MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                                Nov 17 2017, 10:17 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                            CLERK
                                                                                 Indiana Supreme Court
court except for the purpose of establishing                                        Court of Appeals
                                                                                      and Tax Court

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                     Attorney General of Indiana
Madison, Indiana
                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Ronald E. Stewart,                                      November 17, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        78A01-1703-CR-509
        v.                                              Appeal from the Switzerland
                                                        Circuit Court
State of Indiana,                                       The Honorable Gregory Coy,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        78C01-1504-F4-115



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017       Page 1 of 13
                                             Case Summary
[1]   Ronald Stewart appeals his convictions and thirty-two-year sentence for two

      counts of Level 4 felony child molesting and the finding that he is a repeat

      sexual offender. We affirm in part, reverse in part, and remand.


                                                    Issues
[2]   The issues before us are:


              I.      whether there is sufficient evidence to sustain Stewart’s
                      convictions;


              II.     whether the trial court properly enhanced both of Stewart’s
                      sentences for child molesting based on the finding that he
                      is a repeat sexual offender; and


              III.    whether Stewart’s sentence is inappropriate.


                                                    Facts
[3]   Stewart was the boyfriend of Lori Pierce. Pierce often watched two girls, K.P.

      and K.O., at her one-bedroom apartment in Vevay while K.P.’s mother and

      K.O.’s father worked. K.P. is Pierce’s granddaughter, and K.O. is her step-

      granddaughter. Stewart frequently was at Pierce’s apartment when she would

      babysit. On April 1, 2015, K.P.’s mother brought her and K.O. to Pierce’s

      apartment as usual, and Stewart was there. On that date, K.P. was eleven years

      old and K.O. was eight. Pierce also was watching K.P.’s two younger brothers.




      Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 2 of 13
[4]   Pierce is a paraplegic. While Pierce was watching TV in her living room with

      K.P.’s brothers, K.P. and K.O. decided to go into the bedroom, where Stewart

      was on the bed watching TV. After they got on the bed with Stewart, he took

      turns giving them back rubs. K.P. later recalled that she had asked Stewart for

      a back rub, as he had given before, while K.O. recalled that Stewart offered

      them both back rubs and they agreed. While rubbing each girl’s back, Stewart

      also placed his hand inside their underwear and rubbed their buttocks; he also

      touched K.O.’s vagina through her underwear. K.P. got up and left the room

      after Stewart touched her and had attempted to lift up her shirt; K.O. stayed in

      or returned to the bedroom after Stewart stopped touching her, and he did not

      attempt to touch her again.


[5]   Shortly thereafter, K.P.’s mother came to pick the children up. After leaving

      the apartment, K.P. told her mother about Stewart touching her

      inappropriately. K.P.’s mother then asked K.O. if Stewart had touched her too,

      and she said yes. K.P.’s mother immediately reported what she had been told

      to the police. No police officers spoke with K.P. and K.O. However, a few

      days later, a forensic interviewer spoke with them at a child advocacy center,

      and they repeated their allegations against Stewart.


[6]   On April 10, 2015, the State charged Stewart with two counts of Level 4 felony

      child molesting. It later filed an allegation that Stewart was a repeat sexual




      Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 3 of 13
      offender, based on a 1995 Kentucky conviction for Class C felony sodomy. 1

      After a bifurcated jury trial held on January 11, 2017, Stewart was found guilty

      as charged and found to be a repeat sexual offender. At sentencing, the trial

      court found as mitigating circumstances Stewart’s poor health, the lack of

      physical harm to the victims, the lack of use of a weapon, and Stewart’s

      diagnosis with depression following his incarceration. As aggravators, the trial

      court noted Stewart’s prior sodomy conviction, a 2007 Kentucky Class D felony

      conviction for failing to register as a sex offender, Stewart’s having a position of

      care, custody, or control over the victims, the crimes being committed in the

      presence of other children under eighteen years old, and the victims being under

      twelve years of age. The trial court imposed sentences of ten years for each

      offense, enhanced both sentences by six years for the repeat sexual offender

      finding, and ordered the sentences to be served consecutively for an aggregate

      term of thirty-two years. Stewart now appeals.


