MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          May 25 2017, 7:47 am

court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Genaro Garcia,                                          May 25, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        28A01-1604-CR-762
        v.                                              Appeal from the Greene Superior
                                                        Court
State of Indiana,                                       The Honorable Dena A. Martin,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        28D01-1508-F1-01




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017          Page 1 of 20
                                       Statement of the Case
[1]   Genaro Garcia (“Garcia”) appeals his conviction by jury of child molesting as a

      Level 1 felony1 as well as the forty-year sentence imposed thereon. He argues

      that: (1) the trial court abused its discretion when it granted the State’s Indiana

      Criminal Rule 4(D) motion to continue the trial; (2) the trial court abused its

      discretion in admitting evidence; (3) fundamental error occurred when the trial

      court admitted the victim’s testimony without determining whether she was a

      competent witness; (4) there is insufficient evidence to support his conviction;

      and (5) his sentence is inappropriate. Finding no error, we affirm Garcia’s

      conviction and sentence.


[2]   We affirm.


                                                    Issues
                 1.      Whether the trial court abused its discretion when it
                         granted the State’s Indiana Criminal Rule 4(D) motion to
                         continue the trial.

                 2.      Whether the trial court abused its discretion in admitting
                         evidence.

                 3.      Whether fundamental error occurred when the trial court
                         admitted the victim’s testimony without determining
                         whether she was a competent witness.




      1
          IND. CODE § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 2 of 20
              4.      Whether there is sufficient evidence to support Garcia’s
                      conviction.

              5.      Whether Garcia’s sentence is inappropriate.

                                                     Facts
[3]   The facts most favorable to the verdict reveal that in June 2015, Brandy Corlett,

      (“Mother”), drove her five-year-old daughter, E.T. (“E.T.”), and forty-five-year-

      old Garcia, a long-time family friend, from Spencer to Solsberry to visit family

      and friends. They stopped at the trailer where Mother’s sisters, Shelby

      (“Shelby”) and Sara (“Sara”) Newton (collectively “the Newtons”), lived with

      Sara’s boyfriend, Cameron Marling (“Marling”). An intoxicated Garcia was

      drinking from a half-gallon bottle of vodka. Shortly after arriving in Solsberry,

      Mother went out with Sara and left E.T. with Garcia at the Newtons’ trailer.

      Shelby took a nap, and Marling went to a back bedroom to watch television.


[4]   While Mother was out, Garcia decided to walk down the lane and visit some

      friends who lived in a nearby trailer. E.T. followed Garcia, and when they

      reached a tree-lined area, Garcia pulled E.T. to the side of the lane, sat her

      down, pushed her underwear to the side, and licked her vagina. Thereafter,

      E.T. followed Garcia to Garcia’s friend’s trailer. Garcia entered the trailer but

      made E.T. wait outside. E.T. subsequently ran back to the Newtons’ trailer.

      Alan Dixon (“Dixon”), who was sitting on his front porch, noticed a crying

      E.T. run by his trailer. Janice Corbin’s video camera on the exterior of her

      trailer also filmed E.T. running down the lane.




      Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 3 of 20
[5]   When she arrived at the Newtons’ trailer, E.T. “busted through the door . . .

      and was hysteric[al].” (Tr. 321). When Marling asked E.T. what was wrong,

      she responded that Garcia “licked her . . . and . . . grabbed her vagina area.”

      (Tr. 331). Marling, who went searching for Garcia and found him at the

      friend’s trailer, punched Garcia twice. Garcia asked “what was that for,” and

      Marling responded, “you know what that was for.” (Tr. 332). Garcia did not

      respond.


[6]   Marling called Mother to tell her what had happened, and Mother quickly

      returned to the Newtons’ trailer. As soon as Mother pulled up in front of the

      trailer, a crying E.T. ran out to the car. Mother went to look for Garcia and

      found him walking down the lane with a baseball bat. Mother jumped out of

      the car and told him that he was going to go to jail. After he told her that he

      had not done anything, Mother grabbed the baseball bat and began hitting him

      with it.


