                                                                          Apr 10 2015, 9:54 am




ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Richard J. Thonert                                            Gregory F. Zoeller
Fort Wayne, Indiana                                           Attorney General of Indiana
                                                              Karl M. Scharnberg
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                               IN THE
     COURT OF APPEALS OF INDIANA

Johnathon I. Carter,                                          April 10, 2015

Appellant-Defendant,                                          Court of Appeals Case No.
                                                              02A03-1405-CR-181
         v.                                                   Appeal from the
                                                              Allen Superior Court

State of Indiana,                                             The Honorable Frances C. Gull,
Appellee-Plaintiff.                                           Judge

                                                              Cause No. 02D05-1311-FA-461




Kirsch, Judge.




1
 We note some discrepancy in the cause number in the record before us. The parties’ appellate briefs reflect
02D06, as do other filings in the trial court, including the charging information, various motions, and the trial
court’s final jury instructions. However, the judgment of conviction, transcript, and chronological case
summary reflect 02D05, which we elect to use in this opinion.

Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015                            Page 1 of 27
[1]   Following a jury trial, Johnathon I. Carter was convicted of three counts of

      Class A felony child molesting2 and two counts of Class C felony child

      molesting.3 He raises four issues on appeal that we restate as:

                 I. Whether the manner in which the jury was instructed concerning
                 the requirement of jury unanimity constituted fundamental error;
                 II. Whether the trial court abused its discretion in admitting certain
                 expert testimony;
                 III. Whether the State presented sufficient evidence to convict Carter;
                 IV. Whether Carter’s ninety-eight-year sentence is inappropriate in
                 light of the nature of the offense and the character of the offender.
[2]   We affirm the convictions, revise the sentence, and remand with instructions.4


                                      Facts and Procedural History
[3]   On June 28, 2009, Carter married Q.C. (“Mother”), who at that time had three

      sons, M.S., age fifteen, M.J., age fourteen, and M.N., age eight. Mother and

      her sons moved from Gary to Fort Wayne in December 2010, and Carter

      moved shortly thereafter, in January 2011. M.S. had his own room in the

      residence. M.J. and M.N. shared a bedroom. Between January 2011 and April

      2013, the family lived in five different residences in Fort Wayne. M.N. and

      M.J. shared a bedroom at each of the locations. Carter and Mother worked for




      2
       See Ind. Code § 35-42-4-3(a). We note that, effective July 1, 2014, new versions of the criminal statutes with
      which Carter was charged were enacted, but because he committed his crimes prior to that date, we will
      apply the applicable statutes in effect at that time.
      3
          See Ind. Code § 35-42-4-3(b).
      4
          We note that Carter’s request for oral argument has been denied by separate order.


      Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015                          Page 2 of 27
      the same employer, but generally worked different shifts from each other, such

      that when Mother was at work, Carter was at home.


[4]   From at least early August 2010 to near the end of April 2013, Carter engaged

      in sexual acts with M.N. The encounters took place at each of the residences

      where the family lived, usually in M.N.’s bedroom or Carter’s bedroom,

      sometimes happening in the morning after the older brothers had left for school,

      sometimes in the afternoon when no one else was home, or during the night.

      Carter would require M.N. to perform oral sex and would also require him to

      submit to it. He also required M.N. to engage in anal sex. Carter also fondled

      and touched M.N.’s penis, and Carter required M.N. to touch Carter’s penis.

      Carter bribed M.N. with candy and money.


[5]   At some point, M.N. told M.J. what Carter was doing, but M.J. “didn’t believe

      me.” Tr. at 249. In November 2011, M.N. disclosed to Mother that Carter had

      been molesting him. Mother and M.N. made a police report to the Fort Wayne

      Police Department, a department of child services (“DCS”) investigation began,

      and Carter moved out of the residence. On November 23, 2011, Julie DeJesus,

      a forensic interviewer, interviewed M.N. at the Dr. Bill Lewis Center for

      Children. DeJesus wore an earpiece, and a multi-disciplinary team5 listened

      from another room. M.N. disclosed to DeJesus, with words and demonstrating

      with his hands, that Carter had abused him. That same day, Sharon Robinson,



      5
        The multi-disciplinary team consisted of a victim’s advocate and a representative from each of the
      following: law enforcement, child protective services, and the prosecutor’s office.

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      a sexual assault nurse examiner, at the Fort Wayne Sexual Assault Treatment

      Center, examined M.N. Detective Robin Pfeiffer of the Fort Wayne Police

      Department separately interviewed M.N. and Carter on November 28, 2011.


[6]   M.J. and Carter had an amicable relationship, and M.J. enjoyed spending time

      with him. M.J. was angry that Carter had left the residence, due to M.N.’s

      disclosures, and M.J. treated M.N. differently after Carter was gone. M.J.

      ignored M.N. and was less playful with M.N. He called him a snitch and a

      coward. M.S. observed M.J. sometimes push M.N. and “tell him to get in the

      corner or whatever,” even though M.N. had done nothing wrong. Id. at 430-

      31. At some point, M.J. asked M.N. if the accusations against Carter were true,

      and M.N. told M.J. that he had lied about Carter molesting him, but told M.J.

      not to tell Mother. That same day, M.J. told the school counselor, Shirley

      Snider that M.N. said that he had made up the accusations against Carter.

