MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                            Jan 11 2019, 10:01 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Theodore J. Minch                                        Curtis T. Hill, Jr.
Sovich Minch, LLP                                        Attorney General of Indiana
Indianapolis, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Dale Alford,                                     January 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1152
        v.                                               Appeal from the Shelby Superior
                                                         Court
State of Indiana,                                        The Honorable R. Kent Apsley,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         73D01-1703-F1-3



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019               Page 1 of 14
                                   Case Summary and Issues
[1]   Following a jury trial, Timothy Alford was convicted of child molesting, a

      Level 1 felony, and admitted to being an habitual offender. The trial court

      sentenced him to thirty-five years for the conviction, enhanced by an additional

      ten years for the habitual offender finding. Alford appeals, raising two issues

      for our review: 1) whether the evidence was sufficient to support his conviction

      for child molesting and 2) whether the forty-five year sentence is inappropriate

      in light of the nature of his offense and his character. Concluding there was

      sufficient evidence to support his conviction and that his sentence is not

      inappropriate, we affirm.



                                Facts and Procedural History
[2]   S.M. was born on May 11, 2001. His parents, Jeremy and Stacy, were divorced

      when he was very young, and Stacy had primary physical custody of S.M., with

      Jeremy having parenting time every other weekend. Jeremy remarried and he

      and his current wife, Sara, have three other children. 1 In 2012, after Jeremy and

      Sara had a baby, Jeremy and S.M. lost contact.


[3]   In 2014, while S.M. continued to be in her physical custody, Stacy was running

      a daycare out of the first floor of her home on West Broadway in Shelbyville.

      Beginning in October 2014, Alford assisted Stacy with the daycare. Stacy knew




      1
          Two of the children are Sara’s from prior to her marriage to Jeremy; they have one child together.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019                    Page 2 of 14
      Alford from having dated his brother sometime earlier. S.M. was also

      acquainted with Alford and “thought he was one of my friends.” Transcript,

      Volume 1 at 151. In the fall of 2014, S.M. was thirteen years old and a

      freshman in high school. He liked video games and would usually come home

      from school and go straight to his room on the second floor to play videogames.


[4]   Sometime that fall, Alford entered S.M.’s room and laid on S.M.’s bed behind

      him while S.M. was laying on his right side playing a game. After a while,

      Alford got up and left the room. On a second occasion, Alford again entered

      S.M.’s room and laid on S.M.’s bed behind him while S.M. was watching

      YouTube. This time, however, Alford reached around with his hand and began

      rubbing S.M.’s penis over his shorts until S.M. got an erection. Alford then left

      the room. On another day “[n]ot very much later,” id. at 152, Alford again

      entered S.M.’s bedroom while S.M. was playing videogames and laid on S.M.’s

      bed behind S.M. He reached around with his hand and began stroking S.M.’s

      penis until S.M. became erect. Then he pulled down S.M.’s shorts and put his

      mouth on S.M.’s penis until S.M. ejaculated. On a fourth occasion, S.M. was

      asleep in his bed when he woke up to find Alford had pulled his shorts down

      and had his mouth on S.M.’s penis. After S.M. ejaculated, Alford left the

      room. Each time Alford entered S.M.’s room, S.M. “thought if I ignored him

      he’d leave me alone.” Id. at 158. S.M. was “[c]onfused” and “didn’t

      understand how [he] was supposed to feel or . . . why [Alford] was doing it.”

      Id. at 164. S.M. did not tell his mother about these incidents because he “didn’t

      really know how to tell her [and] didn’t trust her[.]” Id. at 163. In January


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 3 of 14
      2015, Stacy, with Alford’s help, moved the daycare to a new location. S.M.

      testified Alford had touched him inappropriately exclusively at the Broadway

      house.


[5]   On S.M.’s fourteenth birthday, in May 2015, Jeremy reached out to S.M. and

      they began a regular parenting time schedule again. After Stacy’s boyfriend

      moved into her house in late 2016, S.M. asked to live with Jeremy and Sara

      because he thought the boyfriend was violent. Jeremy filed a petition to modify

      custody in late October 2016 and when Stacy was served with the petition, she

      told S.M. to pack his things. From that point on, S.M. lived with Jeremy and

      Sara. Custody was officially modified by agreement on April 7, 2017.


