MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this                          Dec 18 2018, 10:11 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                         CLERK
                                                                       Indiana Supreme Court
purpose of establishing the defense of res judicata,                      Court of Appeals
                                                                            and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brandon E. Murphy                                        Curtis T. Hill, Jr.
Cannon Bruns & Murphy                                    Attorney General of Indiana
Muncie, Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

John David Cox, III,                                     December 18, 2018

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         18A-CR-1428
        v.                                               Appeal from the Blackford Circuit
                                                         Court
State of Indiana,                                        The Honorable Dean A. Young,
                                                         Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No. 05C01-1712-
                                                         F4-330




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018              Page 1 of 9
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, John Cox (Cox), appeals his conviction for child

      molesting, a Level 4 felony, Ind. Code § 35-42-4-3(b).


[2]   We affirm.


                                                   ISSUE
[3]   Cox presents one issue on appeal, which we restate as: Whether the State

      presented sufficient evidence beyond a reasonable doubt to support his child

      molesting conviction because the victim’s testimony was incredibly dubious.


                      FACTS AND PROCEDURAL HISTORY
[4]   In April 2015, Cox, R.C. (Mother), and Mother’s four children, including M.N.

      born in 2007, moved to a house on Walnut Street, in Hartford City, Indiana.

      Cox is not M.N.’s biological father. In 2017, M.N.’s family, as well as Cox,

      moved out of the Walnut Street house and moved into a two-story house on

      Elm Street in Hartford City, Indiana.


[5]   While residing in the Elm Street house, Cox molested M.N. twice, once in her

      bedroom and another time in the living room. During the bedroom incident,

      M.N. had been watching television with her brother until they fell asleep. M.N.

      was awakened by Cox, who pulled her short to the side, and then Cox put his

      finger inside her vagina. Cox stopped when he heard Mother calling him.

      During the second incident, M.N. was asleep on the couch in the living room.

      M.N. was awakened by Cox who was touching her vagina with his fingers and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018   Page 2 of 9
      licking her vagina with his mouth. Meaning to escape, M.N. made an excuse

      that she wanted to use the bathroom. Cox followed M.N. to the bathroom and

      ordered M.N. to “squat naked” over his cellphone so that he could take a video

      of her vagina. (Appellant’s App. Vol. II, p. 23). Cox explained that he was

      taking the video since he thought M.N. had “a bruise” in her vagina. (Tr. Vol.

      II, p. 145). Cox threatened to hurt M.N. if she reported his actions to anyone.


[6]   In August of 2017, M.N. disclosed the molestations to her aunt. M.N.’s aunt,

      in turn, contacted the police. On August 28, 2017, M.N. was interviewed at a

      Child Advocacy Center. During the interview, M.N. stated that she was eight-

      years-old when Cox molested her while she and her family were residing at the

      Walnut Street house. According to M.N., Cox molested her at least five times

      in the Walnut Street house. M.N. also alleged that she was about nine-years-

      old when Cox molested her on two occasions in the Elm Street house.


[7]   On December 4, 2017, the State filed an Information, charging Cox with eight

      Counts of child molesting, Level 4 felonies. On February 9, 2018, Cox filed a

      motion to dismiss some of the charges on the basis that they were duplicative.

      On March 12, 2018, the trial court conducted a hearing on Cox’s motion. The

      following day, the trial court issued an order denying Cox’s motion, but stated

      that it would reconsider its denial at the close of discovery. On April 2, 2018,

      following discovery, Cox moved the trial court to reconsider its denial on his

      motion to dismiss some of the duplicative charges. On May 2, 2018, after a

      hearing, the trial court granted Cox’s motion by dismissing “Counts 2, 3, 4, 5,



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018   Page 3 of 9
       7, and 8.” (Appellant’s App. Vol. II, p. 119). For purposes of trial, the court

       ordered that Count VI be renumbered as Count II.


[8]    On May 15, 2018, a jury trial was conducted. M.N. testified that while residing

       at the Elm Street house, Cox molested her once in the living room and once in

       her bedroom. At the close of the evidence, the jury acquitted Cox on Count I,

       but found him guilty on Count II. On June 11, 2018, the trial court conducted

       a sentencing hearing and then ordered Cox to serve a six-year term in the

       Department of Correction.


[9]    Cox now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Cox’s sole argument on appeal is that the evidence is insufficient to support his

       conviction. When reviewing a claim of insufficient evidence, it is well

       established that our court does not reweigh evidence or assess the credibility of

       witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we

       consider all of the evidence, and any reasonable inferences that may be drawn

       therefrom, in a light most favorable to the verdict. Id. We will uphold the

       conviction “‘if there is substantial evidence of probative value supporting each

       element of the crime from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813

       N.E.2d 1176, 1178 (Ind. 2004)).


[11]   To convict Cox of Level 4 felony child molesting conviction, the State was

       required to establish that he, “with a child under fourteen (14) years of age,
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018   Page 4 of 9
       perform[ed] or submit[ted] to any fondling or touching, of either [M.N. or

       himself], with intent to arouse or to satisfy the sexual desires of either [M.N. or

       himself.]” I.C. § 35-42-4-3(b). Cox does not argue that specific elements are

       unsupported by sufficient evidence; instead, he argues that the rule of incredible

       dubiosity renders the evidence insufficient as a whole.


[12]   In general, the uncorroborated testimony of the victim is sufficient to sustain a

       conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2002). We may make an

       exception, however, when that testimony is incredibly dubious. The incredible

       dubiosity rule allows the reviewing court to impinge upon the factfinder’s

       responsibility to judge the credibility of witnesses when confronted with

       evidence that is “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 rule is applied in limited

       circumstances, namely where there is “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.” Id. at 756. Application of the

       incredible dubiosity 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.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).

