      MEMORANDUM DECISION
                                                                               FILED
      Pursuant to Ind. Appellate Rule 65(D),                              Jun 10 2016, 8:25 am
      this Memorandum Decision shall not be                                    CLERK
      regarded as precedent or cited before any                            Indiana Supreme Court
                                                                              Court of Appeals
      court except for the purpose of establishing                              and Tax Court


      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      Gregory L. Fumarolo
      Fort Wayne, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Timothy L. Hall,                                        June 10, 2016
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              02A03-1508-CR-1134
              v.                                              Appeal from the Allen Superior
                                                              Court
      State of Indiana,                                       The Honorable John F. Surbeck,
      Appellee-Plaintiff.                                     Jr., Judge
                                                              Trial Court Cause No.
                                                              02D05-1401-FA-2



      Najam, Judge.


                                       Statement of the Case
[1]   Timothy L. Hall (“Hall”) appeals his convictions for three counts of child

      molesting, as a Class A felony, one count of child molesting, as a Class C

      felony, one count of sexual misconduct with a minor, as a Class B felony, and

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016         Page 1 of 13
      one count of sexual misconduct with a minor, as a Class C felony, following a

      jury trial. He raises three issues on appeal, namely:


              1. Whether the State presented sufficient evidence to support his
                 convictions.


              2. Whether he was denied a fair trial due to the trial court’s
                 exclusion of certain evidence.


              3. Whether his sentence is inappropriate in light of the nature of
                 the offenses and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On January 2, 2014, the State charged Hall with the following crimes involving

      his minor daughter, B.B.: counts I through VI, child molestation of a minor

      under age fourteen, as Class A felonies; count VII, child molesting of a minor

      under age fourteen, as a Class C felony; count VIII, sexual misconduct with a

      minor at least age fourteen but less than sixteen, as a Class B felony; and count

      IX, sexual misconduct with a minor at least age fourteen but less than sixteen,

      as a Class C felony.1 On April 25, the State also filed count X, alleging Hall is a




      1
        The precise charges were: count I, as a Class A felony, alleging Hall performed or submitted to sexual
      intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1,
      2006, and December 31, 2006; count II, as a Class A felony, alleging Hall performed or submitted to sexual
      intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1,
      2007, and December 31, 2007; count III, as a Class A felony, alleging Hall performed or submitted to sexual
      intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1,
      2008, and December 31, 2008; count IV, as a Class A felony, alleging Hall performed or submitted to sexual

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016           Page 2 of 13
      habitual offender pursuant to Indiana Code Section 35-50-2-8(a). During a jury

      trial on June 30 and July 1, 2015, the parties submitted evidence of the

      following facts.


[4]   B.B. was born on October 27, 1997. Her mother is J.B., and her father is Hall.

      B.B. had no contact with Hall until she was approximately seven years old.

      Prior to that time, she had lived both with her mother and in foster homes in

      Allen County. On October 9, 2005, when B.B. was living with her mother and

      her mother’s boyfriend, B.B.’s mother took her to the Fort Wayne Sexual

      Assault Treatment Center where B.B. was assessed due to her complaint that

      Hall had sexually abused her. The examination of B.B. was consistent with her

      complaint that she was sexually abused, and she was discharged into the care of

      the Indiana Department of Child Services (“DCS”).2 No evidence was

      presented as to what action DCS took regarding B.B.’s October 2005 allegation

      of sexual abuse.




      intercourse with B.(a minor under age fourteen) “sometime” during the period of time between January 1,
      2009, and December 31, 2009; count V, as a Class A felony, alleging Hall performed or submitted to sexual
      intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1,
      2010, and December 31, 2010; count VI, as a Class A felony, alleging Hall performed or submitted to sexual
      intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1,
      2011, and October 26, 2011; count VII, as a Class C felony, alleging Hall did perform or submit to fondling
      or touching with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1,
      2006, and October 26, 2011; count VIII, as a Class B felony, alleging Hall performed or submitted to sexual
      intercourse with B.B. (a minor at least age fourteen but under age sixteen) “sometime” during the period of
      time between October 27, 2011 and December 31, 2012; and count IX, as a Class C felony, alleging Hall did
      perform or submit to fondling or touching with B.B. (a minor at least age fourteen but under age sixteen)
      “sometime” during the period of time between October 27, 2011 and December 31, 2012. Amended App. of
      Appellant at 17-34.
      2
        At the time of the events in this case, DCS was named Child Protective Services (“CPS”), and that is the
      entity to which the record refers.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016            Page 3 of 13
[5]   In late 2005 or early 2006, DCS placed B.B. with Hall in Allen County. At

      trial, B.B. testified that Hall consistently had sexual intercourse with her and

      otherwise sexually abused her the entire time she had lived with him, which

      was until the end of 2012, except for a brief period of time when she was

      thirteen years old and placed in residential treatment. At the time of trial, B.B.

