MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Mar 07 2016, 8:18 am

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
P. Stephen Miller                                        Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Diverlo Georges,                                         March 7, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1508-CR-1094
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1410-FA-45



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016       Page 1 of 8
                                             Case Summary
[1]   Diverlo Georges (“Georges”) was convicted after a jury trial of two counts of

      Child Molesting, as Class A felonies,1 and one count of Child Molesting, as a

      Class C felony.2 He was sentenced to an aggregate term of imprisonment of

      thirty years, and now appeals.


[2]   We affirm.



                                                       Issues
[3]   Georges presents two issues for our review, which we restate as:

                    I.     Whether there was sufficient evidence to sustain his
                           conviction of Child Molesting, as a Class C felony; and


                   II.     Whether the evidence supporting his convictions for Child
                           Molesting, as Class A felonies, was incredibly dubious.


                                 Facts and Procedural History
[4]   J.N. and Georges were both Haitian immigrants and part of the same extended

      family. J.N. came to the United States from Haiti in August 2011 at the age of

      eleven. J.N., Georges, J.N.’s father, J.N.’s stepmother, and several of J.N.’s




      1
        Ind. Code § 35-42-4-3(a)(1). Georges’s offenses were committed prior to the July 1, 2014, effective date of
      substantial revisions to Indiana’s criminal statutes. We refer throughout to the versions of the statutes in
      effect at the time of Georges’s offenses.
      2
          I.C. § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016               Page 2 of 8
      siblings shared a home in Fort Wayne until December 30, 2011, when Georges

      and his wife moved into their own apartment. After Georges and his wife

      moved to their own residence, J.N. and her siblings would visit Georges’s home

      from time to time.


[5]   On one Sunday during the winter of 2011 or early 2012, J.N. and several

      siblings were visiting Georges’s home after church. Georges told J.N. to sit on

      his lap, and J.N. complied. Georges touched J.N.’s leg and rubbed a part of her

      body, and then got up and took a shower.


[6]   After Georges was done showering, he told J.N. to come into a bedroom with

      him. Georges turned off the light and closed the door in the room. J.N., who

      was wearing a skirt, was sitting on the edge of the bed. Georges used his hand

      to push J.N.’s underwear aside and initiated sexual intercourse with J.N. J.N.

      pushed Georges away; Georges told J.N. not to push him, and again initiated

      sexual intercourse with J.N. Georges eventually ceased intercourse and

      ejaculated onto a towel he had placed on the floor. He then told J.N. not to tell

      anyone what had happened because both he and J.N. would get in trouble.


[7]   On another occasion, J.N. and several siblings were staying with Georges and

      his wife for the weekend. While J.N.’s siblings were playing or watching

      television, Georges had J.N. come into the same bedroom as before, and again

      engaged in sexual intercourse with J.N. As on the prior occasion, Georges

      ejaculated onto a towel he had placed on the floor.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016   Page 3 of 8
[8]    J.N. eventually reported these incidents to a school guidance counselor, who in

       turn contacted Child Protective Services and the Fort Wayne Police. On

       October 15, 2014, the State charged Georges with two counts of Child

       Molesting, as Class A felonies, and one count of Child Molesting, as a Class C

       felony.


[9]    A jury trial was conducted on June 9 and 10, 2015. At the conclusion of the

       trial, the jury found Georges guilty as charged. A sentencing hearing was

       conducted on July 24, 2015, during which the trial court entered judgment

       against George and sentenced him to thirty years imprisonment for each of the

       Class A felony convictions and to four years imprisonment for the Class C

       felony conviction, with all three terms run concurrent with one another,

       yielding an aggregate sentence of thirty years.


[10]   This appeal ensued.



                                 Discussion and Decision
                                  Sufficiency of the Evidence
[11]   Georges contends that there was insufficient evidence to sustain his conviction

       for Child Molesting, as a Class C felony. Our standard of review in sufficiency

       challenges is well settled. We consider only the probative evidence and

       reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

       146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh

       evidence. Id. We will affirm the conviction unless “no reasonable fact-finder

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016   Page 4 of 8
       could find the elements of the crime proven beyond a reasonable doubt.” Id.

       (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is

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

       verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.

       2001)).


[12]   To convict Georges of Child Molesting as a Class C felony, as charged, the

       State was required to prove beyond a reasonable doubt that Georges performed

       or submitted to fondling or touching with J.N., then a child under fourteen

       years of age, with the intent of arousing or satisfying either his own or J.N.’s

       sexual desires. See I.C. § 35-42-4-3(b); App’x at 16.


