MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Aug 03 2020, 8:49 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Myriam Serrano
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Franklin E. Lee,                                         August 3, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-113
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard W.
Appellee-Plaintiff.                                      Poynter, Judge
                                                         Trial Court Cause No.
                                                         36C01-1804-F1-2



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020                   Page 1 of 12
                                          Case Summary
[1]   In April of 2018, Franklin E. Lee molested his then-ten-year old step-

      granddaughter. After a jury found him guilty of Level 1 felony child molesting,

      he was sentenced to thirty-five years of incarceration. On appeal, Lee

      challenges the sufficiency of the evidence to sustain his conviction and the

      appropriateness of his sentence. We affirm.



                            Facts and Procedural History
[2]   In April of 2018, M.D. and her sisters resided in a home with their

      grandmother, Karen Lee, and step-grandfather, Lee. M.D. was ten years old.

      Lee was thirty-nine years old.


[3]   On April 17, 2018, Karen left M.D. and her sisters in Lee’s care overnight.

      M.D. observed Lee consume four beers over the course of the evening. At

      some point, Lee fell asleep and M.D. and her sisters were unable to rouse him

      before they went upstairs to get ready for bed. M.D. was awoken later that

      night when she “felt someone kind of touching [her] leg,” moving their hand

      “down [her] leg.” Trial Tr. Vol. II pp. 143, 144. Although M.D. did not see

      Lee, she believed that it was he who had touched her. M.D. went back to sleep

      after the touching stopped.


[4]   Sometime later, Lee knocked on M.D.’s bedroom door “asking if [she] was

      awake.” Trial Tr. Vol. II p. 145. He then asked her “if [she] wanted to go

      downstairs” to the patio. Trial Tr. Vol. II p. 146. M.D. accompanied Lee

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 2 of 12
      outside and they sat together on a chair on the patio. Lee invited M.D. to sit on

      his lap, which she did. Once M.D. was on his lap, Lee “started touching”

      M.D.’s vagina, which M.D. referred to as her “pee area”. Trial Tr. Vol. II p.

      147. Lee’s hand was placed under both M.D.’s pajamas and underwear. While

      touching M.D., Lee instructed her to “look at the sky,” commenting on “how

      pretty it was.” Trial Tr. Vol. II p. 148. Lee left his hand on M.D.’s vagina for

      “like two (2) minutes.” Trial Tr. Vol. II p. 148. Lee and M.D. then went back

      inside.


[5]   Once inside, Lee invited M.D. to go into his bedroom. M.D. went into the

      bedroom and lay down on the bed. Lee lay down next to M.D. and again

      touched her vagina under her clothes. Lee’s fingers were “just outside the hole”

      where girls “pee out of.” Trial Tr. Vol. II pp. 152, 151. Lee left his hand on

      M.D.’s vagina for “like two (2) minutes.” Trial Tr. Vol. II p. 152. After Lee

      removed his hand, M.D. briefly fell asleep. M.D. was awoken by Lee

      “touching [her] butt” cheek under her clothes. Trial Tr. Vol. II p. 152. She

      briefly fell back asleep after Lee removed his hand. M.D. was briefly awoken a

      short time later by Lee again touching her vagina under her clothes.


[6]   M.D. was again awoken when Lee “asked if he could do one more thing.”

      Trial Tr. Vol. II p. 153. He “proceeded to ask [M.D.] to take off [her] pants and

      then [when she] didn’t really do it, he just kind of took them off, [and] told [her]

      to raise [her] butt.” Trial Tr. Vol. II p. 153. Lee then “opened” M.D.’s legs

      “like a double door” and started licking her vagina with his tongue. Trial Tr.

      Vol. II p. 154. Lee told M.D. “that everything was going to be okay” after she

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 3 of 12
      asked him to stop. Trial Tr. Vol. II p. 155. Lee continued licking M.D.’s

      vagina for “[t]wo (2) or three (3) minutes.” Trial Tr. Vol. II p. 156. After Lee

      stopped, M.D. went to the bathroom and “tried to kind of like clean out” her

      vagina, which was “wet” from Lee’s “spit.” Trial Tr. Vol. II p. 156. After

      finishing in the bathroom, M.D. went back upstairs to her bedroom. M.D.

      went back to sleep but was again awoken by Lee, who told her that “he was

      going to shoot himself and how much he hated himself.” Trial Tr. Vol. II p.