      was fifteen years old, and she testified that she knew what “sexual intercourse”

      meant. Tr. at 191-92. She testified that she had slept in Hall’s bed with him on

      a regular basis and that their relationship became one of husband and wife or

      boyfriend and girlfriend. B.B. testified that, when she was approximately

      eleven years old, Hall put her on birth control pills because he did not want her

      to get pregnant from having sex with him. Hall set an alarm clock for seven

      o’clock p.m. every day to remind B.B. to take the birth control pills. Hall

      enrolled B.B. in an on-line school rather than sending her to high school in the

      ninth grade. B.B. testified she did not tell DCS about the continuing sexual

      abuse because she had nowhere else to go; she did not want to go into foster

      care again, and she could not live with her mother due to her mother’s on-going

      inability to properly care for her.


[6]   The State also presented the testimony of K.C., B.B.’s half-sister, who testified

      that, when B.B. was eight years old, B.B. told K.C. that Hall was touching her

      in sexual ways and that, when B.B. was eleven years old, B.B. told K.C. that

      Hall was having sexual intercourse with her.


[7]   In August 2013, Hall was arrested on charges of sexual misconduct with a

      minor (other than B.B.), and he was incarcerated. After Hall was arrested, B.B.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016   Page 4 of 13
      was placed with her paternal grandmother. B.B. ran away from her

      grandmother’s house and then began living with her mother, J.B. B.B. told her

      mother about the years of sexual abuse by Hall and, on November 13, 2013,

      J.B. and B.B. reported the sexual abuse to the Fort Wayne Police Department.

      While Hall was incarcerated and before B.B. had reported his sexual abuse,

      Hall wrote B.B. letters in which he made the following statements: “do you

      want us to have the same relationship as before I came here? . . . I love you and

      need things to be as they were but if your [sic] out there giving kitty away then

      it’s over!,” State’s Ex.3; “don’t leave these letters around where people can read

      them,” Id.; “don’t have dudes in our house!,” Id.; “Please don’t be that type of

      girl that love [sic] me when I’m around and a wild flirty girl when I’m not,” id.;

      and “keep that thing tight for me,” id.


[8]   The jury returned verdicts of “not guilty” as to counts I through III, and

      “guilty” as to counts IV through IX. After Hall’s stipulation that he had also

      accumulated two prior felonies, the trial court found that he was a habitual

      offender. The court entered judgments of convictions as to counts IV through

      IX and, following a sentencing hearing, sentenced Hall to forty years for each of

      counts IV, V, and VI; four years for count VII; twenty years for count VIII; and

      four years for count IX. Counts VII and IX were concurrent with each other

      and with the previous counts. Count VIII was enhanced by thirty years due to

      Hall’s habitual offender status. Thus, the trial court imposed an aggregate

      sentence of 170 years. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016   Page 5 of 13
                                         Discussion and Decision
[9]    Initially, we note that the State has failed to file a timely appellee’s brief in this

       appeal, and, in a separate order, we have denied the State’s motion for an

       extension of time to file its brief.3 Therefore, the trial court’s decision may be

       reversed upon a showing of prima facie error. Ind. Appellate Rule 45(D); Trinity

       Homes, LLC v. Fang, 848 N.E.2d 1065 (Ind. 2006) (holding that, when the

       appellee has failed to submit a brief, the court on appeal need not undertake the

       burden of developing an argument on the appellee’s behalf; rather, the court on

       appeal will reverse the trial court’s judgment if the appellant’s brief presents a

       case of prima facie error).


                                    Issue One: Sufficiency of the Evidence

[10]   Hall maintains that the State failed to provide sufficient evidence to support his

       convictions. In reviewing a sufficiency of the evidence claim, we neither

       reweigh the evidence nor assess the credibility of the witnesses. See, e.g., Jackson

       v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative

       evidence and reasonable inferences therefrom that support the conviction,

       Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans. denied, and we

       “consider conflicting evidence most favorably to the trial court’s ruling,” Wright

       v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the probative evidence

       and reasonable inferences drawn from that evidence “could have allowed a



       3
          The State’s motion was denied because it did not present grounds sufficient to justify its delay in proper
       filing.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016                Page 6 of 13
       reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”

       Jackson, 925 N.E.2d at 375.