      Snider contacted Detective Pfeiffer who, in turn, contacted Mother. Detective

      Pfeiffer requested to interview M.N. again, but Mother required that she be

      present for the interview, which was against police department policy, and the

      investigation stalled. According to Detective Pfeiffer, the investigation “was

      closed based on the uncooperation of the family.” Id. at 559.


[7]   In January or February 2012, Carter moved back into the residence, and the

      molestations resumed. The relationship between Mother and Carter

      deteriorated, and Carter moved out of the house again in April 2013.

      Thereafter, on May 2, 2013, M.N. told Mother that Carter had been molesting

      him again. The investigation resumed. On May 23, 2013, Angela Mellon, a

      Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 4 of 27
      sexual assault nurse examiner at the Fort Wayne Sexual Assault Treatment

      Center, examined M.N. Patricia Smallwood, a forensic interviewer at the Dr.

      Bill Lewis Center for Children also interviewed M.N. in or around May 2013.

      Detective Pfeiffer interviewed M.N., as well as Carter, on June 5, 2013.


[8]   On November 28, 2013, the State charged Carter with three counts of Class A

      felony child molesting and two counts of Class C felony child molesting. The

      State alleged: Count I, between August 1, 2010 and April 27, 2013, Carter

      performed or submitted to sexual deviate conduct by placing his penis in or on

      the mouth of M.N.; Count II, between August 1, 2010 and April 27, 2013,

      Carter performed or submitted to sexual deviate conduct by placing his mouth

      on the penis of M.N.; Count III, between August 1, 2010 and April 27, 2013,

      Carter performed or submitted to sexual deviate conduct by placing his penis in

      or on the anus of M.N.; Count IV, between August 1, 2010 and April 27, 2013,

      Carter performed or submitted to fondling or touching of M.N.; and Count V,

      August 1, 2010 and April 27, 2013, Carter performed or submitted to fondling

      or touching of M.N.


[9]   At the two-day April 2014 jury trial, “M.N. testified about multiple occasions of

      many different times, dates and locations of different acts of sexual deviate

      conduct and fondling.” Appellant’s Br. at 5. M.N., who was ten years old at the

      time of trial, testified that Carter molested him in all of the places where they

      lived. Carter sometimes engaged in the conduct after M.N.’s brothers went to

      school, but before M.N. went to school, sometimes when no one was home,

      and other times when people were in the house. Carter made M.N. “suck his

      Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 5 of 27
       thing,” meaning Carter’s penis, and Carter did the same to M.N. Tr. at 237.

       M.N. described that when he would suck Carter’s penis, sperm would come

       out, although sometimes Carter would wear a condom or put a sock over his

       penis. Id. at 240-41. M.N. described one occurrence, when he was ten years

       old, in which Carter came into M.N.’s bedroom while he was playing video

       games before school, and Carter sucked M.N.’s penis. Id. at 244-45. On

       various occasions, M.N. “would give [Carter] masturbation” by using his hands

       on Carter’s penis; M.N. demonstrated at trial how he would hold and move his

       hand on Carter’s penis. Id. at 247. Carter would do the same to M.N.’s penis.

       M.N. also testified that Carter “made [me] put my private in his butt.” Id. at

       240.


[10]   One afternoon, when M.N.’s brothers were at the park, M.N. was in Carter’s

       bedroom, and Carter positioned M.N. “with [his] butt up,” and hands on the

       bed, and Carter put his penis in M.N.’s “butt.” Id. at 247. M.N. said Carter put

       his “private part” in M.N.’s “butt” on other occasions and, “[i]t would hurt.”

       Id. M.N. also described an incident that occurred while he was sleeping in his

       bed at night, when Carter came in and engaged in anal sex for about four

       minutes. Id. at 266.


[11]   M.N. testified that, after he reported that Carter was molesting him, and Carter

       moved out of the residence the first time, M.J. began treating M.N. differently.

       M.N. said that M.J. was mean to him and would call him a coward, punk, and

       “the b-word.” Id. at 431. M.N. told the jury that, with Carter out of the house,

       he knew that Mother was struggling to work and supervise the children on her

       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 6 of 27
       own. M.N. explained that the reason that he previously had recanted, saying

       that the allegations were not true, was because he wanted to help Mother.

       Carter returned to the home, and the molestations resumed. M.N. testified that

       Carter, after coming back, asked him, “Why did you tell on me?” Id. at 248.


[12]   In her testimony, Mother mentioned that after Carter left the family’s residence

       in November 2011 M.J. cried and missed him, and she observed that M.J. was

       “standoff-ish” to M.N. Id. at 460. Mother was aware that during the period of

       time when Carter was not living at the residence, but before M.N. recanted,

       M.J. and Carter were in contact with one another and exchanged text messages.

