MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                             FILED
court except for the purpose of establishing                     Jan 31 2017, 8:45 am
the defense of res judicata, collateral
                                                                      CLERK
estoppel, or the law of the case.                                 Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Smith,                                           January 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1605-CR-1156
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1506-F1-22228



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 1 of 29
                                          Case Summary
[1]   On numerous occasions between October of 2010 and June of 2015, Appellant-

      Defendant Timothy Smith sexually molested his two minor step-daughters.

      Smith was subsequently charged with and convicted of numerous counts of

      felony child molesting and felony criminal confinement. Smith was thereafter

      sentenced to an aggregate term of eighty-four years.


[2]   On appeal, Smith contends that the trial court abused its discretion in excluding

      certain proffered evidence from trial. Smith also contends, and the State

      concedes, that the evidence is insufficient to sustain one of his convictions.

      Smith further contends that his aggregate eighty-four-year sentence is

      inappropriate. Upon review, we conclude that (1) the trial court did not abuse

      its discretion in excluding certain proffered evidence from trial, (2) the evidence

      is insufficient to sustain the challenged conviction, and (3) Smith’s aggregate

      eighty-four-year sentence is not inappropriate. Consequently, we affirm in part

      and reverse in part.



                            Facts and Procedural History
[3]   Shemika Smith is the mother of four children, including K.J., who was born on

      December 28, 2000, and M.K., who was born on October 5, 2005. Shemika

      married Smith on June 18, 2011. From 2011 to 2015, Shemika and her

      children lived with Smith. During this time, Shemika worked long hours,

      including some twelve- or thirteen-hour days and weekends, as a training


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 2 of 29
      coordinator at AAR Aircraft Services. Often, Smith would watch K.J. and

      M.K. after school until Shemika returned home from work.


[4]   At the time of Shemika’s and Smith’s marriage, Shemika, Smith, and

      Shemika’s children lived in an apartment in the Mayfield Green Apartments in

      Indianapolis. On one occasion, then-eleven-year-old K.J. walked past her

      mother’s and Smith’s bedroom on her way to her room after she finished taking

      a shower. At the time, K.J. was wrapped only in a towel. As K.J. walked by,

      Smith, who was in his and Shemika’s bedroom, ordered K.J. into the bedroom.

      Smith “gave [K.J.] a whooping” with a leather belt and ordered her to lie on the

      bed. Tr. p. 79. Smith then disrobed and lay on top of K.J. Smith fondled

      K.J.’s breasts and put his penis partly in her vagina, causing her pain. After

      hearing K.J.’s brothers enter the residence, Smith ejaculated “on [K.J.’s]

      vagina” before rising off of K.J. Tr. p. 86. After the incident ended, K.J. began

      crying. She decided to take another shower because she “felt disgusted.” Tr. p.

      85. Smith subjected K.J. to similar sexual abuse “[m]ore than once” while the

      family lived in the Mayfield Green Apartments. Tr. p. 87. K.J. did not report

      Smith’s actions because she “was scared.” Tr. p. 86.


[5]   From October of 2011 through part of 2012, Shemika, Smith, and Shemika’s

      children lived in a residence on Dunsany Court in Indianapolis. On one

      occasion while the family lived in the residence on Dunsany Court, K.J. awoke

      to find Smith touching her. Smith removed K.J.’s tank top, removed her pants

      and underwear, and ordered her to lie on her stomach. Smith pushed her legs

      open, lay on top of K.J., and “took his penis and tried to put it in” K.J.’s anus.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 3 of 29
      Tr. p. 88. After Smith stopped, he got up, gave her money and food, and called

      her a “ho.” Tr. p. 93. Similar sexual abuse occurred “[m]ore than once” while

      the family lived in the residence on Dunsany Court. Tr. p. 93. On one of these

      other occasions, K.J. believed that one of her older brothers “basically” saw the

      abuse. Tr. p. 93. K.J. reported the abuse to her mother, but when questioned

      by Shemika about what he observed, K.J.’s brother indicated that he “didn’t see

      anything.” Tr. p. 94.


[6]   From the remaining part of 2012 through September of 2013, Shemika, Smith,

      and Shemika’s children lived in a residence on West 38th Street in Indianapolis.

      On one occasion while the family lived in the residence on West 38 th Street,

      K.J. was cleaning the basement when Smith came downstairs, “bent [K.J.] over

      the dryer[,] and pulled [her] pants down.” Tr. p. 95. Smith spread K.J.’s legs,

      placed his hands on her back, and “tried to put his penis in [her] vagina.” Tr. p.