[11]   To prove Hall committed child molesting, as Class A felonies, and sexual

       misconduct with a minor, as a Class B felony, the State was required to prove

       that he had sexual intercourse with B.B. when she was a minor.4 Ind. Code §

       35-42-4-3(a)(1) and (b) (2012).5 Sexual intercourse is defined as “an act that

       includes any penetration of the female sex organ by the male sex organ.” I.C. §

       35-31.5-2-302. For purposes of a charge of child molesting or incest,

       penetration may be inferred from circumstantial evidence. Mastin v. State, 966

       N.E.2d 197, 202 (Ind. Ct. App. 2012), trans. denied. And the testimony of the

       victim alone may be sufficient to support a conviction of child molestation by

       sexual intercourse. See, e.g., Smith v. State, 779 N.E.2d 111 (Ind. Ct. App.

       2002), trans. denied.


[12]   To prove child molesting as a Class C felony and sexual misconduct with a

       minor as a Class C felony, the State was required to prove that Hall performed

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




       4
         The State must also show that B.B. was less than fourteen years old for Class A child molesting, and
       between fourteen and sixteen years old for Class C child molesting. However, B.B.’s date of birth is
       undisputed and shows that she was a minor child within those age ranges at all relevant times.
       5
         Hall’s convictions related to years 2009 through 2012, and the statute was materially the same in each of
       those years.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016             Page 7 of 13
       arouse or satisfy the sexual desires of either the child or the older person.” I.C.

       § 35-42-4-3(b); I.C. § 35-42-4-9(b).


[13]   Here, B.B., who was fifteen years old when she testified, stated that Hall had

       touched her in sexual ways, had oral sex with her, and had sexual intercourse

       with her on many occasions, and “at least once every year,” between 2005 and

       2012. She testified that she knew what “sexual intercourse” meant.6 Tr. at 189-

       92, 194, 196. She provided a detailed description of the first such incident, and

       she testified that many other such incidents occurred each year when she was

       living with Hall.7 B.B.’s testimony was corroborated by her sister’s testimony

       that B.B. had told her about the sexual abuse by Hall when B.B. was eight years

       old and the sexual intercourse with Hall when B.B. was eleven years old. B.B.’s

       testimony was also corroborated by the letters Hall wrote to her while he was

       imprisoned. This is sufficient evidence that Hall had sexual intercourse with his

       minor daughter, B.B., during the specified time periods. It is also sufficient

       evidence that Hall fondled or touched B.B. with the intent to satisfy his sexual




       6
         Hall claims B.B.’s testimony is not sufficient because she did not explain that sexual intercourse meant “her
       sex organ was penetrated by her father’s sex organ.” Amended Br. of Appellant at 16. However, a detailed
       anatomical description of penetration is not necessary to prove child molestation based on sexual intercourse.
       Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996).
       7
         Hall contends that B.B.’s testimony was “incredibly dubious” because she testified that Hall had sexual
       intercourse with her every day “over a seven year period.” Appellant’s Br. at 17. He also challenges his
       conviction for count VI on the grounds that B.B. was not living with him during much of that time period.
       However, B.B. testified that Hall had sexual intercourse with him “at least once a year” while she lived with
       him. Tr. at 195-96 (emphasis added). This, along with B.B.’s other testimony, is sufficient evidence of the
       crimes of which Hall was convicted—i.e., having sexual intercourse with and/or fondling B.B. “sometime”
       during each of the specified years and/or time periods. Amended App. of Appellant at 23-34.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016              Page 8 of 13
       desires during the specified time periods. The State presented sufficient

       evidence to support Hall’s convictions.


                                    Issue Two: Exclusion of Evidence

[14]   Hall contends that the trial court erred in excluding certain evidence. The

       admission or exclusion of evidence is a matter left to the sound discretion of the

       trial court, and we will reverse only upon an abuse of that discretion. Collins v.