       Carter returned in January or February 2012, but she “put him out” in late

       April 2013 due to difficulties in their marriage. Id. at 469.


[13]   The State also presented, over Carter’s objections, the testimony of Smallwood,

       a forensic interviewer and expert on child sexual abuse. Carter had filed a

       motion to exclude Smallwood’s testimony, which the trial court denied, and he

       made continuing objections both prior to opening statement and during her

       testimony. At trial, Smallwood testified that she had been a family and child

       sexual abuse counselor for over twenty years, having worked as a marriage and

       family therapist at Parkview Hospital and as the Director of Victim Assistance

       at the Allen County Sheriff’s Department and the Fort Wayne Police

       Department. She interviewed M.N. in May 2013, but she did not testify about

       M.N. or his individual case, instead offering generalized testimony about how

       children deal with sexual abuse, the disclosure process, and the matter of when

       and why children recant or retract their disclosures of abuse. She testified that a

       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 7 of 27
       one-time incident of molestation is rare and that it is harder for boys to talk

       about abuse that happens to them. She also stated that the longer a child waits

       to disclose, the stronger the feeling that they will not be believed. Boys are also

       more likely to retract. When a child retracts, it does not mean that it did not

       happen. She testified that sexual abuse tends to place a child in a position of

       having to choose between disclosing the abuse and wrecking the family, or

       keeping the secret and suffering the abuse. Id. at 515. The pressure on children

       to keep the family intact is intense. She stated that frequently, by the time of

       disclosure, the child has been abused so many times that individual instances

       tend to run together and children have difficulty relating specific events or

       providing details. Carter requested a limiting instruction as to Smallwood’s

       testimony and a motion for mistrial, which the trial court denied.


[14]   DeJesus, who conducted a forensic interview of M.N. in November 2011, also

       testified that M.N. disclosed to her that Carter had been abusing him.

       Robinson, the sexual assault nurse examiner, also testified at trial, over Carter’s

       objections, and his request for mistrial was denied. Robinson testified that,

       while she did not observe any injuries to M.N. during her examination of him

       in November 2011, a lack of injury does not mean an assault did not occur and

       that, in the vast majority of cases, there is no visible injury. M.N. described

       incidents of sexual acts, including sucking of Carter’s private part and Carter

       inserting that into M.N.’s “butt.” Id. at 363. M.N. told her that Carter

       “whooped” him and that it hurt. M.N. told her that the molestations

       “happened lots of times.” Id. at 364. Mellon, who physically examined M.N.


       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 8 of 27
       in May 2013, testified that M.N. explained and demonstrated to her that Carter

       touched his private parts and put his private parts “in [his] butt lots of times.”

       Id. at 386. On other occasions, M.N. told her “sperm” or “stuff” had come out

       of Carter’s penis. Id. at 387.


[15]   Following the presentation of evidence, Carter tendered a final jury instruction

       regarding jury unanimity, which was denied over his objection. The jury

       convicted Carter, as charged, of five counts of child molesting. The trial court

       imposed an aggregate sentence of ninety-eight years, consisting of three

       consecutive thirty-year sentences on each of the three Class A felonies and to

       two consecutive four-year sentences for each of the two Class C felonies. Carter

       now appeals his convictions and his sentence. Additional facts will be supplied

       as necessary.


                                       Discussion and Decision

                                  I. Jury Unanimity Instruction
[16]   Carter contends the trial court erred by rejecting his tendered final jury

       instruction regarding jury unanimity. The manner of instructing a jury lies

       largely within the discretion of the trial court, and we will reverse only for an

       abuse of discretion. Surber v. State, 884 N.E.2d 856, 867 (Ind. Ct. App. 2008),

       trans. denied. In determining whether a trial court abused its discretion by

       declining to give a tendered jury instruction, we consider (1) whether the

       tendered instruction correctly states the law; (2) whether there was evidence

       presented at trial to support giving the instruction; and (3) whether the


       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015     Page 9 of 27
       substance of the instruction was covered by other instructions that were given.

       Brakie v. State, 999 N.E.2d 989,993 (Ind. Ct. App. 2013), trans. denied. We

       consider jury instructions not in isolation, but as a whole, with reference to each

       other. Surber, 884 N.E.2d at 867. “‘Errors in the giving or refusing of

       instructions are harmless where a conviction is clearly sustained by the evidence

       and the jury could not properly have found otherwise.’” Brakie, 999 N.E.2d at

       993 (quoting Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001)).


[17]   With regard to jury unanimity, Indiana has long required that a verdict of guilty

       in a criminal case “must be unanimous.” Baker v. State, 948 N.E.2d 1169, 1173

       (Ind. 2011). Our Supreme Court has recognized that applying the rule of jury

       unanimity can present difficult challenges in child molestation or sex offense

       cases. Id. at 1174. One reason for this is because often a child is abused by an

       individual who resides with the child and that person “‘perpetuate[s] the abuse

       so frequently . . . that the young child loses any frame of reference in which to

       compartmentalize the abuse into distinct and separate transactions. Such

       evidence of abuse has been termed generic evidence.’” Id. (quoting R.L.G. v.

