MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jan 15 2020, 9:22 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Justin R. Wall                                           Curtis T. Hill, Jr.
Huntington, Indiana                                      Attorney General of Indiana

                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven R. Collins,                                       January 15, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1852
        v.                                               Appeal from the Wabash Circuit
                                                         Court
State of Indiana,                                        The Honorable Robert R.
Appellee-Plaintiff                                       McCallen, III, Judge
                                                         Trial Court Cause No.
                                                         85C01-1803-F5-244



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1852 | January 15, 2020                Page 1 of 8
[1]   Steven Collins appeals from his conviction and sentence for Level 5 felony

      sexual misconduct with a minor. He contends both that the evidence was

      insufficient to support his conviction and that his sentence is inappropriate.


[2]   We affirm.


                                         Facts 1 & Procedural History


[3]   A.J. (Child) and Collins’s daughter S.C. became best friends in 2016 when they

      were in a seventh-grade play. Thereafter, they regularly spent the night at each

      other’s homes on the weekends. Child turned fourteen years old in November

      2017, before the events in question.


[4]   On the evening of Saturday, November 25, 2017, Child came to Collins’s home

      to spend the night with S.C. Child’s mother dropped her off around 11:00 p.m.,

      after Child attended a family celebration in a nearby town. S.C. and Collins

      were in the living room when she arrived, and Child sat down to watch

      television with them after taking her belongings to S.C.’s bedroom. The three

      “hung out and relaxed” for a couple hours. Transcript Vol. 2 at 156.


[5]   Around 1:30 a.m., S.C. got up and said she was going to make the bed in her

      room and charge her cell phone. Once S.C. left, Collins, who was thirty-seven

      years old, scooted closer to Child on the couch and asked her if she “wanted to




      1
        The Statement of Facts provided in Collins’s appellate brief is wholly inadequate, providing little to none of
      the facts relevant to the issues presented. Counsel is directed to review Indiana Appellate Rule 46(A)(6).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1852 | January 15, 2020                     Page 2 of 8
      do anything.” Id. at 158. Child was confused. He then took her right hand and

      placed it “on his crotch over his basketball shorts.” Id. at 159. Child could feel

      that S.C.’s penis was erect. Child then immediately got up and went into S.C.’s

      room, where she found S.C. on her phone lying in bed. Child lay down next to

      her, too scared to say anything to S.C. Child sent several text messages to her

      boyfriend, but he did not respond because he was likely asleep. She also

      unsuccessfully sent a message to a friend who lived across from S.C.


[6]   After several minutes of trying to reach others, Child told S.C. what had

      happened. S.C. responded that Collins “probably didn’t mean it” and that

      “probably wasn’t his intention.” Id. at 162. Child remained numb and in shock

      at that point and did not want to remain in the home, so she sent a text message

      to D.C., a boy she knew would be in the neighborhood that night. She asked

      D.C. to meet her “because something bad happened, and [her boyfriend] wasn’t

      responding, and [she] was freaking out.” Id. at 164. D.C. agreed to meet her at

      a nearby park.


[7]   In the meantime, Collins sent a text message to Child via Instagram. A

      screenshot of the text exchange indicates the following after Collins initiated

      contact with Child around 2:00 a.m.:


              Child:           What?

              Collins:         I have something to say

              Child:           What?

              Collins:         To your face


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1852 | January 15, 2020   Page 3 of 8
              Child:            I’m not getting up

              Collins:          Fine

              Child:            I’m not going out there

              Collins:          Ok

      Exhibit Index at 5. 2


[8]   Once D.C. indicated that he was leaving to meet her, Child quickly changed in

      the bedroom into long pajama pants and a sweatshirt because it was cold

      outside. She then she ran through the house and out the front door without

      stopping for her shoes. Collins was still in the living room on the couch, where

      he usually slept. Child ran down the street, and Collins chased after her,

      wearing only shorts and a t-shirt. When he caught up to Child, Collins grabbed

      onto her sweatshirt and started apologizing. Child convinced him that she was

      not going to run, so he let go of her and continued to walk alongside her,

      pleading: “Just come back to the house. I’m sorry I broke that trust. I didn’t

      mean to. Please just come back to the house.” Transcript Vol. 2 at 171.


[9]   Once Child saw D.C., she sprinted toward him and wrapped her arms around

      him. Child, seemingly terrified, stood behind D.C. as Collins approached and

      identified himself. D.C. asked what had happened, and Child whispered to him

      to just wait. Collins responded, “I don’t know what happened. Come on.

      Let’s just go back to the house.” Id. at 174. Collins then walked back to his



      2
       Later that morning, Collins blocked Child on Instagram, resulting in the messages being deleted. But Child
      had already taken a screen shot of the messages within minutes of them being sent.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1852 | January 15, 2020                Page 4 of 8
       house. Child stayed with D.C. and told him what had happened. D.C. gave

       Child his shoes, as she was barefoot, and he took her with him to his friend’s

       house. Child’s mother picked her up later that morning, and they went to the

       local sheriff’s office the next day to make a report.


