      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                 Jun 22 2020, 9:33 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                         CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
      estoppel, or the law of the case.                                              and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      – Appellate Division
                                                               Tina L. Mann
      Timothy J. O’Connor                                      Samantha M. Sumcad
      Indianapolis, Indiana                                    Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ken Gunn, Jr.,                                           June 22, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2346
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Lisa F. Borges,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               49G04-1810-F1-34611



      Mathias, Judge.


[1]   Following a jury trial in Marion Superior Court, Ken Gunn, Jr. (“Gunn”) was

      convicted of one count of Level 1 felony child molesting, one count of Level 1

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020                     Page 1 of 12
      felony attempted child molesting, five counts of Level 4 felony child molesting,

      and one count of Class A misdemeanor intimidation. The jury also found Gunn

      to be an habitual offender. The trial court sentenced Gunn to an aggregate term

      of ninety-two years of incarceration. Gunn appeals and presents two issues,

      which we restate as: (1) whether the State presented evidence sufficient to

      support Gunn’s conviction for Level 1 felony attempted child molestation, and

      (2) whether two of Gunn’s convictions for child molesting constitute double

      jeopardy. Concluding that the evidence is sufficient to support Gunn’s

      conviction for Level 1 felony attempted child molesting but that two of Gunn’s

      convictions constitute double jeopardy, we affirm in part, reverse in part, and

      remand.


                                 Facts and Procedural History
[2]   At the time relevant to this appeal, Gunn and his long-term girlfriend Ni.G.

      were living together in Marion County, Indiana with their biological children,

      K.G., N.G., and K.J.G. Gunn’s child with another woman, N.W., also lived

      with the family.


[3]   In September 2018, Gunn drove his thirteen-year-old daughter, K.G., and her

      younger siblings N.G. and K.J.G. to a local convenience store, where he got

      out of the car and spoke with a woman for some time. He then returned to the

      car and parked the car in a different part of the parking lot. When K.G.’s

      younger siblings fell asleep, Gunn pulled up his daughter’s shirt, reached into

      her bra, and touched her breast. K.G. smacked her father’s hand away. After

      this incident, Gunn drove the children back home.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020   Page 2 of 12
[4]   Later that same month, Gunn drove the same children to a video rental store to

      rent movies. Again, the younger children fell asleep in the car. When they did,

      Gunn put his hands inside K.G.’s pants and inserted his finger into her vagina.

      K.G. told him to stop because it was uncomfortable. Gunn stopped, became

      angry, and drove away. At around the same time that month, Gunn drove K.G.

      and her friend home from a softball game one evening. After dropping the

      friend off at her home, Gunn parked the car in a parking lot and again touched

      K.G.’s breasts. K.G. told Gunn that she did not like what he was doing, which

      again caused Gunn to become angry and drive away.


[5]   Sometime later in 2018, when Gunn was alone in the car with K.G., he

      exposed his penis to K.G. and told her to lick it. Tr. Vol. 2, p. 142. K.G.

      refused, causing Gunn to become angry. Gunn attempted to force K.G.’s head

      down toward his penis as she pushed him away. In early October 2018, Gunn

      volunteered to go to the store to get K.G.’s grandmother a drink. The children

      wanted candy and accompanied Gunn to the gas station convenience store.

      Again, when the younger children fell asleep, Gunn put his hands down K.G.’s

      pants and rubbed the outside of her genital area. K.G. wanted to tell her

      grandmother about Gunn’s actions but was afraid to do so because Gunn had

      warned her not to tell and had threatened to hurt K.G.’s grandmother if K.G.

      told anyone.


[6]   On the evening of October 3, 2018, K.G. went to the bedroom she shared with

      N.G. and got into the top bunk of the bunk bed. When K.G. got out of bed to

      use the restroom, Gunn was standing outside of the bathroom door. When

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020   Page 3 of 12
      K.G. came out of the bathroom, Gunn followed her back to the bedroom.

      Gunn stood on the bottom bunk while K.G. got into the top bunk. Gunn tried

      to grab K.G. while she attempted to pull away. Gunn put his hands inside of

      K.G.’s pants and inserted his finger into her vagina. K.G.’s mother, Ni.G., then

      came into the bedroom and saw Gunn’s hand moving toward K.G.’s pajama

      shorts. Ni.G. then pulled Gunn off the bed, struck him in the mouth, and asked

      if she was “touching on [her] daughter.” Tr. Vol. 2, p. 94.


