      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                         Jan 28 2016, 8:25 am
      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
      Stacy R. Uliana                                        Gregory F. Zoeller
      Bargersville, Indiana                                  Attorney General of Indiana
                                                             Eric P. Babbs
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Michael S. Washington,                                     January 28, 2016

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 84A01-1504-CR-140

              v.                                                 Appeal from the Vigo Superior
                                                                 Court
                                                                 The Honorable Michael J. Lewis,
      State of Indiana,                                          Judge
      Appellee-Plaintiff.                                        Trial Court Cause No. 84D06-0702-
                                                                 FA-385




      Bradford, Judge.



                                            Case Summary
[1]   When Appellant-Defendant Michael Washington married Jackie Washington,

      Jackie’s daughter A.F. was two years old. When A.F. was four, Washington

      Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016     Page 1 of 10
      began fondling her breasts and vagina, and, when she was ten, he began

      performing oral sex on her. Several years later, after A.F. went to the

      authorities and reported what Washington had done to her, Appellee-Plaintiff

      the State ultimately charged him with five counts of child molesting, three of

      which were based on his molestation of A.F. and covered three non-

      overlapping time periods.


[2]   During jury deliberations at Washington’s trial, the jury asked the trial court if

      it was required to find Washington guilty of all three counts if it found him

      guilty of one. The trial court replied that it was for the jury to determine. The

      jury then indicated that it was deadlocked, and the trial court clarified that each

      count was separate and that it could find Washington guilty of all three, not

      guilty of all three, or guilty on some and not guilty on others. The jury found

      Washington guilty of one count of Class A felony child molesting, and the trial

      court sentenced him to twenty years of incarceration. Washington contends

      that the State produced insufficient evidence to sustain his conviction and that

      the trial court abused its discretion in responding to the jury’s inquiries.

      Because we disagree, we affirm.



                            Facts and Procedural History
[3]   A.F. was born August 4, 1982, to Jackie and her first husband. Jackie

      subsequently married Washington when A.F. was approximately two years old.

      Washington, who cared for A.F. while Jackie worked, began fondling A.F.’s

      breasts and vagina when A.F. was four. When A.F. was ten, Washington

      Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016   Page 2 of 10
      began performing oral sex on her, which continued until A.F. was nineteen.

      A.F. testified that Washington fondled her daily and performed oral sex on her

      twelve to thirteen times a week throughout this period.


[4]   In 2005, A.F. (by this time twenty-two or twenty-three years old), along with

      her sister and Jackie’s niece, gave statements to police in which they alleged

      that Washington had molested them. When Jackie’s mother confronted

      Washington, he admitted that he had molested “them[,]” apologized, and gave

      no reasons for doing so “[e]xcept for the beer.” Tr. pp. 201, 202. Washington

      also admitted to A.F.’s ex-husband that he had molested “the girls [and] that he

      was sorry and that he was gonna get help.” Tr. p. 224. On February 1, 2007,

      the State charged Washington with three counts of Class A felony child

      molesting. On September 5, 2013, in an amended charging information, the

      State charged Washington with four counts of Class B felony child molesting

      and one count of Class A felony child molesting. Counts III, IV, and V

      involved the alleged molestation of A.F., alleging sexual intercourse or deviate

      sexual conduct that occurred in Count III between August 4, 1992, and June

      30, 1994; in Count IV between July 1, 1994, and June 30, 1996; and in Count V

      between July 1, 1996, and August 3, 1996.


[5]   Washington’s jury trial began on February 18, 2015. During jury deliberations,

      the jury asked the trial court, “on counts 3, 4 & 5, if we find him guilty of one,

      does that make him guilty of all three?” Appellant’s App. p. 218. The trial

      court replied, “That is for you as the jury to determine.” Appellant’s App. p.