[7]   Green County Sheriff’s Department Deputy Brain Woodall (“Deputy

      Woodall”) was dispatched to the Newtons’ trailer, where he arrested an

      intoxicated Garcia. In the meantime, Mother drove E.T. to St. Vincent

      Hospital in Indianapolis. Sexual assault nurse examiner Megan Merriman,

      (“Nurse Merriman”), who has special training in assessing and examining child

      sexual abuse victims, met with E.T. Nurse Merriman discussed the sexual

      abuse with E.T. and explained that she was a nurse who was there to help E.T.

      The five-year-old girl told Nurse Merriman that she had taken a walk with

      Garcia, and he had told her “to show [her] pee pee and then he started licking

      Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 4 of 20
      [her] butt. [She] told him to stop it and he didn’t stop . . . .”2 (Tr. 412-13).

      Nurse Merriman also collected E.T.’s one-piece dress that snapped at the crotch

      and took swabs from her genitals. The genital swabs tested positive for

      amylase, which is found in saliva and other body fluids, and the crotch of the

      dress contained DNA that was consistent with Garcia’s DNA.


[8]   The State charged Garcia with Level 1 felony child molesting on August 3,

      2015, and on September 21, 2015, the trial court set Garcia’s jury trial for

      December 1, 2015. In October 2015, the State filed a motion for a continuance

      because Nurse Merriman, a critical State’s witness, was on maternity leave until

      the end of January 2016. The trial court granted the motion and scheduled the

      trial for February 9, 2016. Three days later, Garcia filed a motion for a speedy

      trial, which would have required the State to try him by January 4, 2016. The

      State responded with a Criminal Rule 4(D) motion asking the trial court to

      “reaffirm the February 9th trial date due to the State’s essential witness being

      unavailable for trial during the 70-day speedy trial window.” (App. 74). The

      trial court granted the State’s motion after a hearing.


[9]   Garcia’s trial began as scheduled on February 9, 2016. Before E.T. gave her

      substantive testimony at trial, the State asked her several questions to

      demonstrate her competency. Thereafter, E.T. testified that Garcia moved her

      underwear to the side and “licked her . . . private parts . . . .” (Tr. 252). Also at




      2
          E.T. referred to her vagina both as her “pee pee” and her “butt.” (Tr. 413).


      Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 5 of 20
       trial, Garcia made a hearsay objection to Marling’s testimony that E.T. had told

       him that Garcia had “licked her . . . and . . . grabbed her vagina area.” (Tr.

       331). Garcia also made a hearsay objection to Nurse Merriman’s testimony

       that E.T. had told her that Garcia had told E.T. to “show [her] pee pee and

       then he started licking [her] butt.” (Tr. 412).


[10]   Following a four-day trial, the jury convicted Garcia of child molesting as a

       Level 1 felony. Evidence presented at the sentencing hearing revealed that

       Garcia has an extensive legal history that spans four states and almost thirty

       years. He has six felony and eleven misdemeanor convictions and has been

       twice unsatisfactorily terminated from probation. In addition, he was on parole

       when he molested E.T. After hearing the evidence, the trial court found no

       mitigating factors and the following aggravating factors: (1) E.T.’s age; (2)

       Garcia’s position of trust with E.T.; (3) Garcia’s probation violations; and (4)

       the fact that Garcia was on parole when he molested E.T. The trial court

       sentenced Garcia to forty (40) years. Garcia now appeals his conviction and

       sentence. Our discussion of the issue includes additional facts.


                                                   Decision
       1. Speedy Trial

[11]   Garcia first argues that trial court abused its discretion when it granted the

       State’s Indiana Criminal Rule 4(D) motion to continue the jury trial. We

       disagree.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 6 of 20
[12]   When Garcia moved for a speedy trial, he invoked the procedures and

       deadlines of Criminal Rule 4(B)(1), which provides in relevant part as follows:


               [i]f any defendant held in jail on an indictment or affidavit shall
               move for an early trial, he shall be discharged if not brought to
               trial within seventy (70) calendar days from the date of such
               motion, except where a continuance within said period is had on
               his motion, or the delay is otherwise caused by his act, or where
               there was not sufficient time to try him during such seventy (70)
               calendar days because of the congestion of the court calendar.

