MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                 Mar 26 2018, 9:44 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
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Allen Shoaf,                                     March 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1707-CR-1728
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H. Busch,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79C01-1608-F1-12



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018             Page 1 of 9
                                       Statement of the Case
[1]   Michael Allen Shoaf appeals his two convictions for child molesting, as Level 1

      felonies, following a jury trial. He raises two issues for our review, which we

      restate as follows:


              1.      Whether the trial court committed fundamental error
                      when it determined that K.P. was competent to testify at
                      trial.

              2.      Whether application of the incredible dubiosity rule
                      establishes that there is insufficient evidence to support his
                      convictions.


[2]   We affirm.


                                 Facts and Procedural History
[3]   K.P. is the daughter of C.P. (“Father”) and S.H. (“Mother”). Father and

      Mother are no longer married, and Father got remarried to D.P. (“Stepmother).

      Father and Mother shared custody of K.P. On occasion, Father, Stepmother,

      K.P., and K.P.’s siblings would stay at the home of Shoaf, Father’s stepfather,

      and Leann, Father’s mother. During their stays, Father and Stepmother would

      sleep in a basement apartment. The children would sleep in bedrooms on the

      main floor of the house, which is also where Shoaf’s bedroom is located.


[4]   The family stayed at Shoaf’s residence for a few nights near the end of July

      2016, when K.P. was five years old. One night, Stepmother woke up and

      thought that she heard the children making noise upstairs, so she asked Father


      Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018   Page 2 of 9
      to go upstairs to check on the them. Once he was upstairs, Father went through

      Shoaf’s open bedroom door and saw Shoaf on top of K.P. Father got very

      angry and yelled for Shoaf to “[g]et off [K.P.]” Tr. Vol. II at 46. Father then

      went back downstairs, and Stepmother noticed that he was very angry. Father

      and Stepmother then went back upstairs, and Stepmother saw K.P. at the top of

      the stairs crying. Stepmother took K.P. out of the house, and they went to sit in

      their car. Sometime after they sat down in their car, K.P. and Stepmother saw

      Shoaf leave the house and get in his vehicle. When K.P. saw Shoaf outside of

      the house, she “flipped out and latched on to” Stepmother, and she “grabbed”

      and “hugged” Stepmother because she was scared. Tr. Vol. II at 104.


[5]   The weekend after the incident occurred, K.P. returned to Mother’s house.

      While K.P. was playing outside one day, Mother saw K.P. “pulling her pants

      down and pulling her shirt up to her brothers and sisters.” Id. at 89. Mother

      then asked K.P. if she had ever shown anyone her private areas or if anyone

      had touched her. K.P. told Mother that Shoaf had touched her. Mother made

      an appointment with K.P.’s pediatrician for the following Monday. A report

      was filed with Child Protective Services and the authorities were notified.

      Shortly after the appointment with the pediatrician, Mother took K.P. to the

      Indiana University Riley Pediatric Center of Hope (“PCOH”) for a medical

      evaluation based on the alleged sexual abuse.


[6]   At PCOH, Dr. Ralph Hicks examined K.P. Also present were several nurses, a

      social worker, a family case manager, and Detective Thad Miller with the

      Tippecanoe County Sherriff’s Department. During that appointment, K.P.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018   Page 3 of 9
      stated that Shoaf had “touched her privates.” Ex. at 7. On August 2, 2016,

      Investigator Dawn Gross with the Tippecanoe County Sheriff’s Department

      conducted a forensic interview of K.P. During the interview, K.P. stated that

      while Leann was asleep in the same room, Shoaf “put his weenie in her parts

      and wiggled. He put his weenie in my mouth and wiggled. Snot came out of

      his weenie into my mouth, which tasted gross[.]” Id. at 8. She also stated that

      it happened on more than one occasion. Investigator Gross also interviewed

      Stepmother and Father. Subsequently, Officer Gross obtained a search warrant

      for Shoaf’s house. When officers arrived at Shoaf’s house to execute the search

      warrant, officers arrested Shoaf and transported him to the Sheriff’s

      Department.