      96. K.J. indicated that “it hurt worse than all the other times” and felt like “he

      was really trying to force it in [her] vagina.” Tr. p. 96. K.J. indicated that on

      this occasion, Smith also “tried to put it in her butt.” Tr. p. 97. This incident of

      sexual abuse ended when Smith heard Shemika enter the residence. Similar

      sexual abuse occurred “[m]ore than once” while the family lived in the

      residence on West 38th Street. Tr. p. 98.


[7]   M.K. also indicated that on one occasion while the family lived in the residence

      on West 38th Street, Smith “pushed” her down on her bed, took her clothes off,

      and “started having sex with [her]” by placing his penis between her buttocks

      and “moving up and down and side to side.” Tr. p. 38. M.K. was eight years

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 4 of 29
       old at the time. She indicated that similar sexual abused occurred “[m]ore than

       once” while the family lived in the residence on West 38th Street. Tr. p. 40.


[8]    From September of 2013 through June of 2015, Shemika, Smith, and Shemika’s

       children lived in a different residence on Dunsany Court in Indianapolis. K.J.

       “basically locked [herself] in [her] room, or like if [Smith] was there … would

       probably go outside and wait until [her] mom got home.” Tr. p. 100. Smith,

       however, continued to molest M.K. during this time. On one occasion in

       March of 2015, Smith “forced [M.K.] to get on the bed and take [her] clothes

       off.” Tr. p. 28. Smith, who was not wearing any clothes, lay down on M.K.’s

       back. M.K. could feel Smith’s “penis and his stomach” on her back. Tr. p. 30.

       Smith rubbed his penis between M.K.’s buttocks. During this time, Smith was

       moving “[u]p and down and side to side.” Tr. p. 32. M.K. indicated that this

       contact with Smith felt “scary” and “wrong.” Tr. p. 32. Smith ignored M.K.’s

       requests to stop and he continued until he ejaculated. Similar sexual abuse

       occurred “[m]ore than once” while the family lived in the residence on

       Dunsany Court. Tr. p. 36.


[9]    Smith told M.K. that he would kill her family if she told anyone about the

       abuse. Despite these threats, M.K. told a friend and her mother about Smith’s

       actions. M.K. indicated, however, that her mother didn’t believe her the first

       time she reported Smith’s abuse, so she did not report any other incidents.


[10]   In June of 2015, K.J., M.K., and their cousin went to Six Flags in St. Louis

       with Shemika and Smith. During the trip to St. Louis, Smith took M.K. and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 5 of 29
       her cousin to the swimming pool. While at the swimming pool, M.K. noticed

       that Smith was looking at her in a “funny” and “creepy” way. Tr. p. 41.


[11]   When the family returned to Indianapolis, M.K.’s uncle came to the family’s

       residence to pick up M.K.’s cousin. M.K. was “tired of the things [Smith] kept

       doing to [her]” and was “forcing [her] to do,” so she decided to report the

       sexual abuse to her uncle. Tr. pp. 40, 41. M.K. got in the car with her uncle,

       who drove around the corner while they talked. M.K. then told her uncle that

       Smith “kept doing nasty stuff” to her. Tr. p. 42. M.K.’s uncle “reacted in a

       mad way” and, while M.K. was still in the car, “called the police” and reported

       the abuse. Tr. p. 42.


[12]   The police responded to the location where M.K. and her uncle were parked

       and began to investigate the reported sexual abuse. During the course of this

       investigation, K.J. also informed the police that Smith had committed sexual

       abuse on her. Soon thereafter, on June 25, 2016, Appellee-Plaintiff the State of

       Indiana (“the State”) charged Smith as follows: Count I – Class A felony child

       molesting, Count II – Class C felony child molesting, Count III – Class C

       felony criminal confinement, Count IV – Class A felony child molesting, Count

       V – Level 1 felony child molesting, Count VI – Class A felony child molesting,

       Count VII – Level 4 felony child molesting, Count VIII – Level 5 felony

       criminal confinement, and Count IX – Class D felony performing sexual

       conduct in the presence of a minor.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 6 of 29
[13]   The trial court conducted a jury trial on April 4, 2016. At the conclusion of the

       presentation of evidence, Smith requested a directed verdict on Count IX. The

       State conceded that the witness testimony did not prove the allegations set forth

       in Count IX. Finding that the evidence did not support the charges alleged in

       Count IX, the trial court granted Smith’s motion for a directed verdict on that

       count. The jury subsequently found Smith not guilty of Count I and guilty of

       Counts II through VIII.


[14]   At sentencing, the trial court merged the convictions in Counts III and VIII into

       Counts II and VII, respectively. The trial court sentenced Smith as follows:

       Count II – four years executed, Count IV – forty years executed, Count V –

       thirty years executed, Count VI – thirty years executed, and Count VII – ten

       years executed. The trial court ordered that the sentences would run

       consecutively, except for the sentence imposed for Count V which would run

       concurrently to the sentence imposed in Count IV, for an aggregate executed

       term of eighty-four years. This appeal follows.