       “[W]hile incredible dubiosity provides a standard that is ‘not impossible’ to

       meet, it is a ‘difficult standard to meet, [and] one that requires great ambiguity

       and inconsistency in the evidence.’” Moore, 27 N.E.3d at 756 (quoting Edwards

       v. State, 753 N.E.2d 618, 622 (Ind. 2001)).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018   Page 5 of 9
[13]   M.N. and Mother were the only testifying witnesses for the State. Mother’s

       testimony related to how many children she had, and where she and Cox had

       resided during the existence of their relationship; but there was no inquiry as to

       the child molesting claims made against Cox. As such, Mother’s testimony

       would likely have been insufficient to find Cox guilty of the charged offenses.

       Thus, the State only had M.N.’s testimony, who was the sole witness to the

       child molesting incidents, to prove the elements of the crimes against Cox.

       With that said, we find that the first Moore factor is satisfied. Furthermore, we

       note the absence of circumstantial evidence to support Cox’s conviction and

       conclude that the third Moore factor is equally satisfied.


[14]   Nonetheless, Cox must show the remaining Moore factor, whether M.N.’s

       testimony was inherently contradictory, equivocal, or the result of coercion, is

       satisfied. See Moore, 27 N.E.3d at 758, (holding that each of the three factors

       must be shown in order to invoke the incredible dubiosity rule.) We note that

       there is no evidence—and Cox does not argue—that M.N.’s testimony was the

       result of coercion. Cox primarily directs us to purported inconsistencies

       between M.N.’s trial testimony and the statements she made before trial. For

       example, Cox notes that at trial, M.N. admitted that she had lied to law

       enforcement that Cox had covered her mouth and threatened her during the

       molestation incidents. Cox continues to argue that M.N.’s pretrial statements

       are littered with inconsistent accounts as to how many times Cox molested her,

       “about who was present during the events,” or “whether the events occurred in

       the fall or just before her tenth birthday.” (Appellant’s Br. p. 13).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018   Page 6 of 9
[15]   In the instant case, Cox was charged with two Level 4 felony child molesting

       offenses. In Count I, the State alleged, in part, that “between July 11, 2015 and

       July 11, 2016 . . . Cox did perform or submit to fondling or touching [] M.N, a

       child under the age of fourteen years, to wit: . . .with intent to arouse or satisfy

       sexual desires of the child or defendant.” (Appellant’s App. Vol. II, p. 224). As

       for Count II, the State claimed, in pertinent part, that “between July 11, 2016

       and January 31, 2017. . . Cox did perform or submit to fondling or touching []

       M.N, a child under the age of fourteen years, to wit: . . .with intent to arouse or

       satisfy sexual desires of the child or defendant.” (Appellant’s App. Vol. II, p.

       225). At trial, Mother testified that as of April 2015, she, Cox, and her

       children, including M.N., were living at the Walnut Street house. In January of

       2017, Mother’s family moved to the Elm Street house. It appears from the

       charging information, Count I related to the molestation that occurred at the

       Walnut Street house, and Count II related to the molestation allegations that

       occurred at the Elm Street house. The jury acquitted Cox on Count I but

       convicted him on Count II. See Hoover v. State, 918 N.E.2d 724, 730 (Ind. Ct.

       App. 2009) (holding that an acquittal on one count and a conviction on another

       count survives a claim of inconsistency if there is sufficient evidence to support

       the conviction), trans. denied.


[16]   At trial, M.N. unequivocally and consistently testified that when she was living

       in the Elm Street house, Cox molested her once in her bedroom and once in the

       living room. For the bedroom incident, M.N. was asleep, and she was

       awakened by Cox who pulled her shorts aside. Referring to her vagina as “hoo-


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018   Page 7 of 9
       hoo,” M.N. testified that Cox touched the “inside” of her vagina with his

       “fingers.” (Tr. Vol. II, p. 72). As for the living room incident, M.N. testified

       that Cox touched her “[h]oo-hoo inside” with “his hand and mouth.” (Tr. Vol.

       II, p. 73). M.N.’s clear, unequivocal testimony establishes the necessary

       elements of the charged offense. See Fajardo v. State, 859 N.E.2d 1201, 1209

       (Ind. 2007). (holding that despite the inconsistencies from an eleven-year-old

       witness, the child’s clear and unequivocal testimony established the necessary

       elements and the incredible dubiosity rule did not apply).


[17]   Although Cox focuses on differences between M.N.’s statements to the Child

       Advocacy Center and her deposition, M.N.’s trial testimony was not internally

       inconsistent or inherently contradictory regarding the elements of the crime

       alleged. We reiterate that the second prong is satisfied “only when the witness’s

       trial testimony was inconsistent within itself, not [when] it was inconsistent

       with other evidence or prior testimony.” Smith, 34 N.E.3d at 1221. In other

       words, discrepancies between a witness’ testimony and earlier statements do

       not render testimony incredibly dubious. Holeton v. State, 853 N.E.2d 539, 541-

       42 (Ind. Ct. App. 2006). M.N.’s testimony on the important facts regarding

       Cox’s molestation on Count II remained consistent. Accordingly, we conclude

       that M.N.’s testimony was not inherently improbable or contradictory, thus, the

       second Moore factor has not been established and we find that the incredible

       dubiosity rule does not apply.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018   Page 8 of 9
                                             CONCLUSION
[18]   For the reasons stated, we conclude that the incredible dubiosity rule does not

       apply, and M.N.’s testimony was sufficient to support Cox’s child molesting

       conviction. Therefore, we affirm.


[19]   Affirmed.


[20]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1428 | December 18, 2018   Page 9 of 9