[10]   On March 6, 2018, the State charged Collins with Level 5 felony sexual

       misconduct with a minor. Collins was convicted as charged following a two-

       day jury trial. On July 15, 2019, the trial court sentenced him to a term of three

       years with six months suspended to probation. Collins now appeals,

       challenging both his conviction and sentence. Additional information will be

       provided below as needed.


                                           Discussion & Decision


                                      1. Sufficiency of the Evidence


[11]   Recognizing that Child’s testimony, if believed, is sufficient to support his

       conviction, Collins argues that the incredible dubiosity rule applies here.


               The incredible dubiosity rule allows the court to impinge upon
               the [trier of fact’s] assessment of witness credibility when the
               testimony at trial is so contradictory that the verdict reached
               would be inherently improbable. For the incredible dubiosity
               rule to apply, the evidence presented must be so unbelievable,
               incredible, or improbable that no reasonable person could ever
               reach a guilty verdict based upon that evidence alone.


       Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). The witness’s testimony must be

       wholly uncorroborated. That is, we will only impinge on the jury’s duty to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1852 | January 15, 2020   Page 5 of 8
       judge witness credibility “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 appellant’s guilt.” Id. at 755 (emphases in

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


[12]   Here, Child’s testimony was unequivocal that Collins placed her hand on his

       clothed erect penis while the two were alone in the living room. In addition to

       Child’s unwavering testimony, S.C. and D.C. testified that Child made

       consistent allegations to each of them shortly after the incident. Moreover, the

       text exchange between Collins and Child, initiated by Collins within thirty

       minutes of the alleged misconduct, constitutes some evidence of his guilt, as

       does his action of chasing after her when she ran out the front door. As Collins

       followed her, pleading his case, Child sprinted barefoot in the darkness towards

       D.C., seeking protection from Collins. D.C. testified that Child “seemed

       terrified” as she ran in “a full out sprint” toward him. Transcript Vol. 2 at 214.

       In sum, Collins’s reliance on the incredible dubiosity rule is wholly misplaced,

       and the State presented ample evidence to support his conviction.


                                                   2. Sentence


[13]   Collins also challenges the sentence imposed by the trial court as inappropriate.

       We may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, we find the sentence inappropriate in light of the nature of

       the offense and the character of the offender. Ind. Appellate Rule 7(B).

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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1852 | January 15, 2020   Page 6 of 8
       sentence to the circumstances presented and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 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 culpability of the defendant, the severity

       of the crime, the damage done to others, and myriad other factors that come to

       light in a given case.” Id. at 1224. 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). The

       burden is on the defendant to persuade us his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[14]   For a Level 5 felony, Collins faced a sentencing range of one to six years, with

       the advisory sentence being three years. Ind. Code § 35-50-2-6(b). The trial

       court imposed the advisory sentence of three years and suspended six months of

       the sentence.


[15]   We cannot agree with Collins that his partially-suspended advisory sentence is

       inappropriate. The nature of the offense, as reflected in the sentence imposed,

       was not particularly egregious for a Level 5 felony sexual misconduct offense.

       Collins placed Child’s hand on his clothed, though erect, penis for a matter of

       seconds. He chose to do this, however, to his daughter’s best friend while his

       three children were in the same house, and he then chased after Child when she

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1852 | January 15, 2020   Page 7 of 8
       frantically ran from the house to the safe arms of D.C. The effects of the

       offense have been severe for Child, as she attempted suicide and had to

       withdraw from school. Further, with regard to his character, Collins has a

       criminal history consisting of five Class A misdemeanor convictions (one for

       check deception and four for driving while suspended) and has had probation

       revoked on one occasion.


[16]   The trial court found Collins’s criminal history only slightly aggravating and

       weighed it against the hardship incarceration would pose on his three

       dependent children. 3 The trial court also noted the effect the offense had on

       Child. Ultimately, the trial court imposed the three-year advisory sentence and

       suspended six months. Although Collins does not have a substance abuse

       problem, the trial court also ordered Recovery While Incarcerated for him so

       that Collins could obtain “a potential time-cut” upon completion. Transcript

       Vol. 3 at 140. The sentence crafted by the trial court was not inappropriate in

       light of the nature of the offense and Collins’s character.


[17]   Judgment affirmed.


       Robb, J. and Bradford, C.J., concur.




       3
         At the time of the offense, Collins was an unemployed widow living with his three minor children (then
       ages fourteen, twelve, and one and one-half years old) and his sister-in-law. His sister-in-law works outside
       the home and will continue to live with and provide for the two oldest children while Collins is incarcerated.
       The youngest child has been taken into custody by her mother, who is not the mother of the older children.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1852 | January 15, 2020                   Page 8 of 8
