Rules and common law. After our

       supreme court adopted the Rules of Evidence in 1994, our supreme court

       acknowledged that the Rules of Evidence “generally superseded previously

       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018      Page 9 of 15
       existing common law[.]” Specht v. State, 734 N.E.2d 239, 240 (Ind. 2000)

       (explaining that when the supreme court’s committee proposed the adoption of

       a particular rule of evidence, the committee specifically stated its proposed rule

       “preserves prior Indiana Law” on that issue). Similarly, we conclude the Trial

       De Novo Rules supersede existing case law as it pertains to trials de novo. Well

       aware of the existing case law, the court adopted the Trial De Novo Rules,

       which do not bar a court from imposing a greater sentence than an inferior

       court after retrial on appeal.


[19]   Common sense reinforces this conclusion. The very definition of a trial de

       novo trial means a “new trial on the entire case – that is, on both questions of

       fact and issues of law – conducted as if there had been no trial in the first

       instance.” Black’s Law Dictionary (10th ed. 2014). Restraining a court’s

       ability to sentence a defendant by prohibiting the court from imposing a greater

       sentence is inherently inconsistent with the nature and definition of a trial de

       novo. Therefore, we cannot conclude the trial court abused its discretion by

       imposing a greater sentence than the city court.


                                       B. Inappropriate Sentence
[20]   Alternatively, Morris argues the nature of the offense and his character do not

       warrant his one-year sentence, which is the maximum possible sentence for a

       Class A misdemeanor. See Ind. Code § 35-50-3-2. Morris contends his

       sentence is inappropriate because his criminal history is minor and his offense

       was brief and non-violent.


       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018     Page 10 of 15
[21]   Indiana Appellate Rule 7(B) provides this court the authority to “revise a

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

       decision, [we find] that the sentence is in appropriate in light of the nature of

       the offense and the character of the offender.” The question is not whether

       another sentence is more appropriate, but whether the sentence imposed is

       inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).

       Although we may consider any factors in the record when conducting 7(B)

       review, Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011), sentencing is

       “principally a discretionary function” of the trial court to which we afford

       considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       On appeal, the defendant must persuade this court that his or her sentence is

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

       Ultimately, whether a defendant’s sentence is inappropriate is based on “our

       sense of culpability of the defendant, the severity of the crime, the damage done

       to others, and myriad other factors that come to light in a given case.” Cardwell,

       895 N.E.2d at 1224.


[22]   Morris argues the nature of the offense does not warrant the maximum sentence

       because the nature of his offense “meets the very definition of public

       indecency[,]” was of “limited duration,” and did not involve violence or threats

       of violence. Appellant’s Br. at 18. We begin our analysis of the nature of the

       offense with the advisory sentence. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct.

       App. 2017). Although the sentencing range for a Class A misdemeanor does




       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018     Page 11 of 15
       not include an advisory sentence, it provides for a maximum allowable sentence

       of one year. Ind. Code § 35-50-3-2.


[23]   The nature of the offense is found in the details and circumstances surrounding

       the offense and the defendant’s participation therein. Perry v. State, 78 N.E.3d

       1, 13 (Ind. Ct. App. 2017). Here, the trial court described Morris’ offense as

       “egregious” given that his victim was only fourteen years old. Tr., Vol. II at

       156. Morris was also in a position of trust when he committed the offense, as

       the victim was his stepdaughter’s friend and M.Mc.’s mother entrusted Morris

       to safely take her daughter to a sleepover with his step-daughter. See Bennett v.

       State, 883 N.E.2d 888, 894 (Ind. Ct. App. 2008) (considering a defendant used

       his position of trust as a father to commit sex crimes in the nature of the offense

       portion of a 7(B) analysis), trans. denied. Although Morris contends that the

       non-violent nature of his offense supports a lesser sentence, our supreme court

       has held that the “absence of physical harm is not an automatic mitigating

       circumstance such that it would require a lesser sentence than would otherwise

       be imposed.” Neale v. State, 826 N.E.2d 635, 638 (Ind. 2005). The

       circumstances surrounding Morris’ offense do not render his sentence

       inappropriate.


[24]   Morris contends his sentence is inappropriate in light of his character. A

       defendant’s life and conduct are illustrative of his or her character. Washington

       v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. “Even a

       minor criminal record reflects poorly on a defendant’s character,” Reis, 88

       N.E.3d at 1105, and the significance of the prior record “varies based on the

       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018    Page 12 of 15
       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). As to Morris’

       character, his criminal history is comprised of a felony conviction for sexual

       misconduct with a minor, charges for disseminating obscene materials, and

       check deception. While this matter was pending, Morris pled guilty to theft and

       check deception and entered into a diversion agreement for violating the

       compulsory school attendance requirement. The record reveals that Morris also

       failed to satisfactorily complete probation for the theft charge.


[25]   At the sentencing hearing, the trial court focused on the gravity of Morris’

       criminal history:


                It’s troubling to me, sir, that when I look at your record, you
               were charged with possession of obscene material and literature
               and sexual misconduct with a minor in the late 90s and you were
               convicted as a felon of sexual misconduct with a minor. And the
               victim in this case was a minor and that’s very, very troubling. In
               addition, you have those two charges for check deception and
               you have a conviction for theft . . . .


               As you stand here right now, according to your records check,
               you’ve got a pending compulsory school attendance violation
               case . . . . While all of this is going on, you go out and pass a bad
               check to Menards and now you’re here today on that and on the
               displaying your genitals to a 14-year-old. I echo some of the
               comments by the State. This is serious. Yes, you can say this is
               just a misdemeanor. This is a very serious offense; I take this
               very seriously. It is absolutely inappropriate for you to engage in
               that behavior; to sit in a truck and expose your penis to a 14-year-
               old. And it’s inappropriate, especially, in the light of the fact that



       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018       Page 13 of 15
               you have the prior conviction for sexual misconduct with a
               minor.


       Tr., Vol. II at 155.


[26]   Morris attempts to minimize the significance of his previous conviction of

       sexual misconduct with a minor by arguing that it was his only felony

       conviction and is remote, occurring “nearly twenty (20) years ago, mere months

       after [he] turned eighteen (18).” Appellant’s Br. at 19. Despite these factors,

       however, the trial court found this prior offense significant in relation to the

       current offense. In addition to his previous criminal history, the trial court

       noted that while this matter was pending, Morris committed additional crimes

       to which he plead guilty. Despite Morris’ history with our justice system and

       his previous felony conviction for a similar crime against a juvenile, he was not

       deterred from committing the current offense. See Rutherford, 866 N.E.2d at

       874. The trial court sentenced Morris within the statutory range, a task within

       its discretion, and Morris has failed to persuade us that his sentence is

       inappropriate in light of the nature of the offense and his character.



                                               Conclusion
[27]   For the foregoing reasons, we conclude the evidence sufficiently supports

       Morris’ conviction, the trial court did not abuse its discretion in sentencing

       Morris to the maximum possible sentence, and his sentence is not

       inappropriate. Accordingly, we affirm.



       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018       Page 14 of 15
[28]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1738 | November 21, 2018   Page 15 of 15