[13]   The Indiana Supreme Court has noted that “[t]he purpose served by Crim. R.

       4(B) is to prevent a defendant from being detained in jail for more than 70 days

       after requesting an early trial.” Williams v. State, 631 N.E.2d 485, 486 (Ind.

       1994). However, Criminal Rule 4(D) provides for an extension of the seventy-

       day period. Wilhelmus v. State, 824 N.E.2d 405, 411 (Ind. Ct. App. 2005).

       Specifically,


               If when application is made for discharge of a defendant under
               this rule, the court be satisfied that there is evidence for the state,
               which cannot then be had, that reasonable effort has been made
               to procure the same and there is just ground to believe that such
               evidence can be had within ninety (90) days, the cause may be
               continued, and the prisoner remanded or admitted to bail, and if
               he be not brought to trial by the state within such additional
               ninety (90) days, he shall then be discharged.

       Ind.Crim. Rule 4(D). Moreover,


               [a]ny exigent circumstances may warrant a reasonable delay
               beyond the limitations of Crim. R. 4, due deference being given
               to the defendant’s speedy trial rights under the rule. The
               reasonableness of such delay must be judged in the context of the

       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 7 of 20
               particular case, and the decision of the trial court judge will not
               be disturbed except for an abuse of discretion. The purpose of
               Crim. R. 4(B) is to assure a speedy trial. This purpose is well
               served if the State must bring a defendant to trial within seventy
               days or show compelling reasons for the failure to do so. The
               rule was designed to assure criminal defendants speedy trials, not
               to provide them with a technical means of avoiding trial.

       Wilhelmus, 824 N.E.2d at 412 (quoting Smith v. State, 802 N.E.2d 948, 951 (Ind.

       Ct. App. 2004)).


[14]   Further, the absence of a key witness through no fault of the State is good cause

       for extending the time-period requirements for early trial. Id. at 413. “Rule

       4(D) does not mandate the evidence be essential or unique, only that it be

       unavailable and that the State be entitled to present it.” Smith v. State, 502

       N.E.2d 485, 488 (Ind. 1987). For example, in Sims v. State, 267 Ind. 215, 368

       N.E.2d 1352, 1354-55 (1977), the Indiana Supreme Court held that a key

       witness’s vacation abroad was sufficient justification for invoking the 90-day

       extension under Rule 4(D). Additionally, in Smith, 802 N.E.2d at 952, this

       Court held that the trial court had not abused its discretion when it granted the

       State’s motion to continue trial pursuant to Criminal Rule 4(D) where a key

       witness’s father had died and the funeral was scheduled for the day before trial.


[15]   Here, the State charged Garcia with Level 1 felony child molesting on August

       3, 2015, and on September 21, 2015, the trial court set Garcia’s jury trial for

       December 1, 2015. On October 22, 2015, the State filed a motion for a sixty-to

       ninety-day continuance. The State specifically explained that Nurse Merriman,

       a critical witness for the State, would be on maternity leave until the end of

       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 8 of 20
       January 2016. The trial court granted the State’s motion the following day and

       reset Garcia’s trial for February 9, 2016. Three days later, on October 26, 2015,

       Garcia filed a speedy trial motion pursuant to Indiana Rules of Criminal

       Procedure Rule 4.


[16]   The State responded that pursuant to Garcia’s motion, the trial would have to

       be held no later than the first week of January. However, the State further

       explained that it would be without Nurse Merriman, an essential witness, if the

       trial were held that week. The State asked the trial court to reaffirm the

       February 9 trial date pursuant to Criminal Rule 4(D) because Nurse Merriman

       was unavailable during the seventy-day speedy-trial window.


