MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                 Jul 03 2019, 7:09 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Justin R. Wall                                            Curtis T. Hill, Jr.
Wall Legal Services                                       Attorney General of Indiana
Huntington, Indiana                                       Marjorie Lawyer-Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shawn Lynn Sills,                                         July 3, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-285
        v.                                                Appeal from the Huntington
                                                          Circuit Court
State of Indiana,                                         The Honorable Davin G. Smith,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          35C01-1806-F3-120



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-285 | July 3, 2019                   Page 1 of 6
[1]   Shawn Lynn Sills appeals his conviction for sexual battery as a level 6 felony.

      He raises one issue which we restate as whether the evidence is sufficient to

      sustain the conviction. We affirm.


                                        Facts and Procedural History

[2]   On October 28, 2017, M.S. and her neighbor had alcoholic beverages at M.S.’s

      apartment, and the neighbor left the apartment about 10:30 p.m. At some

      point, Sills communicated with M.S., who was his brother’s granddaughter,

      through Facebook Messenger and asked if he could come to her apartment. 1

      After Sills arrived at her apartment and while they were at the kitchen table,

      Sills told M.S. that she looked like one of her aunts and that the aunt “used to

      let him ejaculate in her panties.” Transcript Volume IV at 128. This “made

      [M.S.] feel horrible inside,” and she asked Sills to leave. Id. at 129. Sills shoved

      M.S. into her bedroom, pushed her onto the bed so that she was on her back,

      took off her pants, and got on top of her. She pushed up on his chest but could

      not move him. He attempted to place his penis inside her and stated that she

      “was dry.” Id. at 129. She told him to stop numerous times. He placed his

      hand under her shirt and bra, touched her breasts, and kissed her mouth. Sills

      eventually stopped, used the bathroom, and left. M.S. contacted two friends

      using Facebook Messenger but they did not immediately respond.




      1
        M.S. testified that she believed he made the request at midnight or 1:00 a.m. and that she did not remember
      the exact time he arrived. On cross-examination, she testified that he arrived at her apartment between
      midnight and 1:00 a.m. and that he had asked to come over a little earlier in the night.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-285 | July 3, 2019                       Page 2 of 6
[3]   At approximately 8:00 a.m., M.S. saw her neighbor outside of her apartment

      window, approached him, and told him what had happened. According to the

      neighbor, M.S. “[d]idn’t look like the same young lady,” “was distraught, had

      mascara, looked like she had been crying,” “had her hands down like between

      her crotch,” appeared to be in pain, and “was kind of bent over a little bit.” Id.

      at 102-103. The neighbor took M.S. to the hospital where she spoke with

      medical personnel and a detective. A detective collected a pair of blue jeans, a

      vodka bottle, and patches of the mattress which appeared stained from M.S.’s

      apartment. M.S. was examined at a sexual assault treatment center, during

      which she “was anxious [and] shaking” and reported in part that there was

      “some fondling to her breasts.” Id. at 235. According to the sexual assault

      nurse examiner, the examination revealed “two small tears to her right, inner

      minora,” “some bruising to what we call the perihymenal area,” and “an

      abrasion to what we call the fascinovicularus.” Id. at 236-237. M.S. identified

      Sills as the person who caused her injuries. Subsequent testing determined that

      Sills was a likely contributor of DNA found on swabs taken from M.S.’s face,

      neck, and breasts.


[4]   On June 13, 2018, the State charged Sills with rape for causing M.S. to perform

      or submit to other sexual conduct as a level 3 felony and sexual battery as a

      level 6 felony, and it later alleged he was an habitual offender. In January 2019,

      the court held a jury trial at which the State presented the testimony of M.S.,

      her neighbor, the sexual assault nurse examiner, and a forensic biologist with

      the Indiana State Police Laboratory. M.S. testified in part that Sills “stuck his


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-285 | July 3, 2019   Page 3 of 6
      fingers inside [her].” Id. at 130. The jury found Sills not guilty of rape and

      guilty of sexual battery, the habitual offender allegation was dismissed, and the

      court sentenced him to two years and six months incarceration.


                                                   Discussion

[5]   Sills claims the evidence is insufficient to support his conviction. When

      reviewing claims of insufficiency of the evidence, we do not reweigh the

      evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

      817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

      inferences therefrom that support the verdict. Id. The conviction will be

      affirmed if there exists evidence of probative value from which a reasonable jury

      could find the defendant guilty beyond a reasonable doubt. Id.


[6]   Sills cites the incredible dubiosity rule and argues that, at trial, M.S. testified

      that her neighbor arrived between 5:00 and 6:00 p.m. and stayed for five to six

      hours, that her neighbor had provided the alcohol, that she saw a tattoo on

      Sills’s leg, and she could not remember if the light in her bedroom was on or off

      whereas, during her deposition, she testified that her neighbor arrived between

      6:00 and 7:00 p.m. and stayed for one hour, the alcohol belonged to her, she did

      not see any tattoos on his leg, and the light was on. He also argues that M.S.’s

      testimony was inconsistent with respect to the time he arrived at her apartment

      and she could not remember whether he touched one or both breasts or whether

      her shirt and bra stayed on during the attack. The State maintains the evidence

      is sufficient to sustain his conviction, M.S.’s testimony was not internally


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-285 | July 3, 2019   Page 4 of 6
      improbable, and evidence in addition to her testimony supports her account of

      the attack.


[7]   Ind. Code § 35-42-4-8 provides that a person who, with intent to arouse or

      satisfy the person’s own sexual desires or the sexual desires of another person,

      touches another person when that person is compelled to submit to the touching

      by force or the imminent threat of force commits sexual battery as a level 6

      felony. The incredible dubiosity rule applies only in very narrow

      circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is

      expressed as follows:

              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.

      Id. (citations omitted).


[8]   Sills fails to show that M.S.’s testimony was inherently contradictory or so

      inherently improbable that no reasonable person could believe it. The witnesses

      were thoroughly examined and cross-examined, and Sills’s defense counsel

      questioned M.S. regarding the timing of her visit with her neighbor and Sills’s

      arrival at her apartment, who provided the alcoholic beverages, and the extent

      to which she observed tattoos on Sills. Defense counsel was able to question

      M.S. regarding her recollection of the details of the assault and any

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-285 | July 3, 2019   Page 5 of 6
       discrepancies between her trial and deposition testimony. The jury found that

       Sills committed sexual battery and not rape. In addition to M.S.’s testimony,

       the State presented the testimony of M.S.’s neighbor, evidence regarding the

       examination at the sexual assault treatment center, and the testimony of a

       forensic biologist with the Indiana State Police Laboratory regarding her DNA

       findings, including her conclusion that Sills was a likely contributor of DNA

       found on swabs taken from M.S.’s breasts.


[9]    Based upon our review of the evidence as set forth above and in the record, we

       conclude that the State presented evidence of a probative nature from which the

       jury as trier of fact could find beyond a reasonable doubt that Sills committed

       sexual battery as a level 6 felony.


[10]   For the foregoing reasons, we affirm Sills’s conviction.


[11]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-285 | July 3, 2019   Page 6 of 6