      157.


[7]   The next morning, before taking M.D. and her sisters to school, Lee twice

      asked M.D. if she “was ok” and stated that he hoped she would not tell anyone.

      Trial Tr. Vol. II p. 159. M.D. did tell some, reporting Lee’s actions to the

      school librarian, who then reported the incident to the Department of Child

      Services (“DCS”). Later that afternoon, DCS informed Karen. Karen

      confronted Lee. At first Lee denied any wrongdoing. Eventually, however,

      Lee admitted that he had “rubbed” M.D.’s vagina and “bottom.” Trial Tr. Vol.

      II p. 181. Lee claimed to have been asleep when he touched M.D. When

      Karen asked Lee “how he could do something like that,” Lee responded that

      “[h]e was sorry and he was going to go to Hell for what he had done.” Trial Tr.

      Vol. II p. 181. Lee later texted Karen, telling her that he was sorry and asking

      whether Karen had contacted the police. During a subsequent interview at the

      Child Advocacy Center, M.D. revealed that Lee’s tongue had manipulated her

      vaginal opening.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 4 of 12
[8]   On April 30, 2018, the State charged Lee with one count of Level 1 felony child

      molesting. A two-day jury trial commenced on October 8, 2019. Lee

      absconded following the first day of trial. The jury returned a guilty verdict on

      October 9, 2019, and Lee was located and arrested in Louisville, Kentucky, a

      few days later. The trial court subsequently sentenced Lee to thirty-five years of

      incarceration.



                                 Discussion and Decision
                               I. Sufficiency of the Evidence
[9]   Lee contends that the State produced insufficient evidence to sustain his

      conviction.


              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). A “molested child’s uncorroborated testimony is sufficient

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 5 of 12
       to sustain a conviction.” Amphonephong v. State, 32 N.E.3d 825, 832 (Ind. Ct.

       App. 2015) (internal quotation omitted); see also Robinson v. State, 446 N.E.2d

       1287, 1291 (Ind. 1983) (providing that a victim’s uncorroborated testimony was

       sufficient to sustain the defendant’s conviction for child molesting).


[10]   In order to prove that Lee committed Level 1 felony child molesting, the State

       was required to prove that Lee, who was at least twenty-one years of age,

       knowingly or intentionally performed or submitted to sexual intercourse or

       other sexual conduct with a child under fourteen years of age. Ind. Code § 35-

       42-4-3. “‘Other sexual conduct’ means an act involving: (1) a sex organ of one

       (1) 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.

       We have previously concluded that “a finger is an object for purposes of the

       child molesting statute.” Seal v. State, 105 N.E.3d 201, 209 (Ind. Ct. App.

       2018). Lee does not dispute on appeal that the State proved the age

       requirements of Indiana Code section 35-42-4-3. He only argues that the

       evidence is insufficient to prove that he knowingly or intentionally performed

       sexual conduct on M.D.


[11]   Lee asks us to re-evaluate M.D.’s testimony based upon the incredible dubiosity

       rule.


               This rule is applicable only when a lone witness offers inherently
               contradictory testimony that is equivocal or the result of coercion
               and there is a complete lack of circumstantial evidence of the
               appellant’s guilt. To interfere with the jury’s authority to judge
               witness credibility and evaluate evidence, the court must be

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 6 of 12
               presented with testimony which runs counter to human
               experience and that reasonable persons could not believe.… The
               incredible dubiosity test is a difficult standard to meet, one that
               requires great ambiguity and inconsistency in the evidence.


       Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001) (internal citations and

       quotations omitted).