       State, 712 So.2d 348, 356 (Ala. Crim. App. 1997)). In such a situation, “[t]he

       victim’s ‘generic testimony’ may describe a pattern of abuse (‘every time mama

       went to the store’) rather than specific incidents (‘after the July 4th parade’).”

       Id. A concern about jury unanimity may arise because the jury is not presented

       with a specific act upon which its members unanimously may agree. Id.

       Indeed, the jury may be presented with evidence of a greater number of separate




       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 10 of 27
       criminal offenses than the defendant is charged with in the information. Id. at

       1175.


[18]   Here, the State charged that Carter, between August 1, 2010 and April 27,

       2013, committed child molesting by three acts of sexual deviate conduct –

       placing his penis in or on M.N.’s mouth, placing his mouth on M.N.’s penis,

       and placing his penis in or on M.N.’s anus – and two acts of fondling or

       touching of M.N. Thus, while at least the first three counts identified an act by

       description, they did not specify a date or location or other specific detail;

       instead, the charges each alleged a date range within which the conduct

       occurred.6 On appeal, Carter complains that, although he was charged with

       one count of child molesting in each count, the jury heard evidence of multiple

       acts of molestation over an extended period of time. Therefore, he claims, it is

       “probable” that a juror or jurors found him guilty of some charged and/or some

       uncharged conduct, but not guilty of some charged crimes, or a combination

       thereof, and that “a non-unanimous verdict was the result.” Appellant’s Br. at 9.

       Essentially, his complaint is that there is no way of knowing which particular

       act or acts, if any, the jury unanimously agreed upon.




       6
        Our Supreme Court has recognized that time is not of the essence in the crime of child molesting. Barger v.
       State, 587 N.E.2d 1304, 1307 (Ind. 1992). This is so because “it is difficult for children to remember specific
       dates, particularly when the incident is not immediately reported as is often the situation in child molesting
       cases.” Id. Therefore, the precise time and date of the commission of a child molestation offense generally is
       not regarded as a material element of the crime. Id.



       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015                         Page 11 of 27
[19]   At trial, Carter tendered a final jury instruction regarding jury unanimity that

       separately stated, for each of the five counts, that

               In order to find the Defendant guilty of Count [I, II, III], each of you
               must agree, your verdict must be unanimous, upon the commission of
               a specific act of Criminal Deviate Conduct.
               ....
               In order to find the Defendant guilty of Count [IV, V], each of you
               must agree, your verdict must be unanimous, upon the commission of
               a specific act of fondling or touching.


[20]   Appellant’s Amended App. Vol. 1 at 29-20, 32-33. The trial court rejected the

       instruction, finding that it was covered by other of the trial court’s instructions.

       On appeal, Carter argues that the trial court erred by rejecting the instruction

       and claims the trial court failed to properly instruct the jury regarding the

       requirement of jury unanimity. The State maintains that the trial court’s

       decision to refuse the instruction was proper because it was not a correct

       statement of the law. Based on the facts and circumstances of this case, we

       agree with the State.


[21]   In reaching this decision, we rely on our Supreme Court’s instructive analysis in

       Baker, which presents facts similar to those before us. There, Baker was charged

       with one count of child molesting for each of the three alleged victims;

       however, the jury heard evidence of multiple acts of molesting for each victim.

       On appeal, Baker argued that some jurors may have relied on different evidence

       than the other jurors to convict him on each of the three counts. The Baker

       Court’s analysis recognized that “the State may in its discretion designate a

       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015       Page 12 of 27
       specific act (or acts) on which it relies to prove a particular charge”; however, if

       the State does not so designate, jurors should be instructed that in order to

       convict, they must “either unanimously agree that the defendant committed the

       same act or acts or that the defendant committed all of the acts described by the

       victim and included within the time period charged.” Id. The Baker Court

       adopted the reasoning of the California Supreme Court, which explained that

       this type of instruction, “‘in addition to allowing a conviction if the jurors

       unanimously agree on specific acts, also allows a conviction if the jury

       unanimously agrees the defendant committed all the acts described by the

       victim.’” Id. at 1177 (quoting People v. Jones, 270 Cal. Rptr. 611, 792 P.2d 643,

       650 (1990)). The California Supreme Court further observed, “[C]redibility is

       usually the ‘true issue’ [and] the jury either will believe the child’s testimony

       that the consistent repetitive patter of acts occurred or disbelieve it.” Id. In this

       case, Carter’s proposed instruction did not instruct the jury that it must

       unanimously agree that he committed all of the acts described by M.N. Thus, it

       was not a complete and correct statement of the law, and the trial court did not

       abuse its discretion when it rejected it.


