MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                     May 14 2015, 8:32 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gary L. Griner                                           Gregory F. Zoeller
Mishawaka, Indiana                                       Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Timothy Lee Hyser,                                       May 14, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1410-CR-487
        v.                                               Appeal from the Elkhart Circuit
                                                         Court.
                                                         The Honorable Terry Shewmaker,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       Cause No. 20C01-1206-FA-32




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015      Page 1 of 10
[1]   Timothy Hyser appeals his convictions for class A felony Child Molesting1 and

      class C felony Child Molesting.2 Hyser argues that the trial court erred when it

      denied his request to inspect J.M.’s mental health records and that there was

      insufficient evidence to support the convictions. Finding no error, we affirm.


                                                    Facts
[2]   In 2011, Hyser lived next door to six-year-old J.M., his mother, Joni Miller,

      and her boyfriend, Mark Marner. Marner was a registered sex offender. Hyser

      and Marner became friends, and Miller and Marner often trusted Hyser to

      watch J.M. after school.


[3]   In early 2011, J.M. told Miller that Hyser had put his penis in J.M.’s mouth.

      However, Miller did not believe J.M. because he did not seem upset. Later in

      2011, J.M. told Miller that Hyser made him look at pictures of naked people.

      When Miller confronted Hyser, Hyser admitted that J.M. had found a

      pornographic magazine that Hyser kept under the couch. In December 2011,

      J.M. cried and told Miller that Hyser had again put his penis in J.M.’s mouth.

      Miller did not report these allegations to the police or to the Department of

      Child Services (DCS).


[4]   Hyser himself called DCS on December 27, 2011. He later spoke with a case

      worker and explained that there was a possibility that J.M. had been sexually



      1
          Ind. Code § 35-42-4-3(a)(1).
      2
          I.C. § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015   Page 2 of 10
      abused. He told the case worker that J.M. had recently accused him of some

      sexually inappropriate behavior including “oral sex” and “things being stuck in

      [J.M.’s] butt.” Tr. p. 234. He also told the case worker that he believed Marner

      beat J.M. and that he had seen Miller slap J.M. That same day, DCS contacted

      Miller and asked to interview J.M.


[5]   Forensic interviewer Anne Kobold interviewed J.M. In addition, DCS

      contacted the Elkhart Police Department, and Detective Charles Osterday

      investigated the case and attended the forensic interview. Detective Osterday

      watched the interview from a separate room, and learned that J.M. had been

      sexually abused by Hyser, not by Marner. After the interview, Detective

      Osterday spoke with Miller, and told her that J.M. had accused Hyser of sexual

      abuse, including fondling and oral and anal sex. Detective Osterday then

      interviewed Miller and Marner.


[6]   On January 6, 2012, Detective Osterday called Hyser and asked if he could

      come speak with Hyser at his home. Hyser agreed, and Detective Osterday

      conducted a recorded interview with Hyser. Hyser denied having oral sex with

      J.M. He also told the detective that he was fifty-three years old and gave him

      the names of individuals he stated would have information to help the detective

      in his investigation. Detective Osterday interviewed all but one of those

      individuals.


[7]   On June 13, 2012, the State charged Hyser with class A felony child molesting

      and class C felony child molesting. On November 28, 2012, a jury found Hyser


      Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015   Page 3 of 10
      guilty as charged. On December 7, 2012, the trial court sentenced Hyser to an

      aggregate term of thirty years. Hyser appealed, and, on October 17, 2013, this

      Court reversed Hyser’s convictions, finding that he had not been given a

      meaningful opportunity to present a complete defense. Hyser v. State, 996

      N.E.2d 443, 450 (Ind. Ct. App. 2013).


[8]   A second jury trial began on July 28, 2014. During the retrial, J.M. testified

      that Hyser made him do “inappropriate stuff” with Hyser’s penis, and testified

      that Hyser made him “wiggle it” and “suck it.” Tr. p. 200. He testified that

      Hyser made him make a “cupped hand motion around the penis up and down,”

      and “[o]ne time white stuff came out, and it was disgusting.” Id. at 301. J.M.

      also testified that once “that white stuff” came out of Hyser’s penis while it was

      in his mouth. Id. at 302. J.M. also testified that Hyser put his penis “up my

      bottom.” Id. at 303. J.M., who had not seen Hyser in three years, testified that

      he would be unlikely to recognize Hyser. While J.M. could not identify Hyser

      in open court, he did describe Hyser as he appeared at the time he lived next

      door to J.M., testifying that Hyser had a white beard, white curly hair, and

      glasses.