[6]   Once S.M. moved into their home permanently, Sara observed behaviors that

      caused her to be concerned about him. In November 2016, after S.M. had been

      with Jeremy and Sara full time for approximately three weeks, S.M. told Sara

      he wanted to be put on antidepressants. Sara questioned him, trying to find out

      what was causing S.M. to be depressed. S.M. eventually disclosed the abuse by

      Alford. Sara immediately called Jeremy and together, they contacted the

      Indianapolis Metropolitan Police Department (“IMPD”). IMPD referred them

      to the Shelbyville Police Department because the events occurred there.

      Shelbyville Police took a report on November 17, 2016, of possible child

      molesting and arranged for S.M. to be interviewed by specially trained

      personnel at the Child Advocacy Center in December 2016. Detective Brian

      Roberts interviewed Alford thereafter. Alford stated that he worked for Stacy

      beginning in October 2014 at her daycare on West Broadway, that he was alone

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 4 of 14
      with S.M. frequently, and that he would sometimes go to S.M.’s room and lay

      on his bed with him while he was playing videogames. Alford denied any

      sexual contact.


[7]   In March 2017, the State charged Alford with child molesting, a Level 1 felony;

      child solicitation, a Level 5 felony; and alleged he was an habitual offender. A

      jury found Alford guilty of both child molesting and child solicitation.

      Thereafter, Alford admitted that he was an habitual offender. As part of that

      admission, Alford and the State agreed that any habitual offender enhancement

      would be capped at fifteen years.


[8]   Prior to sentencing, Alford filed a motion for judgment on the evidence on the

      child solicitation charge, and the trial court and the State both agreed that there

      was no evidence elicited at trial to support that charge. The trial court therefore

      granted the motion and Alford was sentenced only for child molesting. The

      trial court found as mitigating circumstances that incarceration would be a

      hardship for Alford because he had a number of medical conditions and that he

      pleaded guilty to the habitual offender enhancement, eliminating the need to

      conduct a second phase of his trial and accepting responsibility for that charge.

      The trial court found as aggravating circumstances Alford’s extensive criminal

      history, his lack of success while on probation, and that he violated a condition

      of his release in this case by appearing in court while in the possession of

      contraband and controlled substances, incurring new charges. The trial court

      specifically rejected the State’s allegation that Alford was in a position of care,

      custody, or control with respect to S.M. Finding that Alford was not “the worst

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 5 of 14
       of the worst of the worst” but that there were “significant aggravators,” the trial

       court sentenced Alford to thirty-five years for the child molesting conviction,

       enhanced by ten years for the habitual offender finding. Tr., Vol. 2 at 182.

       Alford now appeals his conviction and sentence.



                                      Discussion and Decision
                                    I. Sufficiency of the Evidence
                                            A. Standard of Review
[9]    In reviewing the sufficiency of the evidence to support a conviction, we neither

       reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27

       N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the

       judgment and any reasonable inferences drawn therefrom, id., and we will

       affirm the conviction “if there is substantial evidence of probative value

       supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt.” Walker v.

       State, 998 N.E.2d 724, 726 (Ind. 2013) (citation omitted).


                                    B. Evidence of Child Molesting
[10]   Alford was convicted of child molesting as Level 1 felony, which required proof

       beyond a reasonable doubt that Alford, being at least twenty-one years of age,2




       2
           There is no dispute that Alford was older than twenty-one in the fall of 2014.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019     Page 6 of 14
       knowingly or intentionally performed other sexual conduct with S.M., a child

       under fourteen years of age. Ind. Code § 35-42-4-3(a)(1). “Other sexual

       conduct” includes an act involving a sex organ of one person and the mouth of

       another person. Ind. Code § 35-31.5-2-221.5(1).


