MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                   Apr 20 2018, 11:02 am

court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Curtis T. Hill, Jr.
Ripstra Law Office                                       Attorney General of Indiana
Jasper, Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael A. Jackson, Jr.,                                 April 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A05-1711-CR-2728
        v.                                               Appeal from the Dubois Circuit
                                                         Court
State of Indiana,                                        The Honorable Nathan A.
Appellee-Plaintiff.                                      Verkamp, Judge
                                                         Trial Court Cause No.
                                                         19C01-1609-F1-793



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018                Page 1 of 12
                                        Statement of the Case
[1]   Michael A. Jackson, Jr. appeals his convictions for three counts of child

      molesting, one as a Level 1 felony, the second as a Level 4 felony, and the third

      as a Class C felony; two counts of criminal confinement, as Level 5 felonies;

      and criminal confinement, as a Class C felony, following a bench trial. He

      raises two issues for our review, which we restate as follows:


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

              2.       Whether his sentence for his conviction of child molesting,
                       as a Level 1 felony, is inappropriate in light of the nature
                       of the offense and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   A.J. (“Mother”) entered into a relationship with Jackson in 2008 and the two

      were married in 2013. Mother had two prior children, B.A. and C.Y.

      (“Brother”), who resided with Mother and Jackson. Mother and Jackson had

      one child together, Aa.A. (“Sister”). In early 2012, the family moved into a

      house on Villa Drive in Jasper. While they resided in that house, B.A. shared a

      room with Brother and Sister. At the end of the year, the family moved into a

      house on 14th Street, which was also in Jasper.


[4]   In August 2016, B.A., who was ten years old, called her father, A.A.

      (“Father”), and told him that Jackson “was touching [her] inappropriately.”

      Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018   Page 2 of 12
      Tr. Vol. II at 142. While she was on the phone with Father, B.A. got “very”

      upset. Id. at 58. After the call ended, Father called Mother to let her know

      what B.A. had told him. After Father spoke with Mother, Mother made an

      appointment for B.A. to see a social worker.


[5]   On September 1, Shannon Egg, a social worker, saw B.A. for “[a]nxiety related

      to sexual abuse.” Id. at 23. During the visit, B.A. disclosed to Egg that she had

      been sexually abused. Based on what Egg had learned from B.A., she filed a

      report with the Department of Child Services (“DCS”). That same day,

      Stephanie Gilmour, a DCS employee, went to the family’s home in order to

      investigate the suspected sexual abuse. After speaking with B.A., Gilmour

      decided that B.A. should not be in the same home as Jackson, and B.A. went to

      stay with her grandparents. Gilmour also scheduled a forensic interview for

      B.A., which Gilmour later observed. After the forensic interview, Gilmour

      substantiated B.A.’s claims and turned the case over to a caseworker.


[6]   Sergeant George Hettinger with the Jasper Police Department also went to the

      family’s home on September 1 in order to assist Gilmour. After he had arrived,

      Sergeant Hettinger observed Gilmour interview B.A. Thereafter, on September

      9, Sergeant Hettinger arrested Jackson. The State charged Jackson with child

      molesting, as a Class C felony (Count I); criminal confinement, as a Class C

      felony (Count II); child molesting, as a Level 4 felony (Count III); criminal




      Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018   Page 3 of 12
      confinement, as a Level 5 felony (Count IV); child molesting, as a Level 1

      felony (Count V); and criminal confinement, as a Level 5 felony (Count VI).1


[7]   Jackson waived his right to a jury trial, and the court held a bench trial on

      August 8, 2017. During the trial, B.A. testified that she got along well with

      Jackson at first, but that changed after “he started touching [her].” Id. at 131.

      She further testified that Jackson touched her “[w]here [she] use[s] the

      restroom.” Id. at 132. During her testimony, the following conversation

      occurred:


              [State]: What did he touch you with?


              [B.A.]: His hand.


              [State]: Okay. And what did he do with his hand?


              [B.A.]: Rubbed.


              [State]: He rubbed on what?


              [B.A.]: My private part.2




      1
        Counts I and II were based on allegations that Jackson had touched and confined B.A. between February
      1, 2012, and June 8, 2014. Counts III and IV were based on allegations that Jackson had touched and
      confined B.A. between July 1, 2014, and October 31, 2015. And Counts V and VI were based on allegations
      that Jackson had performed sexual conduct and confined B.A. between November 1, 2015, and August 31,
      2016.
      2
        The State used an anatomically correct drawing of a girl and asked B.A. to identify where Jackson touched
      her. B.A. circled the vagina, which she referred to as her “private part.” Id. at 133, Ex. at 8.

      Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018          Page 4 of 12
        [State]: Okay. And was he touching you under your clothes or
        over your clothes.


        [B.A.]: Both.


                                               * * *


        [State]: Did he touch you this way several times?


        [B.A.]: Yes.


        [State]: So sometimes he touched you under the clothes?


        [B.A.]: Yes.


        [State]: But sometimes over?


        [B.A.]: Yes.


        [State]: Okay. When he touched you under the clothes, how did
        that happen? Can you tell the judge exactly how he managed to
        touch you under your clothes?


        [B.A.]: He would pull my pants down.


        [State]: Okay. He would pull down your pants, and then what?


        [B.A.]: He would just start rubbing.


        [State]: And what would you do?



Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018   Page 5 of 12
                [B.A.]: Sometimes I had tried to get away.


                [State]: Okay. Were you able to get away?


                [B.A.]: No.


                [State]: What did he do to keep you from getting away?


                [B.A.]: He would grab my arm and push me back in the position
                I was in.


      Id. at 133-34.


[8]   B.A. testified that Jackson touched her for the first time when they lived on

      Villa Drive. B.A. further testified that she would sometimes watch television in

      Mother and Jackson’s room, and that Jackson would touch her while she was

      in their room watching television. B.A. testified that Jackson continued to

      touch her even after they moved to the house on 14th Street and that, one time,

      Jackson touched her in a way that was different from the other times. She

      stated that on one occasion, Jackson did more than touch the outside of her

      vagina, but that he “got underneath the lips”3 and was “[g]rabbing and

      rubbing.” Id. at 139. She further testified that Jackson kept her from getting

      away that time when he “grabbed [her] arm and then held [her] back.” Id.

      B.A. also testified that, one time while they lived in the house on 14th Street, he




      3
          B.A. used a diagram of female anatomy to determine where the touching had occurred.


      Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018     Page 6 of 12
       “asked [her] if it felt good.” Id. at 135. B.A. testified that Jackson told her not

       to talk to anyone about his actions because “it was [their] little secret.” Id. at

       145.


[9]    The State also presented the testimony of Egg, Gilmour, Father, Mother, and

       Brother at trial. Egg testified that B.A. had disclosed to her that B.A. had been

       sexually abused. Egg also testified that it is “pretty common” for children who

       have reported sexual abuse to have behavioral problems that include anxiety,

       fear, and depression and that their school work is usually affected. Id. at 21.

       She further testified that she is still seeing B.A.


[10]   Father testified that he had noticed that B.A. had been “lashing out” and that

       her grades, which had been decent during the prior school year, “were not very

       good” from August to December 2016. Id. at 62. And Mother testified that

       B.A. was “afraid” of Jackson. Id. at 85. Brother testified that B.A. would sleep

       in Jackson’s room occasionally. He testified that he did not think there was a

       problem with B.A. sleeping in Jackson’s room when she was younger, but that

       it bothered him later because, as he put it: “it just—it seemed different to me

       about how she was older, you know. She was—it just—I don’t know. It

       seemed different.” Id. at 101. Brother also testified that they would sometimes

       watch television in Mother and Jackson’s bedroom. Brother further testified

       that B.A. had told him that she had been a victim of sexual abuse and that B.A.

       would start crying when she told him about it. Jackson did not testify. At the

       end of the bench trial, the court took the matter under advisement.



       Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018   Page 7 of 12
[11]   On August 16, the trial court found Jackson guilty as charged on all six counts

       and entered judgment of conviction accordingly. At the sentencing hearing on

       September 19, the trial court did not identify any mitigating circumstances and

       sentenced Jackson to the advisory sentences for all six convictions, which

       included four years for Count I, four years for Count II, six years for Count III,

       three years for Count IV, thirty years for Count V, and three years for Count

       VI, to be served concurrently. This appeal ensued.


                                      Discussion and Decision
                                 Issue One: Sufficiency of the Evidence

[12]   Jackson first contends that there is insufficient evidence to support his

       convictions. Jackson claims that there was insufficient evidence to support his

       convictions because his convictions were only based on B.A.’s testimony at

       trial, which he claims was incredibly dubious. Specifically, he asserts that her

       testimony is incredibly dubious because “B.A. is not only imprecise in her

       memory concerning dates, in most instances she is years off in her account,

       and, as far as frequency, from a few times to every time they were alone.”