       State, 835 N.E.2d 1010, 1016 (Ind. Ct. App. 2005), trans. denied. An abuse of

       discretion occurs where the decision is clearly against the logic and effect of the

       facts and circumstances. Id. To reverse a trial court’s decision to exclude

       evidence, there must be (1) error by the court, (2) that affects Defendant’s

       substantial rights, and (3) the defense must have made an offer of proof or the

       evidence must have been clear from the context. Stroud v. State, 809 N.E.2d

       274, 283 (Ind. 2004). However, “[t]rial court error in excluding evidence is

       harmless if the probable impact of the error on the jury, in light of all of the

       evidence, is sufficiently minor such that it does not affect the substantial rights

       of the parties.” Hauk v. State, 729 N.E.2d 994, 1002 (Ind. 2000).


[15]   Hall contends that the trial court erred in excluding evidence that B.B. had been

       gang raped by fellow students, which caused her to be terrified of going to

       school. He maintains that such evidence was necessary to show that he

       enrolled her in an on-line high school not to isolate her from others to make

       sexual abuse easier but because she did not want to go to school due to fear of

       the rapists. Hall also contends that evidence of the gang rape would provide

       some proof that he did not put B.B. on birth control because he was having
       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016   Page 9 of 13
       sexual intercourse with her but, rather, in anticipation of “the tragic event that

       the child would be victimized again.” Amended Br. of Appellant at 19.


[16]   However, even assuming for the sake of argument that the trial court erred in

       excluding this evidence, any such error was harmless in that it likely had a

       minimal impact on the jury given all the other evidence of Hall’s sexual abuse

       of B.B., including his own letters to her. Thus, even if the trial court erred in

       excluding evidence that B.B. had been gang raped by fellow students—and we

       do not hold that it did so err—any such error was harmless as its impact on the

       jury would have been so minor that it would not have affected Hall’s substantial

       rights. Hauk, 729 N.E.2d at 1002.


                              Issue Three: Inappropriateness of Sentence

[17]   Hall also contends that his sentence is inappropriate in light of the nature of the

       offenses and his character. Article 7, Sections 4 and 6 of the Indiana

       Constitution “authorize[] independent appellate review and revision of a

       sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

       Ct. App. 2007) (alteration original). This appellate authority is implemented

       through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

       7(B) requires the appellant to demonstrate that his sentence is inappropriate in

       light of the nature of his offenses and his character. See Ind. Appellate Rule

       7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

       the trial court’s recognition or non-recognition of aggravators and mitigators as

       an initial guide to determining whether the sentence imposed was

       inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016   Page 10 of 13
       However, “a defendant must persuade the appellate court that his or her

       sentence has met th[e] inappropriateness standard of review.” Roush, 875

       N.E.2d at 812 (alteration original).


[18]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

       (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed in

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[19]   Hall first contends that the nature of the offenses does not support an enhanced

       sentence. He admits, as certainly he must, that the crimes of which he was

       convicted are severe and “heinous.” Amended Br. of Appellant at 30. Yet he

       maintains that the imposition of an aggregate sentence of 170 years for his five

       felony convictions for sexually abusing his own daughter over a period of four

       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016   Page 11 of 13
       years is “vindictive.” Id. We disagree. The trial court found no mitigating

       factors, and it found as an aggravating factor the large number of repeated

       criminal sexual acts over an extensive period of time committed against his own

       child who “was totally at his mercy.” Sentencing Tr. at 28. Given that Hall

       repeatedly violated a position of trust with his biological daughter over a period

       of years, we cannot say that his sentence is inappropriate in light of the nature

       of his offenses.


[20]   Hall also maintains that the sentence is inappropriate in light of his character.

       He points to evidence that he is forty-five-years old with no history of juvenile

       delinquency. However, the trial court did not recognize that evidence as a

       mitigating circumstance. Rather, the trial court focused on Hall’s repeated

       betrayals of his daughter’s trust over a period of years, which is evidence of his

       poor character. Moreover, a criminal history as an adult is evidence of a

       person’s character, Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),

       trans. denied, and Hall’s criminal history is extensive. He has six prior

       misdemeanors and five prior felony convictions, one of which is a conviction of

       sexual misconduct with a minor other than B.B. Thus, we cannot say that his

       sentence is inappropriate in light of his character.


                                                Conclusion
[21]   The State has provided sufficient evidence to support Hall’s convictions; any

       error in the exclusion of evidence that B.B. was previously gang raped was

       harmless; and Hall has failed to persuade us that his sentence is inappropriate in

       light of the nature of his offenses and his character.
       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016   Page 12 of 13
[22]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016   Page 13 of 13
