Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                             FILED
                                                           Feb 07 2013, 8:53 am
court except for the purpose of
establishing the defense of res judicata,                         CLERK
collateral estoppel, or the law of the case.                    of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

THOMAS J. O’BRIEN                               GREGORY F. ZOELLER
O’Brien & Dekker                                Attorney General of Indiana
Lafayette, Indiana
                                                KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHARLES DAY,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 79A04-1206-CR-303
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                          The Honorable Randy J. Williams, Judge
                              Cause No. 79D01-1106-FA-11



                                     February 7, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Here, appellant-defendant Charles Day was the only paternal grandfather that ten-

year-old O.S. knew, even though he was not her biological grandfather. Day married

O.S.’s grandmother before she was born, and O.S. frequently stayed overnight with her

paternal grandparents.

          During these overnight visits, O.S. slept in the same bed with Day because her

grandmother, Debra, had to sleep in another room for health reasons.              Day would

inappropriately touch O.S. virtually every time she stayed with them. Eventually O.S.

told her step-sister about the incidents, who in turn, told O.S.’s mother.

          Day was convicted of five counts of Child Molesting,1 three as class A felonies

and two as class C felonies; Attempted Child Molesting,2 a class A felony; and Child

Solicitation,3 a class D felony. Day was sentenced to an executed term of forty-four years

in the Department of Correction (DOC).

          On appeal, Day argues that the evidence is insufficient, insofar as O.S.’s testimony

is incredibly dubious. Additionally, Day contends that his sentence is inappropriate in

light of the nature of the offenses and his character pursuant to Indiana Appellate Rule

7(B).

          Concluding that O.S.’s testimony was not incredibly dubious and that, to the

contrary, independent evidence supported her testimony, we find sufficient evidence to


1
    Ind. Code § 35-42-4-3
2
    Id.; Ind. Code § 35-41-5-1.
3
    I.C. § 35-42-4-6.
                                               2
sustain Day’s convictions. Moreover, in light of Day’s position of trust, the repeated

nature of the offenses, the way in which Day paid his granddaughter so that she would

engage in sexual acts with him, and his criminal background, we cannot conclude that his

forty-four-year executed sentence is inappropriate, and we decline to revise it.

Accordingly, the judgment of the trial court is affirmed.

                                            FACTS

       O.S., born on March 1, 2000, lived with her father in Lafayette. On weekends,

O.S. stayed with her mother. O.S. would also frequently stay overnight with her paternal

grandparents, Day and his wife, Debra. Whenever she stayed at Day’s house, she slept in

the same bed with Day, while her grandmother slept in another room because of health

reasons. Although Day is not a biological relative, he was the only grandfather that O.S.

knew on her father’s side, having been married to Debra since before O.S. was born.

       Beginning when O.S. was ten years old, Day would inappropriately touch her

“almost every time [she] would go over there.” Tr. p. 38. He began by kissing her longer

than a goodnight kiss should last. Day progressed to touching her leg and soon, he was

touching her vagina and digitally penetrating her. Day would also penetrate O.S.’s

vagina with his tongue and ask her if it felt good. Day touched O.S. with his penis and

asked her to touch his penis with her hand or her mouth. “White stuff would come out of

[Day’s penis] sometimes.”      Id. at 41.    Day’s behavior escalated to where he was

attempting to have anal sex with O.S.; however, it hurt her so badly that she would move

away from him when he attempted to penetrate her.

                                              3
       Day told O.S. to keep his actions their little secret or he would be in trouble. Day

would pay O.S. $20 to masturbate him or to perform oral sex on him. Day offered this

money in advance to entice O.S. to perform these acts. O.S. then used the money to buy

pizza for herself and her friends at a local pizza shop.

       After almost one year had passed, O.S. became “sick and tired of it” and told her

step-sister, B.Y., about the abuse. Tr. p. 46, 111. B.Y. then told O.S.’s mother. The

Lafayette Police Department was called, and O.S. and her mother were taken to the

Hartford House, where O.S. was interviewed by a child forensic interviewer. Tr. p. 125,

139, 154.

       On June 6, 2011, the State charged Day with five counts of child molesting, three

as class A felonies and two as class C felonies; one count of class A felony attempted

child molesting; and one count of class D felony child solicitation. The jury found Day

guilty as charged on April 11, 2012.

       On May 25, 2012, Day was sentenced to forty-four years for each of the class A

felony convictions, seven years for the class C felony conviction, and two years for the

class D felony conviction with all counts to be served concurrently with each other for a

total executed term of forty-four years imprisonment. Day now appeals.




                                              4
                            DISCUSSION AND DECISION

               I. Sufficiency of the Evidence – Incredible Dubiosity Rule

      Day argues that the evidence was insufficient to sustain his convictions. More

particularly, Day contends that the testimony of the sole witness, O.S., was incredibly

dubious.

      Generally, when reviewing the sufficiency of the evidence, the reviewing court

neither reweighs the evidence nor determines the credibility of witnesses. Gardner v.