       Appellant’s Br. at 16.


[13]   For the incredible dubiosity rule to apply, there must be: “1) a sole testifying

       witness; 2) testimony that is inherently contradictory, equivocal, or the result of

       coercion, and 3) a complete absence of circumstantial evidence.” Moore v. State,

       27 N.E.3d 749, 756 (Ind. 2015). Here, B.A. was not the “sole testifying

       witness.” Id. Rather, Egg, Gilmour, Father, Mother, and Brother all testified


       Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018   Page 8 of 12
       and partially corroborated B.A.’s testimony. Further, B.A.’s testimony was

       corroborated by ample circumstantial evidence. As such, the incredible

       dubosity rule does not apply.


[14]   Nonetheless, Jackson also asserts that the State failed to present sufficient

       evidence because the State’s burden of proof at trial should have been “‘strict

       proof’ beyond a reasonable doubt.” Appellant’s Br. at 18. But Jackson offers

       no authority for such a standard. We hold that the State presented sufficient

       evidence to support Jackson’s convictions.


                                Issue Two: Inappropriateness of Sentence4

[15]   Jackson also contends that his sentence for child molesting, as a Level 1 felony,

       is inappropriate in light of the nature of the offense and his character. Indiana

       Appellate Rule 7(B) provides that “[t]he Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” This court has recently held that “[t]he

       advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839,




       4
         Jackson initially states that the trial court committed an “abuse of discretion” when it sentenced him
       because the “trial court, and its probation department, did not articulate any mitigating circumstances.”
       Appellant’s Br. at 19-20. However, Jackson’s actual argument is a challenge to “his sentence under Indiana
       Appellate Rule 7(B)[.]” Id. Therefore, we will only analyze whether his sentence is inappropriate in light of
       the nature of the offense and his character, and we will not consider whether the trial court abused its
       discretion.

       Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018             Page 9 of 12
       844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has recently

       explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[16]   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, 895 N.E.2d at 1222. 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 is 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).




       Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018   Page 10 of 12
[17]   Here, the trial court convicted Jackson of child molesting, as a Level 1 felony.5

       The sentencing range for child molesting, as a Level 1 felony, is twenty years to

       fifty years, with an advisory sentence of thirty years. Ind. Code. § 35-50-2-4(c)

       (2018). The trial court did not identify any mitigating circumstances. And,

       while the trial court did not specifically identify any aggravating circumstances,

       it stated that “the aggravators don’t, in my opinion, justify doing above the

       advisory sentence[.]” Tr. Vol. II at 201. Accordingly, the trial court sentenced

       Jackson to the advisory sentence of thirty years with the Department of

       Correction.


[18]   Jackson asserts that his thirty-year sentence is inappropriate in light of the

       nature of the offense because the aggravating circumstances “found by

       Probation are not significant, [are] contained within the charges themselves,

       and the ‘significant and greater’ harm to the victim is ameliorated by the

       number of serious felonies (six) with which Jackson is charged.” Appellant’s

       Br. at 22. Jackson also contends that his sentence is inappropriate in light of his

       character because he “he has a moderate risk assessment, his prior arrests were

       [from] 1994 and before, he is likely to positively respond to probation, he has

       never been incarcerated in the DOC, [and he] has exhibited good behavior in




       5
         Jackson does not specifically dispute his sentences for any of the other convictions. Rather, he only
       contends that he “should be sentenced to less than the 30-year advisory sentence on Count 5[.]” Appellant’s
       Br. at 24.

       Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018          Page 11 of 12
       jail[.]” Appellant’s Br. at 20. He further asserts “that a 30-year sentence for a

       51-year old man is unreasonable.” Id. at 22. We cannot agree.


[19]   Jackson was convicted on Count V for a Level 1 felony that was part of a

       pattern of conduct which occurred over time. Not only did Jackson assault

       B.A., but he resisted her efforts to escape from his grasp. Further, Jackson

       asked B.A. “if it felt good.” Id. at 135. Jackson also told B.A. to never talk

       about what happened because it was their “little secret.” Id. at 145. And,

       significantly, Jackson was B.A.’s stepfather. As such, Jackson abused his

       position of trust with B.A. Under these facts and circumstances, we cannot say

       that Jackson’s sentence is inappropriate in light of the nature of the offense or

       his character. Accordingly, we affirm his sentence.


[20]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A05-1711-CR-2728 | April 20, 2018   Page 12 of 12