[11]   Alford first contends the State failed to prove that S.M. was thirteen at the time

       of the offense because “S.M. seemed unsure of when and how old he was in his

       testimony regarding when he was molested[.]” Opening Brief of Appellant at

       15. Alford focuses on the following exchange during S.M.’s direct

       examination:


               Q: And we talked a lot about that Fall of 2014 time period. Is
               that the time that we’re talking about or is it a different time
               period that we’re talking about for when these touching [sic]
               would have happened?


               A: Just that time period.


               Q: When you would have been what age?


               A: When I would have been 14.


               Q: Okay, well . . .


               A: Thirteen (13), yeah.


               Q: So you were born in 2001, right?


               A: Yes.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 7 of 14
               Q: May of 2001, so you would have turned 14 then May of 2000
               ...


               A: ’15.


               Q: What year?


               A: 2015.


               Q: ’15, okay. So then Fall of 2014.


               A: I would have been 13.


       Tr., Vol. 1 at 145-46. It is true that S.M. misspoke on that one occasion.

       However, on all other occasions, S.M. consistently stated that the molestation

       occurred in 2014, in the Broadway house, when he was thirteen years old.

       Despite Alford’s contention that S.M. only corrected himself upon leading

       questioning by the State, it appears S.M. actually corrected himself. This

       timeline also fits with his father and step-mother’s testimonies about when they

       resumed contact with him and when he came to live with them as well as with

       Alford’s testimony about when he worked for Stacy at the Broadway house.

       There was sufficient evidence beyond a reasonable doubt that S.M. was thirteen

       when the molestation occurred.


[12]   Alford also contends that S.M.’s testimony is inherently unreliable because

       there were no eyewitnesses, no forensic evidence, no corroborating evidence, it

       occurred two years before it was reported, and S.M. had a motive to fabricate a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 8 of 14
       reason for his custody to be changed to his father. Alford acknowledges that

       the uncorroborated testimony of the victim alone is sufficient to sustain a

       conviction for child molesting. See Bailey v. State, 979 N.E.2d 133, 135 (Ind.

       2012). He argues, however, that S.M.’s testimony is incredibly dubious.


[13]   The incredible dubiosity rule allows the reviewing court to impinge upon a fact

       finder’s responsibility to judge the credibility of the witnesses when confronted

       with evidence that is “so unbelievable, incredible, or improbable that no

       reasonable person could ever reach a guilty verdict based upon that evidence

       alone.” Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). The rule is applied in

       limited circumstances, namely where there is “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. Application

       of the incredible dubiosity 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.” Love v. State, 761 N.E.2d 806, 810 (Ind.

       2002). “[W]hile incredible dubiosity provides a standard that is ‘not impossible’

       to meet, it is a ‘difficult standard to meet, [and] one that requires great

       ambiguity and inconsistency in the evidence.’” Moore, 27 N.E.3d at 756

       (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).


[14]   In applying the Moore factors to this case, we conclude the incredible dubiosity

       rule is inapplicable. S.M.’s testimony is not inherently contradictory or

       equivocal. That a child waited two years until he was in a position to tell a

       person he trusted about an upsetting event is not so improbable that no

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 9 of 14
       reasonable person could believe the allegations. If S.M. was so upset with his

       mother that he would fabricate allegations so that his mother would lose

       custody of him, it seems unlikely he would accuse a peripheral person in the

       household of child molesting rather than make direct allegations against his

       mother or her boyfriend. Moreover, there was circumstantial evidence

       supporting Alford’s guilt. Alford himself testified that he worked in the home

       during the timeframe S.M. alleges he was molested, that he was alone with

       S.M. frequently, and that he would lay on S.M.’s bed with him while S.M. was

       playing videogames.


[15]   Alford has failed to establish that the limited exception of the incredible

       dubiosity rule applies, and we decline to disturb the jury’s determination that

       S.M.’s testimony was more credible than Alford’s denial. S.M. testified that

       when he was thirteen years old, Alford put his mouth on S.M.’s penis. The

       State proved by sufficient evidence that Alford committed child molesting, a

       Level 1 felony.