[22]   That being said, Carter’s jury received the general jury-unanimity instruction,

       which stated, in part, “Each of you must refuse to vote for conviction unless

       you are convinced beyond a reasonable doubt of the defendant’s guilt. Your

       verdict must be unanimous . . . The foreperson will preside over your

       deliberations and must sign and date the verdict to which you all agree.”

       Appellant’s Amended App. Vol. 1 at 52, 55. The Baker Court held that such an


       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 13 of 27
       instruction – which “did not advise the jury that in order to convict Baker the

       jury must either unanimously agree that he committed the same act or acts or

       that he committed all of the acts described by the victim and included within

       the time period charged” – was insufficient. Baker, 948 N.E.2d at 1178.

       Because the defendant in Baker neither objected nor offered an instruction of his

       own, our Supreme Court analyzed the issue using the fundamental-error

       doctrine. Id. The Baker Court found that the only issue was the credibility of

       the alleged victims, i.e., whether they were lying, and “the jury resolved the

       basic credibility dispute against [Baker] and would have convicted him of any of

       the various offenses shown by the evidence to have been committed.” Id. at

       1179 (emphasis in original). Accordingly, the Baker Court held there was no

       fundamental error. Id.


[23]   Unlike Baker, Carter objected to the trial court’s instruction and submitted one

       of his own. However, as we have explained, Carter’s tendered instruction was

       not a correct statement of the law, or at least not a complete one. “[A] party

       who fails to tender a correct instruction waives any error regarding an

       incomplete or omitted instruction unless the error is fundamental.” Carson v.

       State, 686 N.E.2d 864, 865 (Ind. Ct. App. 1997), trans. denied. The purpose of

       an instruction is to inform the jury of the law applicable to the facts without

       misleading the jury and to enable it to comprehend the case clearly and arrive at

       a just, fair, and correct verdict. Id. The determinative question is whether the

       error by itself infected the entire trial such that the resulting conviction violates

       due process. Id. Thus, we must determine here whether the instructional error

       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015    Page 14 of 27
       was fundamental. 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. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014). In Ryan, our

       Supreme Court recently addressed the fundamental error doctrine, there in the

       context of alleged prosecutorial misconduct, and recognized that our task

       includes reviewing all relevant information given to the jury. It stated:

               In evaluating the issue of fundamental error, our task in this case is to
               look at the alleged misconduct in the context of all that happened and
               all relevant information given to the jury – including evidence admitted at
               trial, closing argument, and jury instructions – to determine whether the
               misconduct had such an undeniable and substantial effect on the jury’s
               decision that a fair trial was impossible.
[24]   Id. at 667-68 (emphasis added and internal cites and quotes omitted); see also

       Manuel v. State, 793 N.E.2d 1215, 1218 (Ind. Ct. App. 2003) (when determining

       whether instructional error resulted in fundamental error, we look to all

       relevant information given to jury, including closing argument and other

       instructions), trans. denied.


[25]   As was the case in Baker, the case before us largely turns on credibility. The

       jury heard evidence that M.N. was forced to perform oral sex upon Carter, and

       submit to oral sex performed by Carter, submit to and perform anal intercourse,

       and fondle and touch Carter’s penis, and submit to Carter touching him. He

       reported the abuse to M.J., who did not believe him, and to Mother twice. He

       repeated the allegations to multiple interviewers and nurse examiners. The



       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015         Page 15 of 27
       main issue for the jury to resolve was whether M.N. was telling the truth with

       regard to Carter’s acts of molestation.


[26]   We note that the prosecutor in closing argument specifically addressed what

       evidence established which acts as alleged in the charges. That is, although she

       recognized that “[M.N.] told you that these things happened a lot,” she

       thereafter identified a number of specific acts as they related to each count. Tr.

       at 583. For instance, she reminded the jury that M.N. described three different

       types of deviate sexual conduct, relative to Counts I, II, and III: Carter put his

       penis in M.N.’s anus; Carter sucked M.N.’s penis; and Carter made M.N. suck

       his. Id. at 582-84. With regard to Counts IV and V, fondling and touching, she

       reminded the jury that M.N. verbally described and demonstrated with his hand

       the manner in which Carter touched M.N.’s penis and required M.N. to touch

       his. With regard to unanimity, she further told the jury, “[T]here’s twelve of

       you and you all have to be in agreement on your decision and you have to agree

       that the acts that [M.N.] described did, in fact, occur in order for you to find the

       Defendant guilty and it has to be unanimous.” Id. at 585. We also observe that

       each member of the jury was polled as to the verdict, and each member

       affirmed his or her agreement. Considering all relevant information that was

       before the jury, we conclude, as did the Court in Baker, that Carter has failed to

       demonstrate that any instructional error constituted fundamental error.




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                              II. Admission of Expert Testimony
[27]   Carter claims that the trial court erred when it admitted Smallwood’s

       testimony. The admission and exclusion of evidence falls within the sound

       discretion of the trial court, and we will review the admission of evidence solely

       for an abuse of discretion. Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App.