[7]   On August 9, the State charged Shoaf with two counts of child molesting, as

      Level 1 felonies. The trial court held a jury trial on May 9 and 10, 2017.1

      During the jury trial, K.P., who was then six years old, testified. After the State

      called K.P. as a witness, the trial court asked her if she promised to “tell the

      truth and only the truth and all of the truth[.]” Tr. Vol. II at 33. K.P.

      responded, “[u]h huh.” Id. When the State began to question K.P., the State

      asked her to clarify her response to the oath, to which K.P. responded, “Yes.”

      Id. at 34. The State then asked K.P. what it means to tell the truth. In

      response, K.P. stated that it “means you don’t get in trouble.” Id. Similarly,

      when the State asked what happens if someone does not tell the truth, K.P.



      1
          Father died on December 25, 2016, prior to Shoaf’s jury trial.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018   Page 4 of 9
      stated that “[y]ou get in trouble.” Id. Shoaf did not object to K.P.’s testimony

      on the grounds that she did not understand the oath.


[8]   During her testimony, K.P. testified that Shoaf put her on the floor of his

      bedroom while Leann was asleep in the bed and that he placed his “boy part”2

      in her mouth one time. Id. at 39. She further testified that “snot” came out of

      his “boy part,” that it tasted “bad” when it “went into [her] mouth,” and that

      she then spit it out. Id. at 41. She also testified that Shoaf put his “boy part” in

      between her legs where she “[g]o[es] potty,” which she said hurt her. Id. at 43.

      K.P. also testified that, at one point, Father came into the room, got really

      angry, and said, “[g]et off of [K.P.].” Id. at 46. At the end of K.P.’s testimony,

      the State asked her if anybody had told her what to say while she testified. K.P.

      indicated that her Mother and stepfather had told her “[t]o tell the truth.” Id. at

      53.


[9]   The jury found Shoaf guilty of both counts of child molestation, as Level 1

      felonies, and the trial court entered judgment of conviction accordingly. The

      trial court sentenced Shoaf to concurrent terms of twenty-four and one-half

      years to be fully executed in the Department of Correction. This appeal ensued.




      2
        The State used an anatomically correct drawing of a boy and asked K.P. to identify the body parts. K.P.
      referred to a penis as a “boy part.”

      Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018            Page 5 of 9
                                      Discussion and Decision
                               Issue One: K.P.’s Competency to Testify

[10]   Shoaf first asserts that the trial court erred when it permitted K.P. to testify

       without evidence that K.P. was a competent witness. A child is competent to

       testify at trial if it can be established that the child: “(1) understands the

       difference between telling a lie and telling the truth, (2) knows she is under a

       compulsion to tell the truth, and (3) knows what a true statement actually is.”

       Saylor v. State, 55 N.E.3d 354, 361 (Ind. Ct. App. 2016). The trial court has

       discretion to determine whether a child witness is competent based on the trial

       court’s observation of the child’s demeanor and responses to questions posed by

       counsel and the court. Id.


[11]   Shoaf acknowledges that he did not object to K.P.’s competency at trial. Thus,

       to prevail on appeal, he must establish that the trial court committed

       fundamental error when it permitted K.P. to testify. To prove fundamental

       error, Shoaf must “‘show that the trial court should have raised the issue sua

       sponte due to a blatant violation of basic and elementary principles, undeniable

       harm or potential for harm, and prejudice that makes a fair trial impossible.’”