[7]   Ni.G. noticed that K.G. had been crying and asked if Gunn had touched her.

      Gunn told K.G. to “shut the f**k up,” and warned her that she “better not say

      nothing.” Id. at 97, 130. K.G. admitted to her mother that Gunn had been

      touching her. Ni.G. told one of the other children to telephone the police. Gunn

      then pushed his way out of the bedroom, exited through the patio doors, and

      jumped off the second floor balcony and ran away.


[8]   On October 9, 2018, the State charged Gunn with two counts of Level 1 felony

      attempted child molesting, two counts of Level 1 felony child molesting, five

      counts of Level 4 felony child molesting, and one count of Class A

      misdemeanor intimidation. The State later added an allegation that Gunn was

      an habitual offender.


[9]   A jury trial was held on August 5–6, 2019. At the conclusion of the trial, the

      jury found Gunn guilty of one count of Level 1 felony attempted child

      molesting, one count of Level 1 felony child molesting, five counts of Level 4

      felony child molesting, and Class A misdemeanor intimidation. The jury also


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020   Page 4 of 12
       found that Gunn was an habitual offender. The trial court sentenced Gunn on

       September 30, 2019, to an aggregate term of ninety-two years of incarceration.

       Gunn now appeals.


                                         I. Sufficiency of the Evidence

[10]   Gunn first argues that the evidence was insufficient to support his conviction for

       Level 1 felony attempted child molesting. When addressing a claim of

       insufficient evidence, we neither reweigh the evidence nor judge the credibility

       of witnesses. McAllister v. State, 91 N.E.3d 554, 558 (Ind. 2018). We instead look

       only to the evidence most favorable to the verdict, along with all reasonable

       inferences to be drawn from that evidence. Id. If there is substantial evidence of

       probative value to support the verdict, and the evidence could have allowed a

       reasonable jury to find the defendant guilty beyond a reasonable doubt, we will

       not disturb the verdict. Barger v. State, 587 N.E.2d 1304, 1306 (Ind. 1992).


[11]   “A person who, with a child under fourteen (14) years of age, knowingly or

       intentionally performs or submits to sexual intercourse or other sexual conduct

       (as defined in IC 35-31.5-2-221.5) commits child molesting, a Level 3 felony.”

       Ind. Code § 35-42-4-3(a). The offense is elevated to a Level 1 felony if “it is

       committed by a person at least twenty-one (21) years of age[.]” Id. § 3(a)(1).

       “Other sexual conduct” is defined to include “an act involving . . . a sex organ

       of one (1) person and the mouth or anus of another person[.]” Ind. Code § 35-

       31.5-2-221.5(1). Furthermore, “A person attempts to commit a crime when,

       acting with the culpability required for commission of the crime, the person

       engages in conduct that constitutes a substantial step toward commission of the
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020   Page 5 of 12
       crime.” Ind. Code § 35-41-5-1(a). And “an attempt to commit a crime is a

       felony or misdemeanor of the same level or class as the crime attempted.” Id.


[12]   Thus, to convict Gunn of Level 1 felony attempted child molesting, the State

       was required to prove that Gunn, a person over the age of twenty-one,

       knowingly or intentionally took a substantial step toward performing or

       submitting to an act involving his sex organ and the mouth of K.G., a child

       under the age of fourteen. Here, K.G. testified that Gunn exposed his penis to

       her, told her to lick it, and attempted to push her head toward his penis when

       she refused. K.G.’s uncorroborated testimony is sufficient by itself to support

       Gunn’s conviction for Level 1 felony attempted child molesting. See Young v.

       State, 973 N.E.2d 1225, 1227 (Ind. Ct. App. 2012) (noting the longstanding rule

       that a conviction for child molesting may rest on the uncorroborated testimony

       of the victim) (citing Barger, 587 N.E.2d at 1308), trans. denied.


[13]   Nevertheless, Gunn insists that K.G.’s testimony regarding the incident that led

       to his conviction for Level 1 felony attempted child molesting cannot be

       believed because it was incredibly dubious. Under the “incredible dubiosity”

       rule, a reviewing court may “impinge on the jury’s responsibility to judge the

       credibility of the witness only when it has confronted ‘inherently improbable

       testimony or coerced, equivocal, wholly uncorroborated testimony of incredible

       dubiosity.’” Id. at 1226 (quoting Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind.

       1981)). Under this rule, we may reverse a conviction if a sole witness presents

       incredibly dubious or inherently improbable evidence such that no reasonable



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020   Page 6 of 12
       person could believe it and if there is a complete lack of circumstantial

       evidence. Id. (citing White v. State, 706 N.E.2d 1078, 1079–80 (Ind. 1999)).


