MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                        Jan 22 2020, 6:18 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew R. Falk                                           Curtis T. Hill, Jr.
Hendricks County Public Defender’s                       Attorney General of Indiana
Office
                                                         John R. Millikan
Danville, Indiana                                        Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David P. Guerriero,                                      January 22, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1039
        v.                                               Appeal from the Hendricks Superior
                                                         Court
State of Indiana,                                        The Honorable Mark A. Smith,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D04-1708-F4-24



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020                Page 1 of 8
                                          Case Summary
[1]   David P. Guerriero (“Guerriero”) appeals his two convictions for child

      molesting, as Level 4 felonies,1 and his two convictions for sexual misconduct

      with a minor, as Level 4 felonies,2 following a jury trial. The only issue he

      raises on appeal is whether there was insufficient evidence to support his

      convictions due to the victim’s “incredibly dubious” testimony.


[2]   We affirm.



                                    Facts and Procedural History
[3]   Guerriero and Michael Hill (“Hill”) met in 1995 as cadets at West Point

      Military Academy in New York, where they were roommates for four years.

      Guerriero and Hill were both initially stationed at Fort Sill, Oklahoma before

      being assigned to different locations. Guerriero and Hill reunited in 2012 in

      Richmond, Virginia, where Guerriero moved in with Hill and Hill’s family.

      Hill’s family includes two minor children, M.H. and a younger daughter, and

      Hill’s wife, “Mary.” Guerriero and the Hill family moved to Indiana in 2013,

      and Guerriero, who stayed with the family periodically after the move, began

      living with the Hill family on a full-time basis around August of 2016.




      1
          Ind. Code § 35-42-4-3(b).
      2
          I.C. § 35-42-4-9(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020   Page 2 of 8
[4]   On August 2, 2017, the State charged Guerriero with Counts I and II, child

      molesting as Level 4 felonies, and Counts III and IV, sexual misconduct with a

      minor as Level 4 felonies. The victim was M.H. At Guerriero’s March 12 and

      13, 2019, jury trial, the following testimony and evidence was presented.


[5]   M.H.’s mother and father testified that Guerriero developed a relationship with

      M.H., who called him Uncle Dave. While living with the Hill family beginning

      in 2016, Guerriero had his own room in the basement, a key to the house, and

      knowledge of the garage door code. Guerriero was also left alone with M.H.

      “often” and watched the girls “[a]ll the time.” Tr. Vol. II at 238.


[6]   M.H. testified that Guerriero engaged in sexual conduct with her on four

      occasions between 2013 when the Hill family moved to Indiana and July 12,

      2017, when Guerriero moved out. The first instance of sexual conduct

      happened when M.H. was twelve years old. M.H. was startled awake in the

      middle of the night by Guerriero, who began touching her while she was in bed.

      M.H. stated that Guerriero touched “around my private parts and just rubbing

      like along my thighs and my stomach.” Tr. Vol. III at 13. Guerriero began

      rubbing M.H. on top of her clothes and then touched her underneath her

      clothes. M.H. stated that the touching “would vary from like my stomach and

      thighs to around my vagina above where you would put a tampon.” Id. at 14.

      M.H. pretended she was asleep because she was afraid and then eventually

      went to her mother’s bedroom and asked her mother if she could sleep with her.

      Mary told M.H. to return to her room. M.H. did not tell her mother about the



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020   Page 3 of 8
      assault at the time because she was afraid of how her mother would react and

      that she would doubt what M.H. was saying.


[7]   The second instance happened when M.H. was twelve or thirteen years old.

      Guerriero got in bed with M.H. again and started rubbing her under her clothes.

      M.H. stated that Guerriero “made me hold his penis and continued to just rub

      around my private parts and my stomach and thighs.” Id. at 15. The third

      instance happened after M.H. had turned fourteen years old when M.H. was on

      a couch in a downstairs living room. M.H. was sitting under a blanket on the

      couch while her family was outside, and Guerriero approached her and began

      rubbing her thighs. M.H. stated that Guerriero then sat on the ground and

      “started licking around my private parts ... under my clothing … right above

      where you would put a tampon.” Id. at 18-20.


[8]   The fourth instance happened after M.H. returned from church camp in mid-to-

      late June of 2017. The rest of the Hill family was not at home, and M.H. was

      sitting on a couch in an upstairs loft, where Guerriero approached her and

      began rubbing her thighs. M.H. stated that Guerriero “sat down on the ground

      and put my calves on his shoulders and pulled down my pants and started

      licking around my private parts again.” Id. at 21. Guerriero also touched M.H.

      on the stomach and breasts. The encounter lasted ten to fifteen minutes before

      M.H. got up to take a shower. Guerriero asked if he could take a shower with

      her, but M.H. went into the bathroom and locked the door. However, M.H.

      was still scared because there was a key to the bathroom above the doorframe.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020   Page 4 of 8
[9]    M.H. first told “one of [her] really good friends at the time” about the sexual

       assaults in a telephone conversation. Id. at 24. Although M.H. described her

       friendship with this friend as “toxic,” she also stated that they were “really good

       friends.” Id. at 26. Mary testified that Guerriero abruptly moved out of the

       house on July 12, 2017, after hearing M.H. read a book out loud to Mary about

       sex and dating. Mary and Hill testified that, after learning that Guerriero

       would be returning to the Hill home for a cookout, M.H. told her mother on

       July 29 about the sexual assaults. Mary and Hill contacted the police about the

       accusations on July 31, desiring to wait until Monday morning because they

       assumed that “the people who do this all the time are the people that are there

       Monday to Friday.” Tr. Vol. II at 247.