                                                     Analysis
                                        I. Sufficiency of the Evidence

[7]   Stewart first challenges the sufficiency of the evidence supporting his

      convictions for Level 4 felony child molesting. When analyzing a claim of

      insufficient evidence to support a conviction, we must consider only the

      probative evidence and reasonable inferences supporting the verdict. Sallee v.




      1
       Stewart had pled guilty to this charge, which alleged that he committed deviate sexual intercourse with a
      child under fourteen years old, and received a ten-year sentence.

      Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017          Page 4 of 13
      State, 51 N.E.3d 130, 133 (Ind. 2016). “It is the fact-finder’s role, not that of

      appellate courts, to assess witness credibility and weigh the evidence to

      determine whether it is sufficient to support a conviction.” Id. The evidence

      does not have to overcome every reasonable hypothesis of innocence, and it is

      sufficient if an inference may reasonably be drawn to support the verdict. Id.


[8]   Stewart specifically claims that K.O.’s and K.P.’s testimony describing their

      molestation was incredibly dubious. The incredible dubiosity rule allows an

      appellate court to impinge upon the fact-finder’s responsibility to judge witness

      credibility only in the narrow circumstance where there is inherently

      improbable testimony or coerced, equivocal, wholly uncorroborated testimony

      of incredible dubiosity. Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (quoting

      Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)). For this rule to apply, there

      must be: “1) a sole testifying witness; 2) testimony that is inherently

      contradictory, equivocal, or the result of coercion; and 3) a complete absence of

      circumstantial evidence.” Id. at 756.


[9]   It is not perfectly clear that the “sole testifying witness” requirement of the

      incredible dubiosity rule is met here, given that both K.O. and K.P. testified.

      However, it is true that K.P., at least, provided the sole testimony as to her own

      molestation, as K.O. testified that she did not witness it. Stewart directs us to

      certain inconsistencies between the girls’s testimony. For instance, although

      K.P. testified that she was present when Stewart molested K.O., K.O. testified

      that K.P. was in the bathroom when he did so. Also, K.P. testified that they

      were lying on their stomachs when Stewart massaged them, while K.O. testified

      Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 5 of 13
       that they were sitting upright. As noted earlier, K.P. testified that she asked

       Stewart to give her and K.O. massages, while K.O. testified that Stewart had

       asked to do so.


[10]   We find such discrepancies between K.O.’s and K.P.’s testimony to be

       relatively minor, and certainly not enough to make their testimony incredibly

       dubious. It is well-settled that a good deal of leeway is accorded to the

       testimony of children, with respect to “equivocations, uncertainties, and

       inconsistencies,” and must be considered in conjunction with all the

       circumstances and recognizing the passage of time between an incident and

       trial. Fajardo v. State, 859 N.E.2d 1201, 1209 (Ind. 2007). Additionally, as a

       general rule, when there are inconsistencies as to details of an offense between

       multiple witnesses, it merely goes to the weight a fact-finder may decide to give

       to various witnesses’ testimony; it does not mean their testimony is incredibly

       dubious. Moore, 27 N.E.3d at 759. Here, each child’s testimony was consistent

       with regard to what Stewart specifically did to them and was consistent as to

       the broad details. Any discrepancies or inconsistencies as to certain details

       went to the weight of their testimony, not its legal sufficiency.


[11]   Stewart also suggests that K.O.’s testimony was incredibly dubious because she

       testified that she stayed in or returned to the bedroom after Stewart had fondled

       her. This seems to assume that a molested child in every case will run away

       from his or her abuser. We think such an assumption is unwarranted and

       disregards the various reactions a child may have to being abused or victimized.



       Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 6 of 13
[12]   Finally, Stewart contends that K.O.’s testimony was somehow coerced, because

       K.P.’s mother asked K.O. whether she had been touched after K.P. had told her

       mother she had been touched. If we were to accept Stewart’s argument, it

       would mean that no parent (or guardian) could ever ask a child whom they

       suspected of being abused whether such abuse did occur. This would likely

       improperly exclude the testimony of children in a vast number of cases. There

       is no evidence in the record that K.P.’s mother or anyone else engaged in any

       “coaching” of K.O. or that it was coerced. See Hampton v. State, 921 N.E.2d 27,

       29 (Ind. Ct. App. 2010) (holding that seven-year-old child’s testimony that

       mother had “told her what to say” did not make her testimony incredibly

       dubious, where child also testified that mother had told her to “tell the truth”),

       trans. denied. In sum, K.O.’s and K.P.’s testimony does not fall under the

       incredible dubiosity rule and there is sufficient evidence to sustain Stewart’s

       convictions.


                               II. Repeat Sexual Offender Enhancement

[13]   Next, Stewart contends the trial court improperly enhanced both of his

       sentences for Level 4 felony child molesting based on the finding that he is a

       repeat sexual offender. The State concedes that only one of Stewart’s sentences

       could be enhanced.


[14]   The repeat sexual offender statute provides:


               (a) As used in this section, “sex offense” means a felony
               conviction:


       Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 7 of 13
                (1) under IC 35-42-4-1 through IC 35-42-4-9 or under IC
                35-46-1-3;


                (2) for an attempt or conspiracy to commit an offense
                described in subdivision (1); or


                (3) for an offense under the laws of another jurisdiction,
                including a military court, that is substantially similar to
                an offense described in subdivision (1).


        (b) The state may seek to have a person sentenced as a repeat
        sexual offender for a sex offense described in subsection (a)(1) or
        (a)(2) by alleging, on a page separate from the rest of the charging
        instrument, that the person has accumulated one (1) prior
        unrelated felony conviction for a sex offense described in
        subsection (a).


        (c) After a person has been convicted and sentenced for a felony
        described in subsection (a)(1) or (a)(2) after having been
        sentenced for a prior unrelated sex offense described in
        subsection (a), the person has accumulated one (1) prior
        unrelated felony sex offense conviction. However, a conviction
        does not count for purposes of this subsection, if:


                (1) it has been set aside; or


                (2) it is a conviction for which the person has been
                pardoned.


        (d) If the person was convicted of the sex offense in a jury trial,
        the jury shall reconvene to hear evidence in the enhancement
        hearing. If the trial was to the court, or the judgment was entered
        on a guilty plea, the court alone shall hear evidence in the
        enhancement hearing.

Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 8 of 13
               (e) A person is a repeat sexual offender if the jury (if the hearing
               is by jury) or the court (if the hearing is to the court alone) finds
               that the state has proved beyond a reasonable doubt that the
               person had accumulated one (1) prior unrelated felony sex
               offense conviction.


               (f) The court may sentence a person found to be a repeat sexual
               offender to an additional fixed term that is the advisory sentence
               for the underlying offense. However, the additional sentence
               may not exceed ten (10) years.


       Ind. Code § 35-50-2-14.


[15]   Our supreme court has noted three types of enhanced sentencing schemes for

       recidivist offenders: the general habitual offender statute, specialized habitual

       offender statutes, and progressive-penalty statutes. Dye v. State, 972 N.E.2d

       853, 857 (Ind. 2012). The repeat sexual offender statute is a specialized

       habitual offender statute. Id. Generally, “double enhancements” of a

       defendant’s sentence are prohibited unless there is explicit legislative direction

       authorizing them. Id. at 856. It is settled Indiana law that “a trial court cannot

       order consecutive habitual offender sentences,” regardless of whether the

       sentences are imposed in the same or different proceedings. Breaston v. State,

       907 N.E.2d 992, 994-95 (Ind. 2010) (citing Starks v. State, 523 N.E.2d 735, 737

       (Ind. 1988)). “[T]he prevailing point in Starks and the line of cases that follow is

       that absent express statutory authority to do so, trial courts cannot impose

       consecutive enhanced sentences, regardless of the circumstances under which

       they arise.” Venters v. State, 8 N.E.3d 708, 712 (Ind. Ct. App. 2014) (applying

       Starks to invalidate enhancement of two consecutive sentences under
       Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 9 of 13
       specialized habitual substance offender statute). When a trial court improperly

       imposes consecutive sentences with habitual offender enhancements, the proper

       remedy is to order all but one of the habitual offender enhancements vacated.