       2012). An abuse of discretion occurs where the decision is clearly against the

       logic and effect of the facts and circumstances before the court. Hoglund v. State,

       962 N.E.2d 1230, 1237 (Ind. 2012). However, even if the trial court

       erroneously admits evidence, such error will be disregarded unless it affects the

       substantial rights of a party. Id. at 1238. Specifically, we look to the probable

       impact of the erroneous admission on the jury. Id. The improper admission of

       evidence is harmless error if the conviction is supported by substantial evidence

       of guilt satisfying this court that there is no substantial likelihood the challenged

       evidence contributed to the conviction. Id. Here, Carter argues that the trial

       court abused its discretion when it admitted the testimony of Smallwood, over

       his objections, request for limiting instruction, and motion for mistrial. He

       claims that her testimony impermissibly vouched for M.N.’s credibility and

       ultimately denied him a fair trial.


[28]   Regarding improper vouching testimony generally, Indiana Evidence Rule

       704(b) provides that “[w]itnesses may not testify to opinions concerning intent,

       guilt, or innocence in a criminal case; the truth or falsity of allegations; whether

       a witness has testified truthfully; or legal conclusions.” Such vouching

       testimony is an invasion of the province of the jurors in determining the weight

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       they should place upon a witness’s testimony. Gutierrez v. State, 961 N.E.2d

       1030, 1034 (Ind. Ct. App. 2012). It is essential that the trier of fact determine

       the credibility of the witnesses and the weight of the evidence. Id.


[29]   During its case-in-chief, and after M.N. testified, the State presented the

       testimony of Smallwood, over Carter’s objections. Smallwood, a forensic

       interviewer at the Dr. Bill Lewis Center for Children, provided expert testimony

       concerning the dynamics of child abuse, the disclosure process, and when and

       why a child may recant his disclosure of the abuse. Smallwood testified to a

       number of factors that contribute to a child’s delay in disclosing abuse,

       including secrecy, lack of witnesses, fear or shame, and worry about keeping the

       family intact. She noted that “a real gender issue” exists, and studies reveal that

       it is more difficult for males to disclose sexual abuse. Tr. at 516. She also

       recognized the fact that with delayed disclosure, the child may face the

       skepticism associated with “why are you telling now?” Id. Smallwood

       continued that sometimes children retract or recant their statement; she stated

       that a child may recant because the abuse did not happen or may do so because,

       once they report the abuse, the family is pulled apart, which is exactly what

       they feared would occur. They may feel the effects of anger or lack of support,

       a sense of, “[L]ook, you made this happen.” Id. at 518. In this situation, a

       child might feel responsible for “putting it all back together, so they take it back,

       they say it didn’t happen.” Id.


[30]   We disagree with Carter that Smallwood’s testimony ran afoul of Indiana

       Evidence Rule 704(b). Although Smallwood interviewed M.N., she never

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       mentioned M.N. in her testimony or made any statement or opinion regarding

       the truth or falsity of M.N.’s allegations of molestation. Smallwood did not

       purport to have any opinion regarding the case at bar, nor did she refer to any

       specific facts at issue. Her testimony was broad, generalized, and included

       reference to results of research studies. In her testimony, she confirmed that a

       recantation could mean that no abuse had occurred. We note, and as the State

       reminds us, this court has permitted expert testimony explaining the behaviors

       and dynamics associated with domestic violence, including that associated with

       why a victim may recant. Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App.

       2012), trans. denied. The Otte court noted that “the reactions and behaviors of

       domestic violence victims are not commonly understood by laypersons,” and

       “testimony regarding a victim’s propensity to recant . . . simply provides the

       jury with information outside its experience, permitting it to assess credibility

       based upon a more complete understanding of all potential factors at issue.” Id.

       We find that Smallwood’s testimony likewise provided information to the jury

       beyond that commonly understood by laypersons, and, under the circumstances

       before us, her expert testimony did not constitute impermissible vouching

       testimony.


                                 III. Sufficiency of the Evidence
[31]   Carter next asserts that the evidence was not sufficient to convict him. When

       reviewing the sufficiency of evidence to support a conviction, we consider only

       the probative evidence and reasonable inferences supporting the trial court’s

       decision. Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans.

       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 19 of 27
       denied. It is the role of the trier-of-fact to assess witness credibility and weigh

       the evidence to determine whether it is sufficient to support a conviction. Id.

       “To preserve this structure, when we are confronted with conflicting evidence,

       we consider it most favorably to the trial court’s ruling.” Id. It is not necessary

       that the evidence overcome every reasonable hypothesis of innocence; rather,

       the evidence is sufficient if an inference reasonably may be drawn from it to

       support the trial court’s decision. We will affirm a conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Id. We note that it is well settled that the uncorroborated

       testimony of the victim, even if the victim is a minor, is sufficient to sustain a

       conviction for child molesting. Morrison v. State, 462 N.E.2d 78, 79 (Ind. 1984).


