MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                Sep 09 2016, 8:43 am
this Memorandum Decision shall not be
                                                                           CLERK
regarded as precedent or cited before any                              Indiana Supreme Court
                                                                          Court of Appeals
court except for the purpose of establishing                                and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                            Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Preston Smith,                                           September 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1601-CR-149
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jerome Frese,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1410-FB-76



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1601-CR-149 | September 9, 2016        Page 1 of 8
                                         Statement of the Case
[1]   Preston Smith (“Smith”) appeals his conviction, following a jury trial, for Class

      B felony sexual misconduct with a minor.1 On appeal, he argues that there was

      insufficient evidence to support his conviction and that we should reverse his

      conviction because his victim’s testimony at trial was incredibly dubious.

      Because we find that there was sufficient evidence to support his conviction and

      his victim’s testimony was not incredibly dubious, we affirm his conviction.


[2]   We affirm.


                                                       Issues
             Whether there was sufficient evidence to support Smith’s conviction.

                                                        Facts
[3]   In the spring of 2013, Malissa Wysocki (“Wysocki”) and her two children

      moved into an apartment with her boyfriend, Eugene Lamphier (“Lamphier”)

      and his daughter, K.L., in Walkerton, Indiana. Wysocki’s two children slept in

      the bigger of the apartment’s two bedrooms, while Wysocki and Lamphier slept

      in the living room. Fourteen-year-old K.L. slept by herself in the smaller of the

      apartment’s two bedrooms.




      1
       IND. CODE § 35-42-4-9. Notably, this statute was amended effective July 1, 2014, and Smith’s offense
      would now be considered a Level 4 felony. However, we will apply the statute in effect at the time of the
      offense.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1601-CR-149 | September 9, 2016           Page 2 of 8
[4]   In May 2013, K.L. met Wysocki’s younger brother, twenty-two-year-old Smith,

      who began to stay at their apartment periodically. He worked in Covington,

      Kentucky, during the summer of 2013, but he returned to Walkerton and stayed

      with Wysocki on some of the weekends that he did not work.


[5]   In June 2013, Smith was staying with Wysocki when Lamphier told him and

      K.L. to go to K.L.’s room and watch a movie so that he and Wysocki could get

      to sleep in the living room. However, when Smith and K.L. went to K.L.’s

      room, Smith asked her if she wanted to have sex, and she said that she did.

      They had sex that night and then continued to have sex multiple times

      throughout the summer. They never used condoms, and K.L.at one point

      began to suspect that she was pregnant because her period was two weeks late.

      Smith bought her a pregnancy test to check, and it turned out that she was not

      pregnant.


[6]   Throughout the summer, Smith and K.L. frequently sent each other cell phone

      texts and Facebook messages. K.L.’s sister, H.L., knew that K.L. and Smith

      were—per H.L.’s description—“boyfriend and girlfriend” because she would

      text Smith on K.L.’s behalf when K.L. was in the shower. (Tr. 165). K.L.

      would tell H.L. what to say, and H.L. would type the message. If Smith sent

      K.L. a message back, H.L. would then read the message to her.


[7]   In early August 2013, H.L. told their mother, Tearny Scribner (“Scribner”)

      about K.L. and Smith. Scribner confirmed H.L.’s story with K.L. and then

      took her to the Walkerton Police Station where police officers interviewed her.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1601-CR-149 | September 9, 2016   Page 3 of 8
[8]   Subsequently, the State charged Smith with Class B felony sexual misconduct

      with a minor. The trial court held a jury trial from November 30, 2015 through

      December 3, 2015. At trial, K.L. testified that she and Smith had not really

      “been boyfriend/girlfriend . . . [b]ut [] did have sexual relations.” (Tr. 58). She

      estimated that she and Smith had had sex “[m]ore than twenty times”

      throughout the course of the summer, although she could not remember many

      specific dates. (Tr. 59). The only date that she could remember was the Fourth

      of July, on which she testified that she had sex with Smith at his mother’s house

      while they were there celebrating the holiday.


[9]   Also during the trial, the State introduced records of cell phone texts and

      Facebook messages that they had recovered from K.L.’s phone and Facebook

      account. Both K.L. and Smith stipulated that they had written the messages.

      Among other relevant texts, Smith wrote in one message that he was going to

      miss K.L.’s kisses and that hers were the best because she had “the biggest

      puffiest softest warmest lovyest lips ever.” (State’s Ex. 1). Smith also told K.L.

      in that same exchange that she was “an outstanding lover.” (State’s Ex. 1). On

      July 22, 2013 Smith and K.L. exchanged the following texts:

              [K.L.:] Oh yeah & thanks for the hickeys on my boobs. []

              [Smith:] Woooh. I haven’t sucked on those sugar tits for awhile.
              . . . im not so sure those are from me

              [K.L.:] I bruise easy . . . & I havent done anything with anyone
              else.