       Taylor v. State, 86 N.E.3d 157, 162 (Ind. 2017) (quoting Harris v. State, 76

       N.E.3d 137, 140 (Ind. 2017)). “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.” Brewington v. State,

       7 N.E.3d 946, 974 (Ind. 2014) (quoting Whiting v. State, 969 N.E.2d 24, 34 (Ind.

       2012)) (omission original to Brewington).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018   Page 6 of 9
[12]   We cannot say that the trial court committed fundamental error when it

       permitted K.P. to testify. K.P. twice responded affirmatively when she was

       asked to tell the truth. K.P. then stated that to tell the truth “means you don’t

       get in trouble” and that, if you do not tell the truth, “[y]ou get in trouble.” Id.

       at 34. And K.P. indicated that no one told her what to say other than her

       mother and step-father telling her “[t]o tell the truth.” Id. at 53.


[13]   Further, K.P.’s “responses to questions posed” demonstrated a knowledge that

       most children her age do not have. Saylor, 55 N.E.3d at 361. And there is no

       reason in the record for this court to doubt the trial court’s ability to observe

       K.P.’s demeanor during her testimony. The record supports the conclusion that

       K.P. was a competent witness. Thus, we cannot say that the trial court erred

       when it did not act without being prompted by a timely objection. See

       Brewington, 7 N.E.3d at 974.3 There is no fundamental error here.


                                   Issue Two: Incredible Dubiosity Rule

[14]   Shoaf next contends that there is insufficient evidence to support his convictions

       for child molesting, as Level 1 felonies. Shoaf claims that there was insufficient

       evidence to support his convictions because his convictions were only based on

       K.P.’s testimony at trial, which he claims was incredibly dubious. Specifically,

       he asserts that “[i]t is certainly inherently improbable that Shoaf would have




       3
         Shoaf cites no authority that would require us to find that the trial court committed fundamental error
       when it did not sua sponte declare K.P. to be an incompetent witness based on the testimony she gave that
       indicates she was competent.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018             Page 7 of 9
       sexual intercourse with his six-year-old granddaughter—while his wife was

       asleep in the same room.” Appellant’s Br. at 19-20.


[15]   Under the incredible dubiosity rule, “a court will impinge on the jury’s

       responsibility to judge the credibility of witnesses only when it has confronted

       ‘inherently improbable’ testimony or coerced, equivocal, wholly

       uncorroborated testimony of ‘incredible dubiosity.’” Moore v. State, 27 N.E.3d

       749, 755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)).

       For the incredible dubiosity rule to apply, “the evidence presented must be so

       unbelievable, or improbable that no reasonable person could ever reach a guilty

       verdict based upon that evidence alone.” Wolf v. State, 76 N.E.3d 911, 916 (Ind.

       Ct. App. 2017). “Application of the incredible dubiosity rule is limited to cases

       with very specific circumstances because we are extremely hesitant to invade

       the province of the jury.” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015). 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, 27

       N.E.3d at 756.


[16]   The incredible dubiosity rule does not apply here because K.P. was not a sole

       testifying witness. Rather, Stepmother also testified and partially corroborrated

       K.P.’s testimony. Thus, Shoaf’s argument must fail. However, we also briefly

       note that K.P.’s testimony was not inherently contradictory. The inherent

       probability prong of the second factor is only satisfied “when the witness’s trial

       testimony was inconsistent within itself, not that it was inconsistent with other

       Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018   Page 8 of 9
       evidence or prior testimony.” Id. K.P.’s testimony varied only slightly from the

       statements she gave during her medical consultation at the Center of Hope.

       There was no material difference in her trial testimony. K.P. consistently

       testified that Shoaf placed his “boy part” in her mouth; that “snot” came out of

       his “boy part,” which tasted bad; and that she spit it out. Tr. Vol. II at 40. She

       also consistently testified that Shoaf placed his penis between her legs where she

       “go[es] potty” and that it hurt. Id. at 43. Shoaf’s arguments to the contrary

       merely seek to have this court reassess the weight and credibility of the

       evidence, which we will not do. We affirm his convictions.


[17]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1707-CR-1728 | March 26, 2018   Page 9 of 9