State, 724 N.E.2d 624, 626 (Ind. Ct. App. 2000). Additionally, under the current state of

the law, the uncorroborated testimony of a single witness may sustain a conviction.

McCarthy v. State, 749 N.E.2d 528, 538 (Ind. 2001).

      Notwithstanding these general principles, the doctrine of incredible dubiosity

allows a reviewing court to reevaluate the credibility of a witness when “a sole witness

presents inherently improbable testimony and there is a complete lack of circumstantial

evidence.” Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). The “[a]pplication 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.

      A defendant cannot appeal to this exception merely by showing some

inconsistency or irregularity in a witness’s testimony. Cowan v. State, 783 N.E.2d 1270,

1278 (Ind. Ct. App. 2003). Rather, a defendant must show that the witness’s testimony

“runs counter to human experience” such that no reasonable person could believe it.

Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000). Moreover, the rule does

                                            5
not apply when testimony is corroborated by additional witnesses or circumstantial

evidence. Thompson v. State, 765 N.E.2d 1273, 1274 (Ind. 2002).

       Here, the fact that O.S. and Day slept in one bedroom while Debra slept in a

different bedroom corroborates O.S.’s testimony and provides circumstantial evidence to

support her testimony. Tr. p. 36, 90, 100. Moreover, O.S.’s father corroborated her

testimony that Day paid her to perform sexual acts when he testified that O.S. would

often ride her bicycle to the local pizza place to buy pizza and soda, which were the exact

items on which O.S. stated she spent the money. Id. at 43, 74. Finally, O.S.’s mother

corroborated O.S.’s testimony that she first disclosed the molestations to B.Y. and that

her mother learned of the accusations from B.Y. Id. at 45, 111. In light of the above, we

cannot say that there is a complete lack of circumstantial evidence. Therefore, the

incredible dubiosity exception does not apply, and this argument fails.

                                II. Inappropriate Sentence

       Day maintains that his executed forty-four-year sentence is inappropriate in light

of the nature of the offenses and his character under Rule 7(B). When reviewing a Rule

7(B) appropriateness challenge, we defer to the trial court. Stewart v. State, 866 N.E.2d

858, 866 (Ind. Ct. App. 2007). The burden is on the defendant to persuade us that his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Our

Supreme Court has opined that “[i]n the vast majority of cases, whether [the aggregate

sentence and how it is to be served] are derived from multiple or single counts, involve

maximum or minimum sentences, and are concurrent or consecutive is of far less

                                            6
significance than the aggregate term of years.” Cardwell v. State, 895 N.E.2d 1219, 1224

(Ind. 2008).

       Here, Day was sentenced to an executed term of forty-four years imprisonment

after being convicted of four class A felonies, two class C felonies, and one class D

felony. Indiana Code section 35-50-2-4 provides that a person convicted of a class A

felony shall be imprisoned for a term between twenty and fifty years with an advisory

term of thirty years. Likewise, a person convicted of a class C felony shall be imprisoned

for a term between two and eight years with an advisory term of four years. Ind. Code §

35-50-2-6. And a person who commits a class D felony shall be imprisoned for a term

between six months and three years with the advisory sentencing being one and one-half

years. I.C. § 35-50-2-7. Thus, it is immediately apparent that Day’s executed term is far

less than what he was subjected to under statute.

       As for the nature of the offenses, Day was in a position of trust, insofar as he was

the only paternal grandfather that O.S. knew. Day sexually abused O.S. “almost every

time [she] would go over there,” which was frequently. Tr. p. 38. And the molestations

continued for nearly one year. Id. at 36, 112, 138. Not only were the molestations

repeated and prolonged, but Day treated his ten-year-old granddaughter like a prostitute,

paying her $20 each time she would perform certain sexual acts including oral sex. Id. at

43.   The nature of the offenses certainly does not assist Day’s inappropriateness

argument.



                                            7
        As for Day’s character, he does have a criminal history. More particularly, in

1989, Day was convicted of a class D felony drug offense, and in 2004, he was convicted

of operating a vehicle while intoxicated (OVWI) and failing to stop at the scene of an

accident. PSI p. 4-5. As part of a plea agreement in the 2004 OVWI case, another

OVWI charge from two months earlier was dismissed as was a charge of possession of a

controlled substance. Id.

        Moreover, in 1969, Day was arrested for being Absent Without Official Leave,

(AWOL), and reported being tried by a court-martial and incarcerated for six months by

the United States Navy. PSI p. 5. While Day may not be the worst of the worst, his

character is not so pristine to convince us that his forty-four year executed sentence is

inappropriate, particularly in light of the fact that he was convicted of seven offenses,

four of which were class A felonies. Consequently, Day’s sentence is not inappropriate

in light of the nature of the offenses and his character and we affirm the decision of the

trial court.

        The judgment of the trial court is affirmed.

RILEY, J., and BARNES, J., concur.




                                              8