[9]   At one point during the cross-examination of Miller on retrial, defense counsel

      asked Miller if J.M. had spoken with a counselor at Oaklawn. The prosecutor

      objected, stating that any communication between J.M. and a counselor was

      confidential, that the information was irrelevant, and that Miller had no

      firsthand knowledge of any such communication, which would make the

      statements inadmissible on hearsay grounds. The trial court asked defense

      Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015   Page 4 of 10
       counsel for what purpose the evidence was being offered, at which point

       defense counsel requested an in camera inspection of J.M.’s counseling records

       because “there’s possibly some exculpatory information in that report.” Id. at

       117. The trial court sustained the State’s objection and did not conduct an in

       camera inspection.


[10]   On July 13, 2014, the jury found Hyser guilty as charged. On October 9, 2014,

       the trial court sentenced Hyser to thirty years on the class A felony child

       molesting conviction and to four years on the class C felony child molesting

       conviction. The sentences were ordered to be served concurrently. Hyser now

       appeals.


                                    Discussion and Decision
                                I. J.M.’s Counseling Records
[11]   Hyser first argues that the trial court erred when it did not inspect J.M.’s

       counseling records in camera. He also maintains that the State’s failure to

       provide him with the records violated Brady v. Maryland, 378 U.S. 83 (1963),

       because the records might have contained exculpatory evidence.


[12]   Hyser’s first contention is that the trial court was required to make an in camera

       inspection of J.M.’s counseling records. Hyser argues that the State should

       have allowed him to inspect the records, but does not argue or point us to any

       evidence to show that he ever made a formal discovery request for the

       documents from Oaklawn or the State. Rather, Hyser argues that the trial court

       should have allowed him to view the records in camera or should have
       Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015   Page 5 of 10
       inspected the record itself. However, we will not hold that the trial court erred

       in refusing to make an in camera inspection or refusing to allow Hyser to do so

       when it appears that Hyser did not avail himself of the discovery procedures

       available to him. Therefore, this argument fails.


[13]   Alternatively, Hyser contends that the State committed a Brady violation when

       it failed to provide him with J.M.’s counseling records. In Brady v. Maryland,

       the Supreme Court of the United States held that “the suppression by the

       prosecution of evidence favorable to an accused upon request violates due

       process where the evidence is material either to guilt or to punishment,

       irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.

       In order to prevail on a claim that the prosecution failed to disclose exculpatory

       evidence, a defendant must show that 1) the prosecution suppressed evidence,

       2) the evidence was favorable to the defense, and 3) the evidence was material

       to an issue at trial. Conner v. State, 711 N.E.2d 1238, 1245-46 (Ind. 1999). In

       addition, “[a] reviewing court will find that the prosecution should have

       disclosed evidence when ‘there is a reasonable probability that, had the

       evidence been disclosed to the defense, the result of the proceeding would have

       been different.’” Id. at 1246 (quoting U.S. v. Bagley, 473 N.E.2d 667, 680

       (1985)). The State will not be found to have suppressed material information if

       that information was available to a defendant through the exercise of

       reasonable diligence. Id.


[14]   Here, Hyser has entirely failed to show that J.M.’s counseling records were

       favorable to the defense. Hyser only states that the records would have shown

       Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015   Page 6 of 10
       that J.M. did not have a good relationship with Marner and that J.M. thought

       Marner was a “villain.” Appellant’s Br. p. 11. Even if we accept this as true, it

       does not establish that the records were exculpatory or favorable to the defense.

       We certainly cannot say, based on the above claim, that the result of the

       proceeding would have been different or that the records were material.

       Therefore, this argument must fail.


                               II. Sufficiency of the Evidence
[15]   Hyser also argues that there was insufficient evidence to support his

       convictions. When reviewing the sufficiency of the evidence supporting a

       conviction, we consider only the probative evidence and reasonable inferences

       supporting the trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). It is the fact-finder’s role, and not ours, to assess witness credibility and

       weigh the evidence to determine whether it is sufficient to support a conviction.