[17]   At a hearing on Garcia’s motion, the State explained that Nurse Merriman

       lived in Indianapolis and would have to travel a few hours to Green County to

       testify at Garcia’s trial. According to the State “a person on maternity leave

       that’s not working should [not] have to come to court to testify when we could

       do the whole thing a month later . . . .” (Tr. 16). Garcia’s counsel, on the other

       hand, argued that “if she’s had the child, and she may not be returned to work

       full time, but that doesn’t mean she can’t show up to testify one day for a

       couple of hours.” (Tr. 16). The trial court concluded that Nurse Merriman

       would have three hours just in travel time. Further, based on the trial court’s

       stressful personal experience of being required to attend a court proceeding

       within three weeks of giving birth to her child, the court found that Nurse

       Merriman was unavailable. The trial court therefore denied Garcia’s motion to



       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 9 of 20
       for a speedy trial and granted the State’s Rule 4(D) motion to continue the trial.

       The trial began on February 9, 2016.


[18]   Based upon these facts, the trial court did not abuse its discretion when it

       determined that Nurse Merriman, a key State’s witness who was on maternity

       leave and who would have been required to travel three hours to testify at

       Garcia’s trail, was unavailable. We further note that the State brought Garcia

       to trial just over thirty days – rather than the ninety days permitted by Criminal

       Rule 4(D) – beyond the seventy-day early trial date. Based on these facts, the

       trial court did not abuse its discretion in granting the State’s Rule 4(D) motion

       to continue the trial.


       2. Admission of Evidence


[19]   Garcia argues that the trial court abused its discretion in admitting evidence of

       E.T.’s statements to Marling and Nurse Merriman that Garcia had licked her

       vagina. Garcia specifically argues that “such evidence constituted inadmissible

       hearsay, as well as improper vouching evidence . . . .” (Garcia’s Br. at 33.) At

       the outset, we note that Garcia has waived appellate review of the vouching

       argument because he did not raise it or argue it at trial. See Konopasek v. State,

       946 N.E.2d 23, 27 (Ind. 2011) (explaining that an objection for one evidentiary

       ground does not preserve another evidentiary ground for appeal). Garcia’s only

       trial objection to the evidence about which he now complains was that the

       testimony from both witnesses was hearsay. (Tr. 324, 410). We now turn to

       the substance of Garcia’s claims.


       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 10 of 20
[20]   A trial court has broad discretion in ruling on the admissibility of evidence.

       Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). We review its rulings for an

       abuse of discretion, which occurs only if the decision was clearly against the

       logic and effect of the facts and circumstances. Id. Hearsay is an out-of-court

       statement offered to prove the truth of its contents. Ind. Evid. R. 801(c).

       Hearsay is generally inadmissible unless the statement falls within one of the

       established hearsay exceptions. Evid. R. 802. Evidence Rule 803 sets forth

       these exceptions.


[21]   Garcia first contends that Marling’s testimony that E.T. told him that Garcia

       had licked her vagina was inadmissible hearsay. The State responds that this

       testimony falls under the excited utterance exception to the hearsay rule. 3 For a

       hearsay statement to be admitted as an excited utterance, three elements must

       be shown: (1) a startling event occurs; (2) a statement is made by a declarant

       while under the stress of excitement caused by the event; and (3) the statement

       relates to the event. Evid. R. 803(2). Application of these criteria is not

       mechanical. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996). Rather, under

       Rule 803(2), the heart of the inquiry is whether the statement is inherently

       reliable because the declarant was under the stress of an event and unlikely to

       make deliberate falsifications. Id. The statement must be trustworthy under the




       3
         Although the trial court concluded that E.T.’s statement to Marling was not hearsay and was admissible as
       a prior consistent statement pursuant to Evidence Rule 801(d)(1), we can affirm a trial court’s hearsay ruling
       on any legal basis apparent in the record. Robinson v. State, 730 N.E.2d 185, 193 (Ind. Ct. App. 2000), trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017               Page 11 of 20
       facts of the particular case. Id. The trial court should focus on whether the

       statement was made while the declarant was under the influence of the

       excitement engendered by the startling event. Id.


[22]   Garcia argues that the “foundational requirements were not met here.”