                                  II. Inappropriate Sentence
                                       A. Standard of Review
[16]   “The Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Ind. Appellate Rule 7(B). “[T]he question under Appellate Rule

       7(B) is not whether another sentence is more appropriate; rather, the question is


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 10 of 14
       whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008).


[17]   The defendant has the burden to persuade us that the sentence imposed by the

       trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218. Deference to the trial court’s sentencing

       decision should prevail unless it can be 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). “The principal role of appellate review

       should be to attempt to leaven the outliers . . . not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008).


                                         B. Alford’s Sentence
[18]   Alford’s argument does not comment specifically upon the nature of his offense

       or his character. Instead, Alford argues that the sentence of forty-five years “is,

       effectively, a death sentence” because Alford was fifty-two years old when

       sentenced and “in extraordinarily poor health[.]” Br. of Appellant at 17.

       Alford points out that the Shelby County Probation Department recommended

       a sentence of thirty-three years. We nonetheless address the two prongs of Rule

       7(B) for assessing whether a sentence is inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 11 of 14
[19]   The nature of the offense refers to a defendant’s actions in comparison with the

       elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App.

       2018), trans. denied. The nature of the offense can be analyzed by using the

       advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494.


[20]   Alford was found guilty of one count of Level 1 felony child molesting and was

       found to be an habitual offender. He received a sentence of thirty-five years for

       his conviction, enhanced by ten years for the habitual offender finding. The

       sentencing range for a Level 1 felony is between twenty years and forty years

       with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(b). The

       sentencing range for the habitual offender finding is between six years and

       twenty years, Ind. Code § 35-50-2-8(i)(1), but due to an agreement between the

       parties when Alford admitted his habitual offender status, the enhancement was

       capped at fifteen years. The trial court noted at sentencing that “[t]his is an

       egregious case, there are significant aggravators, but it is probably in the realm

       of Level 1 Felonies not the worst of the worst . . . and therefore the maximum

       sentence is not appropriate.” Tr., Vol. 2 at 182. Alford was charged with one

       count of child molesting, but S.M. testified there were several separate acts.

       These acts presumably occurred when other children were in the house because

       the house also served as a daycare facility. We agree with the trial court that

       this is not the worst of offenses, but an aggravated, less-than-maximum

       sentence is not inappropriate.


[21]   The character of the offender refers to “general sentencing considerations and

       the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 12 of 14
       280. “We assess the trial court’s recognition or non-recognition of aggravators

       and mitigators as an initial guide to determining whether the sentence imposed

       was inappropriate.” Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App.

       2016). When evaluating the character of the offender, we consider his or her

       criminal history a relevant factor. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct.

       App. 2017), trans. denied. “The significance of [a defendant’s] criminal history

       varies based on the gravity, nature, and number of prior offenses in relation to

       the current offense.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).


[22]   Alford’s criminal history consists of five prior misdemeanor convictions and

       three prior felony convictions. These convictions are primarily for drug

       offenses; he has no priors for offenses against a person. He has been on

       probation four times. He violated the terms of his probation in three of those

       instances and his probation was revoked in two cases. The trial court noted

       that it ordered Alford taken into custody at the conclusion of his trial and he

       was found to be in possession of drugs and contraband when he arrived at the

       county jail. The trial court found this to be “the ultimate contempt of this

       Court and this process.” Tr., Vol. 2 at 182. Although Alford’s criminal history

       is not related to the current offense in gravity or nature, there are a number of

       prior offenses, and his disregard for the law is apparent in his blatant

       commission of a crime while in court. As for Alford’s sole argument about his

       advanced age and poor health, neither of these are virtuous character traits that

       indicate his sentence is inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 13 of 14
[23]   After considering the nature of Alford’s crime and his character, we conclude

       his sentence is not inappropriate.



                                               Conclusion
[24]   The State presented sufficient evidence to support Alford’s conviction of child

       molesting, and his aggregate sentence of forty-five years is not inappropriate.

       Accordingly, his conviction and sentence are affirmed.


[25]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019   Page 14 of 14
