MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 06 2019, 10:33 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
Stanley L. Campbell                                     Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Courtney Staton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cody A. Fyock,                                          November 6, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1006
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D05-1808-F3-50



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1006 | November 6, 2019               Page 1 of 6
[1]   Cody Fyock appeals his conviction for Level 3 Felony Attempted Rape, 1

      arguing that the evidence is insufficient to support the conviction. Finding the

      evidence sufficient, we affirm.


                                                    Facts
[2]   A.W. lives with John Hart, who is blind, in Monroeville. She helps him with

      his daily needs, and they have a father-daughter relationship.


[3]   On June 7, 2018, A.W. met up with a group of people, including Fyock, at a

      local bar. Over the course of the evening, A.W. drank multiple beers and

      multiple shots of liquor. A.W. drank until she became “severely intoxicated”

      and decided to walk home. Tr. Vol. II p. 42.


[4]   Hart’s residence is about two blocks away from the bar. A.W. does not

      remember walking home, but she does remember finding herself on Hart’s

      couch. Hart removed her shoes, covered her with a blanket, and returned to his

      room to watch television. Later, Hart heard the door open, and walked

      through the house, asking if anybody was there, but did not hear anything out

      of place. He attempted to talk to A.W., but she was passed out or asleep and

      did not respond.


[5]   A.W. awoke to find Fyock on top of her, with his penis inside her vagina. Her

      shorts had been removed and she was still wearing her shirt and bra. When she




      1
          Ind. Code §§ 35-41-5-1, 35-42-4-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1006 | November 6, 2019   Page 2 of 6
      realized what was happening, she began to cry and say no as she tried to push

      Fyock off of her. Meanwhile, Hart was in his bedroom and heard a slamming

      noise coming from the front of the house. He heard a man’s voice say, “Your

      p*ssy’s so tight. Wrap your legs around me. . . . Suck my d*ck.” Id. at 80-81.

      Hart heard A.W. respond by saying no and crying “[o]w, ow, ow” in pain. Id.

      at 81. Hart yelled, “I don’t know who the f*ck you are, I don’t care, you’re not

      gonna hurt her,” left his bedroom, and entered the living room. Id. As Hart

      approached the couch, Fyock said, “It’s Cody” and that he was just “fooling

      around” and “[w]hen she said no, I stopped.” Id. Hart told Fyock that he

      needed to leave his house and walked him to the door. A.W. got off the couch

      and ran to the bathroom, where she vomited and cried.


[6]   The next day, Hart called law enforcement. The responding officer took A.W.

      to a sexual assault treatment center, where she was treated by a sexual assault

      nurse examiner. A.W. had bruises, soreness, and vaginal pain. Later that day,

      Fyock communicated to A.W. that he was “so sorry about last night.” Id. at

      51.


[7]   On August 22, 2018, the State charged Fyock with two counts of Level 3 felony

      attempted rape, two counts of Level 6 felony sexual battery, and one count of

      Level 6 felony residential entry. On January 15, 2019, a jury trial was held, at

      the conclusion of which the jury found Fyock guilty as charged. On April 10,

      2019, the trial court entered judgment of conviction on one count of Level 3

      felony attempted rape and Level 6 felony residential entry; the remaining

      convictions were vacated on double jeopardy grounds. The trial court

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1006 | November 6, 2019   Page 3 of 6
      sentenced Fyock to an aggregate term of seventeen years imprisonment. Fyock

      now appeals.


                                      Discussion and Decision
[8]   Fyock’s sole argument on appeal is that the evidence does not support his

      conviction for Level 3 felony attempted rape. When reviewing the sufficiency

      of the evidence to support a conviction, we must consider only the probative

      evidence and reasonable inferences supporting the conviction and will neither

      assess witness credibility nor reweigh the evidence. Drane v. State, 867 N.E.2d

      144, 146 (Ind. 2007). We will affirm unless no reasonable factfinder could find

      the elements of the crime proved beyond a reasonable doubt. Id.


[9]   To convict Fyock of Level 3 felony attempted rape, the State was required to

      prove beyond a reasonable doubt that Fyock, acting knowingly or intentionally,

      engaged in conduct that constituted a substantial step toward causing A.W. to

      perform or submit to sexual intercourse when A.W. was unaware that the

      sexual intercourse was occurring. I.C. §§ 35-41-5-1, 35-42-4-1(a)(2).2 Fyock

      argues that there is insufficient evidence that A.W. was unaware that the



      2
        The State also charged Fyock with Level 3 felony attempted rape based on an allegation that he attempted
      to compel A.W. by force or imminent threat of force to have sexual intercourse. The jury found him guilty of
      this charge, but the trial court vacated it on double jeopardy grounds, allowing the other rape conviction to
      stand in its place.
      Even if we were to decide that there is insufficient evidence to support the rape conviction that was reduced
      to a judgment, the remedy would be to remand with instructions to reinstate the other rape conviction, for
      which there is sufficient evidence. See Appellant’s Br. 14 (conceding that “[i]t would be fair to argue that the
      state had met its burden of Attempted Rape . . . on a theory that A.W. was compelled by force” based on the
      amount of bruising observed by the nurse examiner as well as the evidence that A.W. tried to resist Fyock’s
      actions, telling him “no” repeatedly and crying out in pain).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1006 | November 6, 2019                     Page 4 of 6
       intercourse was occurring. This Court has held that in the context of the rape

       statute, “‘[u]naware is defined as ‘not aware: lacking knowledge or

       acquaintance; Unconscious.’” Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct.

       App. 2002) (citing Webster’s Third New Int’l Dictionary 2483 (1986 ed.)). The

       Glover Court elaborated that if someone has sexual intercourse with a person

       who is asleep, the act is rape because it occurred without the consent of the

       sleeping person. Id. at 1124; see also Becker v. State, 703 N.E.2d 696, 698 (Ind.

       Ct. App. 1998) (observing that “a person is unconscious during sleep”).


[10]   The record reveals that A.W. drank so much alcohol over the course of the

       evening that she became “severely intoxicated” and does not even remember

       the walk home. Tr. Vol. II p. 42. She remembers being on the couch in Hart’s

       home. After that, she fell asleep or passed out. At some point, Hart tried to

       talk with her, but she did not respond because she was asleep or unconscious.

       The next thing she remembers is awakening to find that her shorts had been

       removed and Fyock’s penis was in her vagina. The uncorroborated testimony

       of a sole witness can be sufficient to support a conviction, even when that

       witness is the victim. E.g., Dalton v. State, 56 N.E.3d 644, 648 (Ind. Ct. App.

       2016). Therefore, A.W.’s testimony, alone, is sufficient to support the

       conviction, but we note that her testimony was fully corroborated by Hart’s.


[11]   Based on A.W.’s testimony, a reasonable juror could have concluded that

       Fyock removed A.W.’s shorts, unfastened and pulled down his own pants, and

       placed his penis into her vagina while she was either asleep or unconscious.

       Fyock’s arguments to the contrary amount to a request that we reweigh the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1006 | November 6, 2019   Page 5 of 6
       evidence, which we may not do. The evidence is sufficient to support Fyock’s

       conviction for Level 3 felony attempted rape.


[12]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1006 | November 6, 2019   Page 6 of 6