      218. Later, the jury sent the following to the trial court: “We are ‘stuck’ with a

      Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016   Page 3 of 10
final tally of 9-3. Where do we go from here?” Appellant’s App. p. 219. In

response, the trial court called the jury into court and the following exchange

occurred:


        THE COURT:                Okay we’re back on the record, State of
                                  Indiana versus Michael Washington[.] Have
                                  a question from the jury. Um, we are stuck
                                  with a final tally of, final tally of nine to three
                                  where do we go from here? Well is there
                                  anything else the Court could do or the
                                  attorney’s [sic] could do to assist you? Do we
                                  have a foreperson?
        Juror:                    Yes.
        THE COURT:                Is there anything else we could do to assist
                                  you?
        Juror:                    Yeah, um…
        THE COURT:                I, I gave you that answer. We can’t answer
                                  any further other than if you find guilty on
                                  number three does that mean automatic four
                                  and five, those are all, as the prosecutor
                                  explained to you, those are all separate
                                  counts. So they could be count 1, everything
                                  could be not guilty, everything could be
                                  guilty, you could have not guilty on some,
                                  guilty on others. That’s how…
        Juror:                    Okay.
        THE COURT:                Is there anything else we can do? Other than
                                  that question?
        Juror:                    I can’t think of anything else, anyone else?
                                  We can not [sic] think of anything.
        THE COURT:                Nothing that will help this issue come to a
                                  decision?


Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016   Page 4 of 10
              Juror:                    We were about there.
      Tr. pp. 426-27.


[6]   After completing deliberations, the jury found Washington guilty of Count V

      and not guilty of the other four counts. On March 20, 2015, the trial court

      sentenced Washington to twenty years of incarceration.


                                 Discussion and Decision
         I. Whether the State Produced Sufficient Evidence to
                 Sustain Washington’s Conviction
[7]   Washington contends that the State produced insufficient evidence to sustain

      his conviction for Class A felony child molesting. When reviewing the

      sufficiency of the evidence, we neither reweigh the evidence nor resolve

      questions of credibility. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). We

      look only to the evidence of probative value and the reasonable inferences to be

      drawn therefrom which support the verdict. Id. If from that viewpoint there is

      evidence of probative value from which a reasonable trier of fact could conclude

      that the defendant was guilty beyond a reasonable doubt, we will affirm the

      conviction. Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993).


[8]   Washington argues, essentially, that A.F.’s testimony that she was molested

      twelve to thirteen times per week from around 1992 to around 2001 is too

      vague to establish that she was molested at least once between July 1 and

      August 3, 1996. The jury, however, was free to believe all, none, or any part of

      A.F.’s testimony, as it saw fit. Put another way, the jury’s apparent refusal to

      Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016   Page 5 of 10
       credit A.F.’s testimony that she was molested before July 1, 1996, or after

       August 3, 1996, does not require it to discredit all of her testimony. The jury

       was within its prerogative to conclude that A.F.’s testimony established that she

       was molested at least one time between July 1 and August 3, 1996, and not

       anytime else. Washington’s argument amounts to nothing more than an

       invitation to reweigh the evidence, which we will not do.


[9]    Washington also contends that the incredible dubiosity rule mandates reversal

       of his conviction. “Appellate courts may, however, apply the ‘incredible

       dubiosity’ rule to impinge upon a jury’s function to judge the credibility of a

       witness.” Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citing Love v.

       State, 761 N.E.2d 806, 810 (Ind. 2002)).


               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.

       Love, 761 N.E.2d at 810 (citations omitted).


[10]   At the very least, the incredible dubiosity rule does not apply in this case

       because A.F. was not the sole witness to present evidence that Washington

       molested her. Jackie’s mother and A.F.’s ex-husband both testified that

       Washington, after being formally accused of molestation, admitted to molesting

       “them” or “the girls,” respectively. Because A.F. was not the sole witness


       Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016   Page 6 of 10
       whose testimony tended to support Washington’s conviction, the incredibly

       dubiosity rule does not apply, and we need not address his argument in this

       regard further.1


            II. Whether the Trial Court’s Response to the Jury’s
                          Impasse was Improper
[11]   Washington contends that the trial court’s response to the jury’s questions

       regarding their impasse was erroneous, necessitating reversal. The State argues,

       inter alia, that Washington has waived this claim for appellate review. In order

       to preserve a claimed error in the trial court’s response to a jury question, at the

       very least the party must object, which Washington did not do. See Foster v.