[32]   Carter was convicted of three counts of Class A felony and two counts of Class

       C felony child molesting. In order to convict Carter of Class A felony child

       molesting, the State was required to prove beyond a reasonable doubt that

       Carter, over age twenty one, knowingly or intentionally performed or submitted

       to deviate sexual conduct with M.N. when he was under fourteen years of age,

       namely: Carter placed his penis in or on M.N.’s mouth, he placed his mouth on

       M.N.’s penis, and he placed his penis in M.N’s anus. Ind. Code § 35-42-4-3;

       Appellant’s Amended App. Vol. 2 at 1-3. The offense of child molesting as a Class

       C felony is set forth in Indiana Code section 35-42-4-3(b), which provides, “A

       person who, with a child under fourteen (14) years of age, performs or submits

       to any fondling or touching, of either the child or the older person, with intent

       to arouse or to satisfy the sexual desires of either the child or the older person,


       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015    Page 20 of 27
       commits child molesting, a Class C felony.” Mere touching alone is insufficient

       to constitute the crime of child molesting. Bass v. State, 947 N.E.2d 456, 460

       (Ind. Ct. App. 2011), trans. denied. The State must also prove beyond a

       reasonable doubt that the act of touching was accompanied by the specific

       intent to arouse or satisfy sexual desires. Id. 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 consequence to which such

       conduct usually points. Id.


[33]   Here, M.N. testified that the molestations occurred in each of the five homes in

       which they lived. He testified to acts of deviate sexual conduct as charged. He

       testified that Carter touched his penis and that Carter made M.N. “give him

       masturbation” and that sometimes Carter ejaculated; from this the jury could

       infer the intent to arouse or satisfy sexual desires. Tr. at 247. Carter invokes

       the incredible dubiosity rule to claim that M.N.’s “uncorroborated testimony

       was so unreliable and untrustworthy” that his convictions must be reversed.

       Appellant’s Br. at 28. The incredible dubiosity rule provides that a court may

       impinge on the jury’s responsibility to judge witness credibility only when

       confronted with inherently improbable testimony or coerced, equivocal, wholly

       uncorroborated testimony of incredible dubiosity. Love v. State, 761 N.E.2d

       806, 810 (Ind. 2002). Application of this rule is rare, and “‘[T]he standard to be

       applied is whether the testimony is so incredibly dubious or inherently

       improbable that no reasonable person could believe it.’” Hampton v. State, 921

       N.E.2d 27, 29 (Ind. Ct. App. 2010) (quoting Fajardo v. State, 859 N.E.2d 1201,

       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 21 of 27
       1208 (Ind. 2007), trans. denied. The rule applies only when a witness contradicts

       herself or himself in a single statement or while testifying, and does not apply to

       conflicts between multiple statements. Manuel v. State, 971 N.E.2d 1262, 1271

       (Ind. Ct. App. 2012). Cases where we have found testimony inherently

       improbable have involved situations either 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,” or where the witness was so equivocal about the

       act charged that her uncorroborated and coerced testimony “was riddled with

       doubt about its trustworthiness.” Watkins v. State, 571 N .E.2d 1262, 1265 (Ind.

       Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624 (Ind. 1991). Carter cannot

       fit his case into either category.


[34]   Carter suggests that the events as described by M.N. “could not have

       happened” and “were contrary to common sense and human experience”

       because there was no medical, physical, or eye-witness testimony. Appellant’s

       Br. at 26-27. He points to “exculpatory eye-witness testimony” of his brothers

       and Mother who “had never seen, had no personal knowledge [of], nor were

       they aware of any act of sexual misconduct between Carter and M.N.” Id. at

       10. His argument seems to be that the molestation could not have happened in

       the house without someone hearing it or seeing it, particularly those acts that

       M.N. described happened in his bedroom while M.J. was also present. We

       disagree. Some of the acts happened when family members were home, while

       others occurred while no one was home. That no other person testified to




       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 22 of 27
       witnessing or hearing M.N. being molested does not establish that the abuse did

       not happen.


[35]   We also reject Carter’s argument that M.N.’s testimony was untrustworthy and

       contradictory. Carter makes much of the fact that M.N. told M.J. that he had

       fabricated the molestation accusations. Id. at 24 (“concerning the lies of

       M.N.”), at 28 (“M.N. stated that he lied” and “the only reason the lie came

       out”). However, M.N. testified at trial that, in fact, the molestations did occur,

       both before Carter moved out in November 2011 and after he returned in early

       2012, and he explained that his reason for untruthfulness to M.J. was to help

       Mother, who M.N. realized was struggling as a single parent and without

       Carter at home to help supervise the children and run the household. M.N.’s

       testimony was consistent, and at no time did he contradict himself while

       testifying. Furthermore, his testimony was consistent with his reports of abuse

       to the forensic interviewers and nurses who performed examinations of him.