[13]   Here, Georges contends that there was insufficient evidence to sustain the

       verdict based upon: 1) a difference between what the State argued it would

       establish in opening argument and J.N.’s trial testimony, and 2) purported lack

       of sexual intent on Georges’s part. As to the first point, Georges argues that the

       State failed to produce evidence that he touched J.N.’s leg, a point the State

       said during opening argument it would prove, and thus there is insufficient

       evidence. However, J.N.’s testimony at trial is that Georges had J.N. sit on his

       lap and that, while she was sitting on Georges’s lap, he touched J.N. “right

       here, like he just rubbed it.” (Tr. at 196-97.) That is, J.N.’s testimony

       established touching in the form both of sitting on Georges’s lap and some

       additional form of touching J.N.’s body. J.N.’s testimony, including the phrase

       “right here,” indicates that the jury was made aware visually of what part of

       J.N.’s body Georges may have touched. Neither the statute nor the charging

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016   Page 5 of 8
       information specifically require proof that Georges touched J.N.’s leg, and we

       decline Georges’s apparent invitation to reweigh the evidence on this point.


[14]   Turning to the question of intent, J.N. testified that immediately after Georges

       had J.N. sit on his lap, he got up to take a shower and, after the shower,

       brought J.N. to a bedroom and engaged in sexual intercourse with her. Given

       the brief span of time and J.N.’s testimony that Georges had rubbed some part

       of her while she sat on Georges’s lap, the jury could reasonably infer that

       Georges’s conduct before the shower was intended to arouse his sexual desires.

       We accordingly conclude that there was sufficient evidence to sustain Georges’s

       conviction for Child Molesting, as a Class C felony.


                                        Incredible Dubiosity
[15]   Georges also argues that J.N.’s testimony supporting his Class A felony

       convictions was incredibly dubious.

               Under the incredible dubiosity rule, a court will impinge on a
               jury's responsibility to judge witness credibility only when
               confronted with inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). The
               incredible dubiosity rule, however, is limited to cases where a
               sole witness presents inherently contradictory testimony which is
               equivocal or the result of coercion and there is a complete lack of
               circumstantial evidence of the defendant’s guilt. Id.


       Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001) (emphasis added). “The

       incredible dubiosity rule applies to conflicts in trial testimony rather than


       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016   Page 6 of 8
       conflicts that exist between trial testimony and statements made to the police

       before trial.” Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006)

       (citing Reyburn v. State, 737 N.E.2d 1169, 1171 (Ind. Ct. App. 2000)). For

       testimony to be so incredibly dubious as to warrant reversal of a conviction or

       delinquency adjudication, the single witness’s testimony must be coerced or

       “inherently improbable [so] that no reasonable person could believe it.” Love v.

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


[16]   The incredible dubiosity rule does not apply here. In Moore v. State, 27 N.E.3d

       749 (Ind. 2015), the Indiana Supreme Court addressed an appeal from a murder

       case in which there was only one eyewitness to a shooting. Id. at 757. The

       Moore Court held that the incredible dubiosity rule did not apply because, while

       there was only one eyewitness to the shooting, other witnesses’ testimonies

       “placed Moore at the scene” or provided other forms of corroboration. Id. The

       court reiterated that “the testimony of multiple witnesses alone precludes the

       application of the incredible dubiosity rule.” Id. at 758.


[17]   Here, multiple witnesses provided testimony. Georges is correct that the only

       eyewitness to the offense was J.N. However, several of J.N.’s and Georges’s

       family members testified as to J.N.’s age and the timing of her arrival in the

       United States, the timing of Georges’s move out of J.N.’s family home, and the

       timing of instances in which Georges would have had access to J.N. without

       other adults present in his home. The incredible dubiosity rule therefore does

       not apply. And because Georges stated in his brief that he would “concede[]

       this issue” if he was incorrect as to the applicability of the incredible dubiosity

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016   Page 7 of 8
       rule in this case (Appellant’s Br. at 8), we find no other contention of error or

       basis for reversal.



                                               Conclusion
[18]   There was sufficient evidence to support Georges’s conviction for Child

       Molesting, as a Class C felony. The evidence supporting Georges’s convictions

       for Child Molesting, as Class A felonies, is not subject to analysis under the

       incredible dubiosity rule.


[19]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016   Page 8 of 8