       State, 698 N.E.2d 1166, 1169 (Ind. 1998) (concluding that claim regarding

       response to jury question was waived where defendant did not object to trial

       court’s decision not to answer jury question and did not propose a response or

       supplemental jury instructions). Although Washington contends that he was

       denied the opportunity to object outside the presence of the jury to the trial

       court’s proposed responses, there is nothing in the record to indicate that this

       occurred. “The appellant has the burden of establishing the record necessary to

       his claim.” Id. at 852. Because the record is devoid of any indication of an




       1
         Finally, relying only on a case from Iowa, Washington contends that we should subject the jury’s allegedly
       inconsistent verdicts to heightened scrutiny. Even if we assume that the jury’s verdicts were, in fact,
       inconsistent, such a claim is not a viable issue on appeal in Indiana, see Beattie v. State, 924 N.E.2d 643, 649
       (Ind. 2010), as Washington himself acknowledges.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016              Page 7 of 10
       objection by Washington, we conclude that the issue is waived for appellate

       consideration.


[12]   Washington, however, argues that even if he waived the issue below, the trial

       court’s responses to the jury’s questions amounted to fundamental error.


               A claim that has been waived by a defendant’s failure to raise a
               contemporaneous objection can be reviewed on appeal if the
               reviewing court determines that a fundamental error occurred.
               See, e.g., Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002);
               Hayworth v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009). The
               fundamental error exception is “extremely narrow, and applies
               only when the error constitutes a blatant violation of basic
               principles, the harm or potential for harm is substantial, and the
               resulting error denies the defendant fundamental due process.”
               Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The error
               claimed must either “make a fair trial impossible” or constitute
               “clearly blatant violations of basic and elementary principles of
               due process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009).
               This exception is available only in “egregious circumstances.”
               Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).
       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).


               A “finding of fundamental error essentially means that the trial
               judge erred ... by not acting when he or she should have,” even
               without being spurred to action by a timely objection. Whiting v.
               State, 969 N.E.2d 24, 34 (Ind. 2012). An error blatant enough to
               require a judge to take action sua sponte is necessarily blatant
               enough to draw any competent attorney’s objection. But the
               reverse is also true: if the judge could recognize a viable reason
               why an effective attorney might not object, the error is not
               blatant enough to constitute fundamental error.
       Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).


       Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016   Page 8 of 10
[13]   Indiana Jury Rule 28 provides as follows:


               If the jury advises the court that it has reached an impasse in its
               deliberations, the court may, but only in the presence of counsel,
               and, in a criminal case the parties, inquire of the jurors to
               determine whether and how the court and counsel can assist
               them in their deliberative process. After receiving the jurors’
               response, if any, the court, after consultation with counsel, may
               direct that further proceedings occur as appropriate.


[14]   According to Washington, the jury’s questions about Counts III, IV, and V

       related to legality of inconsistent verdicts, and the trial court’s response that the

       jury could find Washington guilty or not guilty of any or all of the charges

       against him amounted to improper encouragement to deliver inconsistent

       verdicts. Washington’s basic premise, however, is false. Quite simply, there is

       no logical inconsistency in finding him guilty of only one of the three charges

       against him. As explained previously, the three charges against Washington

       arose from his alleged molestation of A.F. during three, non-overlapping time

       periods. The jury was free to find that Washington molested A.F. during only

       one of those three time periods (or none, two, or all three, for that matter) if it

       saw fit, and it did. Contrary to Washington’s contention, there is no logical

       inconsistency between the jury’s verdicts in this case. Consequently, the trial

       court’s response to the jury’s questions, even if it had encouraged a split verdict,

       did not amount to fundamental error.


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




       Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016   Page 9 of 10
Baker, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 84A01-1504-CR-140 | January 28, 2016   Page 10 of 10