       (Garcia’s Br. at 41). Specifically, Garcia contends that “the record does not

       support a finding that E.T. was under the stress of excitement caused by the

       molestation when she allegedly made the statements to [Marling].” (Garcia’s

       Br. at 41). Garcia further argues that E.T.’s “statements were in response to

       [Marling’s] questions – another factor supporting a finding that her statement

       was not an excited utterance.” (Garcia’s Br. at 42).


[23]   First, the greater the stress caused by a startling event, the longer the effects of

       the stress may last. Jones v. State, 800 N.E.2d 624, 629 (Ind. Ct. App. 2003).

       Here, the evidence shows that five-year-old E.T. was hysterical when she burst

       through the trailer door and immediately told Marling what had happened.

       This reaction suggests that she was not capable of thoughtful reflection and

       deliberation. See id. This evidence supports a reasonable conclusion that E.T.

       was still under the stress of excitement from the molestation.


[24]   Second, a declaration does not lack spontaneity simply because it is an answer

       to a question. Yamobi, 672 N.E.2d at 1346. Whether given in response to a

       question or not, the statement must be unrehearsed and made while still under

       the stress of excitement from the startling event. Id. Here, Marling asked E.T.

       what was wrong because she had “busted through the door . . . and was


       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 12 of 20
       hysteric[al].” (Tr. 321). He did not further question E.T. or otherwise suggest a

       particular answer. This evidence also supports a reasonable conclusion that

       E.T. was still under the stress of excitement from the molestation when she

       hysterically busted through the trailer’s front door. The trial court did not abuse

       its discretion in admitting Marling’s testimony.


[25]   Garcia further argues that the trial court erred in admitting Nurse Merriman’s

       testimony that E.T. told her that Garcia had licked her vagina. The State

       responds that this testimony falls within the hearsay exception for statements

       made for the purposes of medical diagnosis and treatment. See Evid. R. 803(4).

       The basis for this exception is that people seeking medical treatment have a

       strong incentive to tell the truth, and that therefore such statements are reliable.

       McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996). This exception encompasses

       statements made to non-physicians so long as the declarant makes the statement

       to advance a medical diagnosis or treatment. Id. In determining whether a

       statement is admissible pursuant to this rule, courts engage in a two-part test:

       “1) is the declarant motivated to provide truthful information in order to

       promote diagnosis and treatment; and 2) is the content of the statement such

       than an expert in the field would reasonably rely on it in rendering diagnosis or

       treatment.” Id.


[26]   Garcia challenges only the first prong of the test and claims that E.T.’s

       statements to Merriman do not fall within this exception to the hearsay rule

       because “E.T.’s motive in making the statements was not to promote diagnosis

       and treatment; it was to comply with the request of the adults investigating the

       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 13 of 20
       alleged molestation for purposes of prosecuting Garcia.” (Garcia’s Br. 43-44).

       We addressed this same argument in Cooper v. State, 714 N.E.2d 689 (Ind. Ct.

       App. 1999), trans denied. There, we concluded that because the child was told

       that she was in the emergency room to discuss and be treated for sexual abuse

       and understood the role of the nurse in this treatment, the first prong of the two-

       part test was met, and the nurse’s testimony was admissible under the medical

       diagnosis exception to hearsay. Id. at 693. Here, as in Cooper, Nurse

       Merriman, who has special training in assessing and examining child sexual

       abuse victims, discussed the sexual abuse with E.T. and explained that she was

       a nurse who was there to help E.T. As in Cooper, the first prong of the two-part

       test was met, and Nurse Merriman’s testimony was admissible under the

       medical diagnosis exception to hearsay. The trial court, therefore, did not

       abuse its discretion in admitting it.


       3. Competency

[27]   Garcia also argues that the trial court improperly admitted E.T.’s testimony

       without determining whether she was a competent witness. Because Garcia did

       not object to E.T.’s competency at trial, he has waived appellate review of this

       argument. See Kochersperger v. State, 725 N.E.2d 918, 922 (Ind. Ct. App. 2000)

       (explaining that a defendant’s failure to object to a child’s testimony at trial

       results in waiver of any question of the of the competency of the child as a

       witness).