       Id. When we are confronted with conflicting evidence, we consider the

       evidence most favorable to the trial court’s ruling. Id. We will affirm a

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Id. Therefore, it is not necessary that the

       evidence overcome every reasonable hypothesis of innocence; rather, the

       evidence is sufficient if an inference reasonably may be drawn from it to support

       the trial court’s decision. Id. at 147.


[16]   To prove that Hyser was guilty of class A felony child molesting, the State was

       required to show that Hyser was at least twenty-one years of age, and that he


       Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015   Page 7 of 10
       knowingly or intentionally performed or submitted to sexual intercourse or

       deviate sexual conduct with a child under fourteen years of age. Ind. Code §

       35-42-4-3(a)(1).3 To prove that Hyser was guilty of class C felony child

       molesting, the State was required to show that he performed or submitted to

       any fondling or touching of a child with intent to arouse or to satisfy the sexual

       desires of himself or the the child. I.C. § 35-42-4-3(b).


[17]   Hyser first argues that there was insufficient evidence because J.M. was unable

       to identify him at trial. He states that there was never an in-person

       identification, nor was there evidence of a photographic identification presented

       to the jury. Hyser, however, points us to no legal authority that requires the

       victim in a child molesting case to identify a defendant in order for a jury to be

       able to find a defendant guilty. Here, when J.M. was asked whether he would

       be able to identify Hyser, he stated that it was unlikely. However, he was able

       to describe Hyser as he had looked when J.M had known him three years

       earlier. It is not unreasonable that a child of nine might not be able to identify a

       man he had known three years earlier, when he was six. This argument is

       merely a request to reweigh the evidence, a request we decline.


[18]   Hyser also maintains that testimony of both Miller and Marner was incredibly

       dubious. Under the “incredible dubiosity rule” we may “impinge on the jury’s

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



       3
         Indiana Code section 35-42-4-3 has been revised since the time that Hyser committed these offenses. We
       cite to the statue as it read at the time Hyser committed the offenses.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015             Page 8 of 10
       ‘inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony of incredible dubiosity.’” Rodgers v. State, 422 N.E.2d 1211, 1213

       (Ind. 1981). We will reverse a conviction if the sole witness presents inherently

       improbable testimony and there is no circumstantial evidence of the defendant’s

       guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind. 1999). Further, we will

       overturn a conviction based upon the incredible dubiosity rule when the

       testimony is so incredibly dubious or inherently improbable that it runs counter

       to human experience, and no reasonable person could believe it. Baumgartner v.

       State, 891 N.E.2d 1131, 1138 (Ind. Ct. App. 2008).


[19]   Here, we note that the incredible dubiousity rule applies when there is a “sole

       witness.” Rodgers, 422 N.E.2d at 1213. That is simply not true in the instant

       case, inasmuch as seven witnesses testified for the State at trial. Moreover,

       Hyser does not claim that J.M.’s testimony is incredibly dubious. Thus, the

       incredible dubiousity rule does not apply, and this argument must fail.


[20]   In the instant case, fifty-three-year-old Hyser was charged with molesting six-

       year-old J.M. J.M. testified that Hyser was his neighbor and described Hyser as

       he looked at the time of the molestations. He also testified that Hyster made

       him perform oral sex, made him do “inappropriate stuff” with Hyser’s penis,

       and made him “wiggle it” and “suck it.” Tr. p. 200. J.M. also testified that

       “that white stuff” came out of Hyser’s penis while it was in his mouth. Id. at

       302. Additionally, J.M. testified that Hyser made him make a “cupped hand

       motion around the penis up and down,” and “[o]ne time white stuff came out,

       and it was disgusting.” Id. at 301. In addition, J.M. testified that, on another

       Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015   Page 9 of 10
       occasion, Hyser put his penis “up my bottom.” Id. We note that a conviction

       for child molesting may rest solely upon the uncorroborated testimony of the

       victim. Link v. State, 648 N.E.2d 709, 713 (Ind. Ct. App. 1995). Here, the

       testimony of J.M. was sufficient to allow a reasonable jury to conclude that

       Hyser was guilty of class A felony child molesting and class C felony child

       molesting beyond a reasonable doubt.


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


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1410-CR-487 | May 14, 2015   Page 10 of 10
