      MEMORANDUM DECISION
                                                                       Feb 09 2015, 9:22 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark S. Lenyo                                             Gregory F. Zoeller
      South Bend, Indiana                                       Attorney General
                                                                Kenneth E. Biggins
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Shaun Terrell Balkcom,                                   February 9, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               71A03-1407-CR-254
              v.                                               Appeal from the St. Joseph Superior
                                                               Court

      State of Indiana,                                        The Honorable Jerome Freese,
                                                               Judge
      Appellee-Plaintiff
                                                               Cause No. 71D03-1204-FA-11




      Mathias, Judge.

[1]   Shaun Balkcom (“Balkcom”) was convicted in St. Joseph Superior Court of

      Class A felony child molesting and Class C felony child molesting. The trial

      court sentenced Balkcom to an aggregate term of thirty-seven years. Balkcom




      Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-254 | February 9, 2015   Page 1 of 7
      appeals and argues that the State failed to present sufficient evidence to support

      his convictions.

[2]   We affirm.



                              Facts and Procedural History
[3]   On January 15, 2011, thirteen-year-old T.J., who lived with her mother and two

      sisters in the overcrowded home of her mother’s friend, was asleep on the floor

      of the home’s living room, where she and her family regularly slept. T.J. was

      wearing pajama pants, a shirt, and undergarments. T.J.’s mother, R.R., and

      Balkcom, R.R.’s boyfriend, also slept on the floor. 1 T.J.’s older sister, S.J., slept

      nearby on a chair or on the floor, and their youngest sister, K.J., was asleep on

      a couch.

[4]   At some point during the night, T.J. awoke to find Balkcom touching her

      breasts and vagina. T.J. told Balkcom to stop. Balkcom covered T.J.’s mouth

      with one hand and inserted his fingers into her vagina, then pulled down T.J.’s

      pajama bottom and inserted his penis into her vagina. Balkcom then got up and

      went upstairs.


[5]   T.J., hysterical and crying, woke her mother and told her what had happened.

      R.R. told T.J. to go upstairs with her sisters. T.J. went upstairs and used the




      1
       At trial, T.J. testified that R.R. slept between Balkcom and T.J. R.R., however, testified that Balkcom slept
      next to T.J.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-254 | February 9, 2015              Page 2 of 7
      restroom but did not shower or change her clothes. Meanwhile, Balkcom left

      the house.

[6]   R.R. took T.J. to the hospital, where an examination was performed on T.J.

      and T.J.’s clothing and DNA samples were collected. Tests on T.J.’s clothing

      revealed a stain on her underpants that tested positive for semen. The sample,

      however, was not large enough to test for DNA. Also found on T.J.’s

      underpants was a segment of DNA that matched Balkcom’s profile.2


[7]   On April 5, 2012, the State charged Balkcom with Count I, Class A felony child

      molesting, alleging that Balkcom performed sexual intercourse with T.J.; Count

      II, Class A felony child molesting, alleging that Balkcom performed deviate

      sexual conduct with T.J. by penetrating T.J.’s sex organ with an object; and

      Count III, Class C felony child molesting, alleging that Balkcom touched T.J.

      in her vaginal area and/or her breasts with the intent to arouse or satisfy the

      sexual desires of either T.J. or Balkcom. A jury trial was held from May 12 to

      May 14, 2014. The jury convicted Balkcom of Counts II and III. On June 24,

      2014, the trial court sentenced Balkcom to an aggregate term of thirty-seven

      years imprisonment, thirty-two years for the Class A felony conviction, and five

      years for the Class C felony conviction.


[8]   Balkcom now appeals.




      2
       This profile was not unique to Balkcom, however, and could have belonged to one of Balkcom’s male
      relatives or another male of the same profile.

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                                  Discussion and Decision
[9]    Balkcom argues that the State failed to present sufficient evidence to sustain his

       conviction. Specifically, Balkcom claims that T.J.’s testimony was incredibly

       dubious.

[10]   Our standard of review with regard to sufficiency claims is well settled. We

       neither reweigh the evidence nor judge the credibility of the witnesses, and we

       consider only the evidence favorable to the verdict and all reasonable inferences

       that can be drawn therefrom. Newman v. State, 677 N.E.2d 590, 593 (Ind. Ct.

       App. 1997). If substantial evidence of probative value exists from which a trier

       of fact could find guilt beyond a reasonable doubt, we will affirm the

       conviction. Id. A conviction for child molesting may rest solely upon the

       uncorroborated testimony of the victim. Turner v. State, 720 N.E.2d 440, 447

       (Ind. Ct. App. 1999). Further, we are mindful that the trier of fact is entitled to

       determine which version of the incident to credit. Barton v. State, 490 N.E.2d

       317, 318 (Ind. 1986), reh’g denied.