[28]   In an attempt to avoid waiver, Garcia argues that the trial court committed

       fundamental error. This doctrine allows an appellate court to review an

       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 14 of 20
       unpreserved error. Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002). A

       fundamental error is a “substantial, blatant violation of basic principles of due

       process rendering the trial unfair to the defendant.” Carter v. State, 754 N.E.2d

       877, 881 (Ind. 2001). It applies only when the actual or potential harm cannot

       be denied. Id. The error must be “so prejudicial to the rights of a defendant as

       to make a fair trial impossible.” Id.


[29]   The trial court has discretion to determine if a child witness is competent based

       on the judge’s observation of the child’s demeanor and responses to questions

       posed by counsel and the court. Haycraft v. State, 760 N.E.2d 203, 209 (Ind. Ct.

       App. 2001). A trial court’s determination that a child is competent will only be

       reversed for an abuse of that discretion. A child’s competency to testify at trial

       is established by demonstrating that she: (1) understands the difference between

       telling a lie and telling the truth; (2) knows she is under a compulsion to tell the

       truth; and (3) knows what a true statement actually is. Kien v. State, 866 N.E.2d

       377, 385 (Ind. Ct. App. 2007), trans. denied. “‘To be qualified to testify, a child

       need not be a model witness, have an infallible memory, or refrain from making

       inconsistent statements.’” Id. (quoting Casselman v. State, 582 N.E.2d 432, 435

       (Ind. Ct. App. 1991)).


[30]   Here, our review of the evidence reveals that before E.T. gave her substantive

       testimony, the State asked her questions to demonstrate her competency.

       Specifically, the prosecutor asked E.T. the color of his shirt. E.T. responded

       that it was white. The prosecutor then asked E.T. if he were to tell her that it

       was an orange shirt, would that be the truth or a lie. E.T. responded that it

       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 15 of 20
       would be a lie. When the prosecutor asked her if he were to tell her that a

       certain piece of paper was yellow, would that be the truth or a lie, E.T.

       responded that it would be the truth. When the prosecutor asked E.T. if the

       trial judge had told her that she had to tell the truth, she responded that the

       judge had told her that and that she was going to tell the truth. E.T. then

       reaffirmed that she knew the difference between the truth and a lie.


[31]   E.T.’s competency was established when she demonstrated that she understood

       the difference between telling a lie and telling the truth, knew that she was

       under a compulsion to tell the truth, and knew what a true statement actually

       was. The State is correct that the “inconsistencies and memory lapses in E.T.’s

       testimony that Garcia highlights go ‘to her credibility, not to her competency.’”

       See Kien, 866 N.E.2d at 385. We find no error, fundamental or otherwise.


       4. Sufficiency of the Evidence

[32]   Garcia further argues that there is insufficient evidence to support his Level 1

       felony child molesting conviction. Our standard of review for sufficiency of the

       evidence claims is well-settled. We consider only the probative evidence and

       reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

       146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility.

       Id. We will affirm the conviction unless no reasonable fact finder could find the

       elements of the crime proven beyond a reasonable doubt. Id. The evidence is

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

       verdict. Id. at 147.



       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 16 of 20
[33]   To convict Garcia of Level 1 child molesting as charged, the State was required

       to prove beyond a reasonable doubt that Garcia, a person of at least twenty-one

       years of age, knowingly or intentionally performed other sexual conduct with

       E.T., a child under fourteen years of age. I.C. § 35-42-4-3. Other sexual

       conduct includes “an act involving . . . a sex organ of one (1) person and the

       mouth . . . of another person.” I.C. § 35-31.5-2-221.5.


[34]   At the outset, we note that E.T. testified that Garcia placed his mouth on her

       vagina. The testimony is sufficient to support Garcia’s conviction. See Hubbard

       v. State, 719 N.E.2d 1219, 1220 (Ind. 1999) (explaining that the testimony of the

       victim, who was the sole eyewitness, was sufficient to support defendant’s

       convictions). Garcia acknowledges this point, see (Garcia’s Br. 55), but he

       nevertheless argues that the incredible dubiosity rule dictates that his conviction

       must be reversed.