       See Weaver v. State, 676 N.E.2d 22, 27 (Ind. Ct. App. 1997), trans. denied.


[16]   The State agrees that the repeat sexual offender enhancement of both of

       Stewart’s consecutive sentences violated the Starks line of cases. Thus, we order

       that one of those enhancements be vacated. This will result in a new aggregate

       sentence for Stewart of twenty-six years.


                                        III. Inappropriate Sentence

[17]   The final issue before us is whether Stewart’s sentence is inappropriate under

       Indiana Appellate Rule 7(B) in light of his character and the nature of the

       offenses. We will consider whether a term of twenty-six years is inappropriate,

       given our vacation of one of the repeat sexual offender enhancements.

       Although Rule 7(B) does not require us to be “extremely” deferential to a trial

       court’s sentencing decision, we still must give due consideration to that

       decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

       also understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. “Additionally, a defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.” Id.


[18]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 10 of 13
       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately 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. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[19]   Regarding the nature of the offenses, Stewart notes that there was no violence

       or physical harm to the children and no evidence that they sustained

       psychological trauma beyond what would have already been considered in

       setting the advisory sentence for Level 4 felony child molesting. However,

       Stewart took advantage of a situation in which his paralyzed girlfriend

       frequently babysat the girls, and touched both of them inappropriately during

       backrubs after he had made them comfortable with receiving backrubs from

       him on previous occasions. K.S.’s younger brothers were in the next room

       when the molestations occurred.2 Additionally, we note that “[c]onsecutive




       2
        Although Stewart frames his sentencing argument as an inappropriateness argument, he contends the trial
       court abused its discretion in finding as aggravating circumstances that he had a position of care, custody, or
       control over the girls and that he committed the crimes in the presence of other children. However, he fails

       Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017           Page 11 of 13
       sentences reflect the significance of multiple victims.” Pittman v. State, 885

       N.E.2d 1246, 1259 (Ind. 2008).


[20]   As for Stewart’s character, his prior conviction for a similar sex offense and his

       failure to properly register as a sex offender after being released from prison for

       that offense are troubling, given their close relation to the present offenses.

       Stewart contends that it is unlikely he would reoffend, given his age (sixty-four

       at the time of sentencing) and his poor health. As the State notes, however,

       Stewart committed these offenses when his health already was poor and his age

       was advanced. It is reasonable to think he could commit similar offenses in the

       future, regardless of his age and health. We cannot say that the nature of the

       offenses here and Stewart’s character necessarily dictate that his sentence of

       twenty-six years is inappropriate.


                                                    Conclusion
[21]   There is sufficient evidence to sustain Stewart’s convictions for two counts of

       Level 4 felony child molesting. We reverse and remand in part with directions

       that one of Stewart’s six-year sentencing enhancements for being a repeat

       sexual offender be vacated, reducing his total sentence to twenty-six years.

       That remaining twenty-six-year sentence is not inappropriate.




       to cite relevant authority and make a cogent argument regarding an abuse of discretion standard of review,
       which is separate and distinct from inappropriateness review. See Keller v. State, 987 N.E.2d 1099, 1121 n.11
       (Ind. Ct. App. 2013), trans. denied. Stewart has waived review of this argument. See id.

       Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017          Page 12 of 13
[22]   Affirmed in part, reversed in part, and remanded.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 78A01-1703-CR-509 | November 17, 2017   Page 13 of 13