[12]   Review of the record reveals that M.D.’s testimony was consistent and was

       partially corroborated by other evidence in the record. M.D. consistently

       testified that on both the patio and in Lee’s bedroom, Lee touched her vagina

       with his fingers under her clothes and that his fingers “were just outside the

       hole” where females “pee out of.” Trial Tr. Vol. II p. 152. M.D. also

       consistently testified that in Lee’s bedroom, after removing her pajamas and

       underwear, Lee “told [M.D.] to raise [her] butt,” trial tr. vol. II p. 153,

       “opened” her legs, trial tr. Vol. II p. 154, and “started licking” her vagina. Trial

       Tr. Vol. II p. 153. After Lee stopped, M.D. went to the bathroom and “tried to

       clean out” her vagina, which was “wet” with Lee’s “spit.” Trial Tr. Vol. II p.

       156.


[13]   Lee asserts that M.D.’s testimony should be found to be unreliable because it

       was “not corroborated by physical evidence.” Appellant’s Br. p. 14. While

       there is no physical evidence in the record corroborating M.D.’s account of

       what happened, there is ample evidence corroborating other aspects of M.D.’s

       testimony. The corroborating evidence includes Lee’s admission to Karen and

       Seymour Police Detective Troy Munson that he touched M.D.’s vagina and


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 7 of 12
       buttocks with his hand and Lee’s admission to Karen that he “rubbed” M.D.’s

       vagina and buttocks and that he “was sorry and he was going to Hell for what

       he had done.” Trial Tr. Vol. II p. 181. M.D.’s testimony was not incredibly

       dubious.


[14]   Lee also asserts that the evidence is insufficient to prove that he acted with the

       requisite mens rea, claiming that he was asleep when he molested M.D. The

       culpability requirement of the child molesting statute is “knowingly or

       intentionally.” Ind. Code § 35-42-4-3. “A person engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A person engages

       in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

       objective to do so.” Ind. Code § 35-41-2-2(a). “The intent element of child

       molesting may be established by circumstantial evidence and may be inferred

       from the actor’s conduct and the natural and usual sequence to which such

       conduct usually points.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000).

       M.D. testified that on the night in question, Lee touched her numerous times in

       numerous locations in and around their home, including in M.D.’s bedroom,

       the patio, and Lee’s bedroom.


[15]   Lee touched M.D.’s vagina under her clothing both outside on the patio and in

       his bedroom and performed oral sex on M.D. in his bedroom. The jury could

       reasonably infer from M.D.’s testimony that Lee was awake and acted

       knowingly or intentionally when he committed the acts in various locations in

       and around the family’s home. As such, we conclude that the evidence,

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 8 of 12
       including the reasonable inferences that can be drawn therefrom, is sufficient to

       support the jury’s determination that Lee knowingly or intentionally performed

       sexual conduct on M.D. See Amphonephong, 32 N.E.3d at 833 (providing that

       the victim’s testimony regarding the defendant’s actions together with the

       reasonable inferences therefrom was sufficient to support the jury’s

       determination that the defendant acted knowingly when he molested the

       victim). Lee’s challenge to the sufficiency of the evidence amounts to nothing

       more than a request to reweigh M.D.’s credibility and the evidence, which we

       will not do. See Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002) (“We do not

       reweigh the evidence or assess the credibility of witnesses.”).


                              II. Appropriateness of Sentence
[16]   Lee also contends that his thirty-five-year sentence is inappropriate. Indiana

       Appellate Rule 7(B) provides that “The Court may revise a sentence authorized

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

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” In analyzing such claims, we “concentrate less on

       comparing the facts of [the case at issue] to others, whether real or hypothetical,

       and more on focusing on the nature, extent, and depravity of the offense for

       which the defendant is being sentenced, and what it reveals about the

       defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)

       (internal quotation omitted). The defendant bears the burden of persuading us

       that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind.

       Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 9 of 12
[17]   The trial court sentenced Lee to a term of thirty-five years for his Level 1 felony

       child-molesting conviction. Indiana Code section 35-50-2-4(c) provides that

       “[a] person who commits a Level 1 felony child molesting offense … shall be

       imprisoned for a fixed term between twenty (20) and fifty (50) years, with the

       advisory sentence being thirty (30) years.” Thus, in sentencing Lee to a thirty-

       five-year term, the trial court imposed a slightly-aggravated sentence.