[10]   Detective Jesse Fulwider (“Det. Fulwider”) of the Hendricks County Sheriff’s

       Department also testified. He stated that, after Guerriero’s arrest on August 3,

       2017, Det. Fulwider obtained a search warrant and searched the short-term

       rental “facility” where Guerriero was staying. Tr. Vol. III at 59. During that

       search he recovered an Apple iPad from Guerriero’s bedroom. Detective

       Jeremy Chapman (“Det. Chapman”) of the Avon Police Department testified

       that he did a forensic download of the iPad and printed the downloaded

       content. Det. Fulwider testified that the printed download from the iPad was

       contained in State’s Exhibit 8, which was admitted over Guerriero’s objection.

       Exhibit 8 contained an article entitled “I Worked as a Lawyer on Child

       Molestation Cases and Just Because Woody Allen Wasn’t Prosecuted Doesn’t




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020   Page 5 of 8
       Necessarily Mean He’s Innocent” that had been saved as a bookmark on

       Guerriero’s iPad. Id. at 65.


[11]   On March 14, 2019, the jury found Guerriero guilty as charged. Following an

       April 9 sentencing hearing, the trial court imposed an eight-year sentence on

       Count I and a six-year sentence on Count II, to run concurrently; a six-year

       sentence on Count III, to run consecutively to Counts I and II, and a six-year

       sentence on Count IV, to run consecutively to Counts I, II, and III, with three

       years suspended to probation. This appeal ensued.



                                   Discussion and Decision
[12]   Guerriero contends that the evidence was insufficient to support his convictions

       because M.H.’s testimony was the only evidence of his guilt, and it was

       incredibly dubious.3 Our standard of review of the sufficiency of the evidence is

       well-settled:


               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh evidence nor
               judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
               (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




       3
         Guerriero does not challenge the sufficiency of the evidence on any grounds other than the alleged
       incredible dubiosity of M.H.’s testimony.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020                  Page 6 of 8
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

       Moreover, a conviction may be sustained on only the uncorroborated testimony

       of a single witness, even when that witness is the victim. Bailey v. State, 979

       N.E.2d 133, 135 (Ind. 2012).


[13]   Guerriero asserts that the rule of incredible dubiosity applies to the testimony of

       M.H. and renders the evidence as a whole insufficient to support his

       convictions. The rule of incredible dubiosity permits the appellate court to

       impinge upon the factfinder’s determination of credibility issues when it is

       confronted with inherently improbable, coerced, equivocal, or wholly

       uncorroborated testimony of incredible dubiosity. Moore v. State, 27 N.E.3d

       749, 755 (Ind. 2015). Application of the rule is “limited to cases with very

       specific circumstances because [the Court is] extremely hesitant to invade the

       province of the jury.” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015). The

       standard for invoking the incredible dubiosity rule is not an impossible burden

       to meet, but it is a difficult one, and testimony must be such that no reasonable

       person could believe it. Clark v. State, 62 N.E.3d 460, 462 (Ind. Ct. App. 2016).

       In order for the incredible dubiosity rule to apply, there must be (1) a sole

       testifying witness, (2) testimony that is inherently improbable, contradictory, or

       coerced, and (3) a complete absence of circumstantial evidence. Moore, 27

       N.E.3d at 756; cf. Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002) (finding the

       incredible dubiosity rule inapplicable even when there was a single eyewitness).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020   Page 7 of 8
[14]   M.H.’s testimony was not inherently improbable, contradictory, or coerced.

       “Cases where we have found testimony inherently improbable have involved

       situations either where the facts as alleged ‘could not have happened as

       described by the victim and be consistent with the laws of nature or human

       experience,’ or where the witness was so equivocal about the act charged that

       her uncorroborated and coerced testimony ‘was riddled with doubt about its

       trustworthiness.’” Carter v. State, 31 N.E.3d 17, 31 (Ind. Ct. App. 2015)

       (quoting Watkins v. State, 571 N.E.2d 1262, 1265 (Ind. Ct. App. 1991). M.H.’s

       testimony did not describe scenarios that were so inconsistent with human

       experience that they could not have happened as described, and her testimony

       was not equivocal. Furthermore, there was not a complete lack of

       circumstantial evidence in this case. M.H.’s parents testified that Guerriero had

       the opportunity and means to be alone with M.H. to commit the acts M.H.

       described, and the police found an article regarding child molestation cases

       saved on Guerriero’s iPad. That was circumstantial evidence of Guerriero’s

       guilt.


[15]   The evidence was sufficient to support Guerriero’s convictions.


[16]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020   Page 8 of 8