              [Smith:] Lol. Then its probably from grabbing them while you
              gave me one of the best nights of my life. :P
      Court of Appeals of Indiana | Memorandum Decision 71A05-1601-CR-149 | September 9, 2016   Page 4 of 8
               [Smith:] I remember having them in my hands squeezing pretty
               rough

       (State’s Ex. 1) (incorrect spelling, grammar, and spacing in original). On July

       29, 2013, Smith sent K.L. a Facebook message stating “And was.it.just me but

       the other night was freakin amazing..i wish u coulda sat on it longer ..felt soo

       dep was it good . . be honest.” (State’s Ex. 2) (incorrect spelling, grammar, and

       spacing in original).


[10]   Last, Smith testified and denied having sex with K.L. He claimed that the texts

       and messages they had exchanged were “all fantasy” and that they had been

       “going back and forth with imagination sexting.” (Tr. 379).


[11]   However, at the conclusion of the trial, the jury found Smith guilty as charged.

       On January 4, 2016, the trial court held a sentencing hearing and sentenced

       Smith to sixteen (16) years with six (6) years suspended. Smith now appeals.


                                                   Decision
[12]   On appeal, Smith argues that there was not sufficient evidence to support his

       conviction. Specifically, he claims that, while K.L. testified that she had had

       “sex” with him or “sexual relations” with him, there was no evidence that he

       had physically penetrated her. In addition, he argues that K.L.’s testimony

       against him was not sufficient to support his conviction because it was

       incredibly dubious. We will address each of these arguments in turn.


[13]   When reviewing sufficiency of the evidence claims, we neither reweigh

       evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005

       Court of Appeals of Indiana | Memorandum Decision 71A05-1601-CR-149 | September 9, 2016   Page 5 of 8
       (Ind. 2009). “We consider only the evidence supporting the judgment and any

       reasonable inferences that can be drawn from such evidence.” Id. We will

       affirm if there is substantial evidence of probative value such that a reasonable

       trier of fact could have concluded the defendant was guilty beyond a reasonable

       doubt. Id.


[14]   In order to convict Smith of Class B felony sexual misconduct with a minor, the

       State was required to prove that he was at least twenty-one (21) years old and:

       “with a child at least fourteen (14) years of age but less than sixteen (16) years

       of age, perform[ed] or submit[ted] to sexual intercourse or deviate sexual

       conduct[.]” I.C. § 35-42-4-9 (2013). The Indiana Code defines “sexual

       intercourse” as “an act that includes any penetration of the female sex organ by

       the male sex organ.” I.C. § 35-31.5-2-302 (2013).


[15]   Smith argues that there was not sufficient evidence to support his conviction

       because there was no evidence that he “penetrated” K.L. We disagree. When

       K.L. testified at trial regarding the first time she had sex with Smith, she and the

       prosecutor engaged in the following exchange:

               [Prosecutor:] And so you went in your room at this apartment
               with Mr. Smith and you had sex?

               [K.L.:] Yes.

               [Prosecutor:] So we need to get a little technical here for a
               minute. When you’re talking about sex, are you talking about
               his penis in your vagina?

               [K.L.:] Yes.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1601-CR-149 | September 9, 2016   Page 6 of 8
               [Prosecutor:] And that was the first time that occurred?

               [K.L.:] Yes.

               [Prosecutor:] And did it ever occur after that?

               [K.L.:] Yes, it did.

       (Tr. 59). In this passage, K.L. explicitly stated that penetration occurred when

       she had sex with Smith. Any arguments to the contrary are a request for us to

       reweigh the evidence, which we will not do. See Bailey, 907 N.E.2d 1005.


[16]   Nevertheless, Smith argues that we should reverse his conviction because it was

       based on K.L.’s testimony, which he claims was incredibly dubious. Generally,

       as stated above, this Court will not judge witness credibility. See id. One

       exception to this rule is the “incredible dubiosity” rule, which our supreme

       court described in Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (emphasis

       added) as follows:


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this 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.

       Smith argues that K.L.’s testimony here was incredibly dubious for a variety of

       reasons, including that: (1) she originally reported to police officers that she

       had had sex with Smith only four or five times rather than the more than

       twenty times to which she testified at trial; (2) her living space was not
       Court of Appeals of Indiana | Memorandum Decision 71A05-1601-CR-149 | September 9, 2016   Page 7 of 8
       conducive to having sex multiple times without getting caught by her family; (3)

       other witnesses testified that she had not spent the night with Smith on the

       Fourth of July; and (4) Smith would not have been able to have sex with K.L.

       more than twenty times in July due to his work schedule in Kentucky.


[17]   We are not persuaded that the instant case is one of the “rare” situations that

       we should apply the incredible dubiosity rule because it is not a situation where

       there is a complete lack of circumstantial evidence. See id. K.L.’s sister testified

       that she knew K.L. and Smith were “boyfriend and girlfriend” because she

       would text Smith on K.L.’s behalf when K.L. was in the shower. (Tr. 165).

       Also, the texts and Facebook messages between K.L. and Smith that were

       admitted at trial concerned their sexual relationship and provided

       circumstantial evidence to support K.L.’s testimony. In light of this additional

       circumstantial evidence supporting K.L.’s testimony, we conclude that K.L.’s

       testimony was not incredibly dubious. As Smith does not otherwise challenge

       the evidence supporting his conviction, we conclude that there was sufficient

       evidence to support his conviction.


[18]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1601-CR-149 | September 9, 2016   Page 8 of 8