[18]   Lee presents the following argument in support of his assertion that his sentence

       is inappropriate in light of the nature of his offense:


               Lee’s alleged conduct did not exceed the statutory elements for
               the offense he was convicted of. There is no evidence that Lee
               physically harmed or threatened to harm M.D. M.D. did not
               indicate that Lee had threatened her or physically restrained her.
               The nature of the acts Lee is alleged to have engaged in did not
               support the imposition of an aggravated sentence.


       Appellant’s Br. p. 17. We disagree.


[19]   Lee violated a position of trust by molesting his then-ten-year-old step-

       granddaughter. Lee and Karen shared custody of M.D. and her sisters.

       Furthermore, Lee did not commit only one act of molestation, but rather

       multiple acts of molestation, in multiple areas in and around the family’s home.

       In a letter provided at sentencing, Karen informed the trial court M.D. had

       suffered emotional harm as a result of Lee’s actions. Karen indicated that Lee

       “was someone [she and her granddaughters] trusted and loved very much”

       before he “betrayed” them. Sent. Tr. Vol. II p. 8. Karen further indicated that

       M.D. “adored” Lee “and he did the unthinkable” to her. Sent. Tr. Vol. II p. 8.
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 10 of 12
       As a result of Lee’s actions, M.D. attends therapy, “won’t sleep upstairs [in her

       bedroom] or alone,” “is afraid of the dark,” and “is very leery of others,”

       especially men. Sent. Tr. Vol. II p. 8. M.D. informed the court the Lee “broke

       [her] family,” stating that she “used to have a happy family like all [of her]

       friends, but now it is broken.” Sent. Tr. Vol. II p. 9. Both Karen’s and M.D.’s

       statements demonstrate the M.D. has suffered as a result of Lee’s actions.


[20]   As for his character, Lee asserts that he is a high school graduate and has

       earned an associate’s degree. Lee claims to have a relatively minor criminal

       history consisting of only one prior conviction for Class A misdemeanor

       possession of marijuana. He also claims to have the support of his new wife

       and his father, who is willing to take him into his home. During the sentencing

       hearing, Lee’s father described Lee as “honest, he was a good father, he always

       had a job, always provided for his family when he was married the best that he

       could.” Sent. Tr. Vol. II p. 5. The trial court, however, was not required to

       accept Lee’s father’s testimony as proof of good character. See Shorter v. State,

       144 N.E.3d 829, 839 (Ind. Ct. App. 2020).


[21]   While Lee might have been a largely law-abiding citizen, his actions involving

       M.D. demonstrate poor character. Lee violated a position of trust by molesting

       his step-granddaughter, who was only ten years old at the time. Lee told M.D.

       that “he was going to shoot himself” and “hated himself” and suggested that if

       she told anyone about what happened, he would go to Hell. Trial Tr. Vol. II p.

       157. The episode negatively impacted M.D., causing her to suffer emotional

       pain.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 11 of 12
[22]   Furthermore, Lee attempted to avoid incarceration by absconding following the

       first day of trial. A few days after he was convicted, Lee was arrested in

       Louisville, Kentucky. Lee admitted that he “had devised a plan to flee to

       Louisville and purchase enough methamphetamine to kill himself via overdose.

       He had a secondary plan to attempt suicide by law enforcement and was hoping

       to be able to get police officers to shoot him when he was taken into custody.”

       Appellant’s App. Vol. II p. 117. Lee, however, did not kill himself but was

       living in Louisville at the time of his arrest. Lee’s decision to abscond and

       attempt to avoid the consequences of his actions does not reflect well on his

       character. Lee has failed to convince us that his aggregate thirty-five-year

       sentence is inappropriate. See Sanchez, 891 N.E.2d at 176 (“The defendant

       bears the burden of persuading us that his sentence is inappropriate.”).


[23]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020   Page 12 of 12