[35]   The incredible dubiosity rule provides that a court may impinge on the jury’s

       responsibility to judge witness credibility only when confronted with inherently

       improbable testimony or coerced, equivocal, wholly uncorroborated testimony

       of incredible dubiosity. Carter v. State, 31 N.E.3d 17, 30-31 (Ind. Ct. App.

       2015). 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. Id. Cases where we have found testimony

       to be inherently improbable have involved situations 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

       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 17 of 20
       about the act charged that her uncorroborated and coerced testimony “was

       riddled with doubt about its trustworthiness.” Watkins v. State, 571 N.E.2d

       1262, 1265 (Ind. Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624 (Ind.

       1991).


[36]   Our review of the evidence makes it clear that the incredible dubiosity rule

       simply does not apply in this case. First, to the extent that Garcia argues that

       E.T.’s testimony was inherently improbable, we agree with the State that “it is

       [unfortunately] not beyond belief that a man can take a five-year-old girl to

       some trees in the middle of the day to molest her.” (State’s Br. 32). Further, to

       the extent that Garcia argues that E.T.’s testimony was equivocal, we note that

       E.T. never wavered in her testimony that Garcia had licked her vagina. We

       further note that E.T.’s testimony was consistent with her reports of abuse to

       Marling and Nurse Merriman, and that DNA evidence also corroborated E.T.’s

       testimony.


[37]   The jury had the opportunity to hear E.T.’s testimony and to determine her

       credibility. We decline Garcia’s invitation to impinge on the province of the

       jury and reassess that credibility. The State presented sufficient evidence to

       convict Garcia of Level 1 felony child molesting.


       5. Inappropriate Sentence

[38]   Lastly, Garcia argues that his forty-year sentence is inappropriate. Indiana

       Appellate Rule 7(B) provides that we may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, we find that the


       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 18 of 20
       sentence is inappropriate in light of the nature of the offense and the character

       of the offender. The defendant bears the burden of persuading this Court that

       his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). Whether we regard a sentence as inappropriate turns on the “culpability

       of the defendant, the severity of the crime, the damage done to others, and

       myriad other factors that come to light in a given case.” Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008).


[39]   The Indiana Supreme Court has further explained that “[s]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Id. at 1222. “Such deference should prevail

       unless overcome by compelling evidence portraying in a positive light the

       nature of the offense (such as accompanied by restraint, regard, and lack of

       brutality) and the defendant’s character (such as substantial virtuous traits or

       persistent examples of good character.)” Stephenson v. State, 29 N.E.3d 111, 122

       (Ind. 2015).


[40]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       Here, Garcia was convicted of Level 1 child molesting. The sentencing range

       for a Level 1 felony child molesting conviction when the defendant is at least

       twenty-one years old and the victim is less than twelve years old is between

       twenty (20) and fifty (50) years, with an advisory sentence of thirty (30) years.

       See I.C. § 35-50-2-4(c)(1). Here, the trial court sentenced Garcia to forty (40)

       Court of Appeals of Indiana | Memorandum Decision 28A01-1604-CR-762 | May 25, 2017   Page 19 of 20
       years, which is ten (10) years less than the maximum sentence and ten (10)

       years more than the advisory sentence.


[41]   With regard to the nature of the offense, forty-six-year-old Garcia moved five-

       year-old E.T.’s underwear to the side and licked her vagina while she was in his

       care. With regard to the nature of Garcia’s character, he has a thirty-year

       criminal history that spans four states and includes eleven misdemeanor and six

       felony convictions. Garcia has twice been unsatisfactorily discharged from

       probation and was on parole at the time he molested E.T. His former contacts

       with the law have not caused him to reform himself. See Jenkins v. State, 909

       N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans. denied. As a result, Garcia has

       failed to persuade this Court that his forty-year sentence for his Level 1 felony

       child molesting conviction is inappropriate.


[42]   Affirmed.


       Baker, J., and Mathias, J., concur.




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