[14]   Gunn notes that, with regard to the incident where her father attempted to force

       her head toward his penis, K.G. testified at a pre-trial deposition that she

       “d[id]n’t think so,” when asked if she had seen her father’s genitals. Tr. Vol. 2,

       p. 158. But at trial, K.G. testified that she had seen her father’s “nuts,” “dick,”

       or “thing.” Id. at 143–44. Gunn claims that these two versions of events are

       irreconcilable, and that, given the uncorroborated nature of K.G.’s testimony,

       renders her testimony incredibly dubious. We disagree.


[15]   “The fact that a witness gives trial testimony that contradicts earlier pre-trial

       statements does not necessarily render the trial testimony incredibly dubious.”

       Young, 973 N.E.2d at 1226–27 (citing Murray v. State, 761 N.E.2d 406, 409 (Ind.

       2002)). Moreover, there is nothing inherently improbable about K.G.’s

       testimony such that no reasonable person could believe it. In short, there is

       nothing incredibly dubious about K.G.’s testimony, and the jury could

       reasonably conclude that, based on her testimony, Gunn committed Level 1

       felony attempted child molesting.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020   Page 7 of 12
                                                 II. Double Jeopardy

[16]   Gunn next claims that his convictions on Counts VII and VIII, as amended at

       trial,1 constitute double jeopardy under the actual evidence test. Under the

       actual evidence test announced in Richardson v. State, 717 N.E.2d 32, 53 (Ind.

       1999), to establish a violation of the double jeopardy clause of the Indiana

       Constitution, a defendant must demonstrate a reasonable possibility that the

       evidentiary facts used by the jury to establish the essential elements of one

       offense may also have been used to establish all of the essential elements of a

       second challenged offense. Application of this test requires the court to identify

       the essential elements of each of the challenged crimes and to evaluate the

       evidence from the jury’s perspective. Singh v. State, 40 N.E.3d 981, 986 (Ind. Ct.

       App. 2015) (citing Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)), trans. denied.

       In determining whether two or more convictions constitute double jeopardy

       under the actual evidence test, we consider the essential elements of the

       offenses, the charging information, the jury instructions, the evidence, and the

       arguments of counsel. Id. The term “reasonable possibility” turns on a practical

       assessment of whether the jury may have latched on to exactly the same facts

       for both convictions. Id.


[17]   In the present case, amended Count VII alleged:




       1
         At trial, the State dismissed the original Count VI, causing original counts VII, VIII, IX, and X to be
       renumbered for the jury as VI, VII, VIII, and IX, respectively. The abstract of judgment, however, still refers
       to the counts according to their original numbering.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020                      Page 8 of 12
                On or about September 23, 2018, Ken Gunn, Jr., a person at least
                twenty-one (21) years of age, did perform other sexual conduct
                (as defined in Indiana Code Section 35-31.5-2-221.5) with
                [K.G.], a child under the age of fourteen years (14), to-wit, twelve
                (12) years old.


       Appellant’s App. p. 134. Amended Count VIII alleged that:


                On or about September 23, 2018, Ken Gunn, Jr., a person at least
                twenty-one (21) years of age, did perform fondling or touching
                with [K.G.], a child under the age of fourteen years (14), to-wit,
                twelve (12) years old, with the intent to arouse or satisfy the
                sexual desires of Ken Gunn, Jr., or [K.G.].


       Id.


[18]   The acts supporting both of the convictions under these counts occurred on the

       same date,2 and were based on the same incident where Gunn took the children

       to the video store. With regard to this incident, K.G. testified at trial as follows:


                A.       I was talking to a friend and then that’s when, I guess, she
                         might have [fell] asleep because she stopped texting back.
                         So that’s when he had put his hands in my pant[s] and he
                         started, like, messing with my vagina.

                Q.       And when you say messing with your vagina, can you
                         describe for the jurors what that means?




       2
        The charging information alleged that the acts in question occurred “on or about September 23, 2018.”
       Appellant’s App. p. 134. K.G.’s testimony, however, indicated that the incident occurred on September 26,
       2018. Tr. Vol. 2, pp. 135–36. Gunn raises no argument about this variance between the information and the
       proof adduced at trial. And it has long been held that time is not of the essence to a charge of child molesting.
       Gaby v. State, 949 N.E.2d 870, 876 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020                       Page 9 of 12
               A.       Uhm, he was messing with, like the inside of it.