[11]   Balkcom claims that T.J.’s testimony was incredibly dubious because (1) “T.J.’s

       claim that Balkcom inserted his fingers inside her vagina is inconsistent with

       T.J.’s account [that Balkcom inserted his penis into her vagina] which she gave

       to her mother immediately after she awoke her mother”; T.J.’s statements

       regarding where her sister, S.J., was sleeping and whether Balkcom was

       sleeping next to her were inconsistent with other witnesses’ testimony; and

       “T.J.’s testimony that [Balkcom] fondled her, inserted his fingers in her vagina


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       and then had intercourse with her, all while her mother slept soundly on the

       other side of [] Balkcom is inherently improbable.” Appellant’s Br. at 14-15.

[12]   We begin by noting that the incredible dubiosity rule applies only in very

       narrow circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).

       The rule is expressed as follows:

               If a sole witness presents inherently improbable testimony and there is
               a complete lack of circumstantial evidence, a defendant’s conviction
               may be reversed. This is appropriate only where the court has
               confronted inherently improbable testimony or coerced, equivocal,
               wholly uncorroborated testimony of incredible dubiosity. Application
               of this rule is rare and the standard to be applied is whether the
               testimony is so incredibly dubious or inherently improbable that no
               reasonable person could believe it.

       Id.


[13]   Those cases where we have found testimony inherently improbable or of

       incredible dubiosity have involved either situations where the facts as alleged

       “could not have happened as described by the victim and be consistent with the

       laws of nature or human experience,” Watkins v. State, 571 N.E.2d 1262, 1265

       (Ind. Ct. App. 1991), aff’d in part and vacated in part, 575 N.E.2d 624 (Ind. 1991),

       or the witness was so equivocal about the act charged that his uncorroborated

       and coerced testimony “was riddled with doubt about its trustworthiness.” Id.

       The case before us does not fall within either category.


[14]   To the extent that T.J.’s testimony regarding her sleeping position relative to

       that of Balkcom is inconsistent with her mother’s testimony, we note that this is

       an issue of witness credibility. The function of weighing witness credibility lies

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       with the trier of fact, not this court. Whited v. State, 645 N.E.2d 1138, 1141 (Ind.

       Ct. App. 1995). We cannot reweigh the evidence and judge the credibility of the

       witnesses. See Jones, 783 N.E.2d at 1139. Furthermore, we cannot say that

       T.J.’s testimony that Balkcom molested her while her mother slept nearby was

       so inherently improbable that no reasonable person could believe it. See Leyva v.

       State, 971 N.E.2d 699 (Ind. Ct. App. 2012) (the testimony of child molesting

       victim that she awoke and felt defendant insert more than one of his fingers into

       her vagina while defendant’s wife and defendant’s two other children slept on

       the floor after watching movie was not inherently contradictory or so inherently

       improbable that no reasonable person could believe it).


[15]   Also, the fact that T.J. initially told her mother that Balkcom inserted his penis

       into her vagina but not that Balkcom inserted his fingers into her vagina, then

       testified at trial that Balkcom did both does not make her testimony incredibly

       dubious. Importantly, the rule very narrowly applies to contradictions in the in-

       court statements of a single witness, not contradictions between pre-trial

       statements and trial testimony. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct.

       App. 2006). Balkcom has not pointed to any part of T.J.’s testimony at trial that

       was inherently contradictory, and T.J. was never equivocal about whether the

       molestation occurred. See Reyburn v. State, 737 N.E.2d 1169 (Ind. Ct. App.

       2000) (testimony of child molestation victim that defendant engaged in sexual

       intercourse with her in living room was not incredibly dubious, even if victim

       originally told police that incident had occurred on couch and then later

       testified that incident had originated on the couch and concluded on the floor, if


       Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-254 | February 9, 2015   Page 6 of 7
       she had failed to tell police that defendant had locked door of house while

       molestation occurred, and if she told police that her father was the first person

       that she told about incident and then later testified that her sister was the first

       person she told). Compare Sisson v. State, 710 N.E.2d 203 (Ind. Ct. App. 1999),

       trans. denied (witness’s testimony was found to be incredibly dubious when on

       direct examination witness testified regarding defendant’s involvement in

       burglaries and then recanted testimony on cross-examination).


[16]   The jury heard T.J.’s testimony, had the opportunity to determine the relative

       credibility of all of the witnesses, and found Balkcom guilty of two counts of

       child molesting. On appeal, Balkcom asks this court to invade the province of

       the jury by reweighing the evidence and reassessing witness credibility. We

       decline his invitation. As for the broader question of sufficiency, we again note

       that a conviction for child molesting may rest solely upon the uncorroborated

       testimony of the victim. Turner, 720 N.E.2d at 447. Here, the jury’s

       determination was supported not only by T.J.’s testimony, but also by the

       testimony of S.J. that she woke briefly and noticed Balkcom pulling T.J.’s body

       close to him and by DNA evidence collected from T.J.’s undergarments. For all

       of these reasons, we conclude that the State presented evidence sufficient to

       support Balkcom’s conviction.


[17]   Affirmed.

       Najam, J., and Bradford, J., concur.




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