       The jury had the opportunity to hear M.N.’s testimony and to determine his

       credibility. We decline Carter’s invitation to impinge on the province of the

       jury and reassess that credibility. The State presented sufficient evidence to

       convict Carter of the charged offenses.


                                IV. Appropriateness of Sentence
[36]   Finally, Carter challenges his ninety-eight-year executed sentence for the three

       Class A and two Class C felony convictions. Carter urges us to find that the

       trial court “abused its discretion” when it sentenced Carter because the decision

       is clearly against the logic and effect of the facts and circumstances before the
       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 23 of 27
trial court. Appellant’s Br. at 2, 12-13, 29. A trial court can abuse its discretion

by (1) issuing an inadequate sentencing statement; (2) finding aggravating or

mitigating factors that are not supported by the record; (3) omitting factors that

are clearly supported by the record and advanced for consideration; or (4) by

finding factors that are improper as a matter of law. Laster v. State, 956 N.E.2d

187, 193 (Ind. Ct. App. 2011). Carter’s argument, however, focuses not on the

sentencing statement or on aggravators and mitigators, but on his age,

character, steady employment and lack of criminal history, maintaining that

these factors warrant a reduction in his sentence.7 Accordingly, we review

Carter’s sentence under Appellate Rule 7(B), which allows us to revise a

sentence if, after due consideration of the trial court’s decision, we find that the

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

of the offender. It is the defendant’s burden on appeal to persuade the

reviewing court that the sentence imposed by the trial court is inappropriate.

Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.

“[W]hether we regard a sentence as appropriate at the end of the day turns 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Upon appellate review,




7
 We remind counsel that whether a trial court has abused its discretion by improperly recognizing
aggravators and mitigators when sentencing a defendant and whether a defendant’s sentence is inappropriate
under Indiana Appellate Rule 7(B) are two distinct analyses. Hape v. State, 903 N.E.2d 977, 1000 n.12 (Ind.
Ct. App. 2009), trans. denied.



Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015                      Page 24 of 27
       we have the power to affirm, reduce, or increase the sentence. Akard v. State,

       937 N.E.2d 811, 813 (Ind. 2010).


[37]   Carter’s Class A felony child molesting convictions subjected him to

       imprisonment for a fixed term of between twenty and fifty years, with the

       advisory being thirty years. Ind. Code § 35-50-2-4. Carter’s Class C felony

       child molesting conviction subjected him to imprisonment for a fixed term of

       between two and eight years, with the advisory being four years. Ind. Code §

       35-50-2-6(a). As to the nature of the offense, the advisory sentence is the

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

       crime committed. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified

       on reh’g, 875 N.E.2d 218 (Ind. 2007).


[38]   Here, the trial court sentenced Carter to the advisory sentence of thirty years for

       the Class A felony convictions and the advisory sentence of four years for the

       Class C felony convictions, ordering the sentences to be served consecutively to

       one another for a total of ninety-eight years. Carter argues that the nature of

       the offense does not justify such a lengthy sentence because he “made no threat

       to M.N,” and he did not beat or “severely brutalize” M.N. except as was

       inherent in the commission of the crime. Appellant’s Br. at 29; Reply Br. at 16.

       He further asserts that his character, likewise, does not justify the imposed

       ninety-eight-year sentence because he had no prior criminal history, he had a

       history of steady employment, and he was young, twenty-two years old at the

       start of the allegations and twenty-five at the time of sentencing. He also

       presented to the trial court letters from a number of individuals who pointed out

       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 25 of 27
       that he had no prior trouble with the law, kept a job, was hard-working, and

       was family-oriented. Carter asserts that he possesses the potential for

       reformation and rehabilitation that would allow him to return as a productive

       member of society.


[39]   The State responds that Carter systematically and repeatedly abused eight-year-

       old M.N., who called him “dad.” The State opines that it was “mind-boggling”

       that Carter “had within his grasp a complete reprieve,” when M.N. recanted his

       allegations, and due to the family’s unwillingness to cooperate with law

       enforcement, the investigation stalled; Carter could have “walked away” from

       charges of Class A felonies by no longer committing them. Appellant’s Br. at 21.

       However, upon returning to the home, Carter resumed molesting M.N., thereby

       “capitalizing” on M.N.’s self-sacrificing love for his mother. Id. at 22. The

       State argues that, although Carter was only twenty-two years of age when the

       offenses began, he was “old enough to know better.” Id.


[40]   Carter occupied a position of trust with M.N., and his offenses are undeniably

       serious. However, on balance of all the factors, we find that the ninety-eight-

       year sentence is out of range of appropriate results. We revise Carter’s sentence

       to two consecutive thirty-year terms for two of the Class A felony convictions

       and to one concurrent thirty-year term for the third Class A felony, plus two

       consecutive four-year terms on the Class C felony convictions, for an aggregate

       sentence of sixty-eight years. We affirm Carter’s convictions and remand the

       case to the trial court with instructions to enter such sentence.



       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 26 of 27
[41]   Affirmed and remanded with instructions.


       Friedlander, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015   Page 27 of 27