               Q.       And when you say “messing with the inside of it,” what
                        parts on his body were connecting with what parts on your
                        body, if that question[] makes sense?

               A.       His finger.

               Q.       And his finger was where?

               A.       On my vagina.

               Q.       When you say on your vagina, what do you mean?

               A.       The inside.

               Q.       The inside?

               A.       Yeah.

               Q.       And when this was happening, do you remember anything
                        about — what did that — what did that — uhm, what did
                        that feel like? Do you remember anything about that?

               A.       Weird.


       Tr. pp. 136–37.


[19]   During the State’s closing argument, the prosecuting attorney attempted to

       distinguish the evidence supporting Count VII from that supporting Count VIII,

       stating to the jury:


               Count VII is the incident that I just described. The molest at the
               Family video. She said — K.G.’s testimony was, again, while it’s
               still dark, sitting out there in the parking lot, testimony was “for a
               long time,” the defendant starts messing round with her vagina. I
               had to ask her, K.G., what does that mean? What do you mean
               messing around with your vagina? You saw her demeanor. She’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020   Page 10 of 12
               talking about the incident and just as she gets close and having to
               talk about what she has to talk about, she gets quiet, a little more
               withdrawn, but she answers the question that she’s asked. “He
               put his finger in my vagina.” That is her testimony. She said she
               was on the phone texting a friend, she remembers everything that
               happened around it. Her friend must have fallen asleep because
               there was no more texting. And then, uh, she also said that her
               siblings were asleep in the backseat of the car. Count VIII. This
               is also for the Family Video. For what he was doing with her
               vagina, quite frankly, before he put his finger in it. Messing
               around with the vagina before the finger actually goes in.


       Tr. Vol. 2, p. 225 (emphasis added).


[20]   On appeal, the State similarly argues that the actual evidence supporting Count

       VII was K.G.’s testimony that Gunn inserted his finger into her vagina,

       whereas the evidence supporting Count VIII was K.G.’s testimony that Gunn

       “started . . . messing with my vagina.” Tr. Vol. 2, p. 136. Based on this

       evidence, and the prosecuting attorney’s argument distinguishing these acts, the

       State argues that the jury relied on evidence of penetration separate from the

       evidence of fondling to convict Gunn of Counts VII and VIII. We agree with

       Gunn.


[21]   K.G. did not testify that Gunn started “messing around” with her vagina, then

       separately inserted his finger into her vagina. Instead, she testified that Gunn

       started “messing around” with her vagina, and when asked what she meant by

       “messing with [her] vagina,” K.G. explained that Gunn was “messing with . . .

       the inside of it,” using his finger. Tr. pp. 136–37. In other words, K.G.’s

       testimony regarding the “messing around” and the digital penetration describe

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020   Page 11 of 12
       the very same act. We therefore conclude that there was a reasonable

       probability that the jury relied on the same actual evidence to support Gunn’s

       convictions on both Count VII and VIII. 3 To remedy this double-jeopardy

       violation, we reverse Gunn’s conviction on the lesser offense of Level 4 felony

       child molesting and remand with instructions that the trial court vacate the

       judgment of conviction and the sentence entered on this count.4


                                                  Conclusion
[22]   The State presented sufficient evidence to support Gunn’s conviction for Level

       1 felony attempted child molesting. However, we agree with Gunn that his

       convictions on amended Counts VII and VIII constitute double jeopardy. We

       therefore reverse his conviction on amended Count VIII and remand with

       instructions that the trial court vacate the judgment of conviction and the

       sentence entered on this count.


[23]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Tavitas, J., concur.




       3
         We also note that, under the series of rules of statutory construction and common law that are often
       described as “double jeopardy,” Gunn’s convictions on both Counts VII and VIII constitute, “[c]onviction
       and punishment for a crime which consists of the very same act as another crime for which the defendant has
       been convicted and punished.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson, 717
       N.E.2d at 56 (Sullivan, J., concurring)). That is, under either the common-law test, or the actual evidence
       test, Gunn’s convictions on both of these counts cannot stand.
       4
         The trial court ordered Gunn’s six-year sentence on amended Count VIII to be served concurrently with the
       thirty-year sentenced imposed on amended Count VII. Tr. Vol. 3, pp. 63–64. Thus, Gunn’s aggregate
       sentence should remain the same even after his sentence on amended Count VIII is vacated.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2346 | June 22, 2020                 Page 12 of 12