                                  Discussion and Decision
                                    I. Exclusion of Evidence
[15]   Smith contends that the trial court abused its discretion by prohibiting the

       defense from presenting evidence to show that K.J. had made prior false

       accusations of sexual misconduct. For its part, the State argues that the trial

       court did not abuse its discretion in this regard.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 7 of 29
                                                 A. Waiver
[16]   The State argues that Smith waived his contention regarding the admission of

       the evidence because he failed to provide pre-trial notice of the evidence as is

       required by Indiana’s Rape Shield Rule, which is set forth in Indiana Evidence

       Rule 412. With respect to questions concerning the admissibility of evidence

       relating to alleged prior false accusations of rape and Indiana’s Rape Shield

       Rule, the Indiana Supreme Court has held as follows:


               Rule 412 is designed only to preclude evidence of a complaining
               witness’s prior sexual conduct. Evidence of prior false
               accusations of rape made by a complaining witness does not
               constitute “prior sexual conduct” for rape shield purposes. In
               presenting such evidence, the defendant is not probing the
               complaining witness’s sexual history. Rather, the defendant
               seeks to prove for impeachment purposes that the complaining
               witness has previously made false accusations of rape. Viewed in
               this light, such evidence is more properly understood as verbal
               conduct, not sexual conduct. Little v. State, 413 N.E.2d 639, 643
               (Ind. Ct. App. 1980); Hall v. State, 176 Ind. App. 59, 374 N.E.2d
               62, 65 (1978). To the extent a defendant offers evidence of prior
               false accusations of rape to impeach the credibility of the witness,
               we hold that its admission does not run afoul of the Rape Shield
               Rule.


       State v. Walton, 715 N.E.2d 824, 826-27 (Ind. 1999) (footnotes omitted).1 As

       such, we conclude that Smith’s failure to follow the procedural requirements of




       1
         The Indiana Supreme Court noted, however, “that prior true accusations of rape do
       constitute evidence of the complaining witness’s prior sexual history. Consequently, such

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 8 of 29
       Evidence Rule 412(c) does not, in and of itself, preclude him from attempting to

       impeach K.J.’s credibility by presenting evidence that she had made prior false

       accusations of rape.


                                              B. The Merits
[17]   We next turn our attention to the question of whether the trial court abused its

       discretion by prohibiting the defense from presenting evidence to show that K.J.

       had made prior false accusations of sexual misconduct. In reviewing this

       question, we address whether the evidentiary foundation for the introduction of

       evidence of prior false accusations of rape has been satisfied in this case. See id.

       at 827.


[18]   The Indiana Supreme Court has held that evidence of prior false accusations of

       rape may be admitted if (1) the complaining witness admits he or she made a

       prior false accusation of rape or (2) the accusation is demonstrably false. Id. In

       the instant matter, K.J. has not admitted to making any false accusations,

       rendering the first exception set forth above inapplicable. As such, in order for

       the trial court to have abused its discretion by excluding the evidence at issue,

       the prior accusations which were allegedly made by K.J. must be

       “demonstrably false.” See id. at 828.


               When a trial court has made a ruling concerning the sufficiency
               of the foundation laid to justify the admission of evidence, we



       evidence is inadmissible under the Rape Shield Rule.” Walton, 715 N.E.2d at 827 n.7 (citing
       Little, 413 N.E.2d at 643).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 9 of 29
               review that decision for an abuse of discretion. Mullins v. State,
               646 N.E.2d 40, 51 (Ind. 1995). “Because the predicates or
               foundational requirements to admissibility often require factual
               determinations by the trial court, these findings are entitled to the
               same deference on appeal as any other factual finding, whether
               that is described as a clearly erroneous or abuse of discretion
               standard.” Stahl v. State, 686 N.E.2d 89, 91 (Ind. 1997).


       Id.


[19]   In the instant matter, the trial court conducted a hearing outside the presence of

       the jury during which defense counsel attempted to make an offer to prove that

       K.J. had made prior accusations of sexual abuse and that these prior

       accusations were demonstrably false. During the lengthy hearing, the following

       exchange occurred between defense counsel, the State, K.J. and the trial court:

               [The Defense]:        [K.J.], … I want to ask you about some
               things in the past that don’t necessarily revolve around this
               case.… Is it, is it true in the past that you’ve, um, alleged …
               people other than Mr. Smith have touched you inappropriately?

               [The Witness]:            No.

               [The Defense]:            You never accused your brother [E.J.]?

               [The Witness]:            No.

               [The Defense]:            You never accused a man in the park?

               [The Witness]:            No.

               [The Defense]:     Okay. Um. When you were younger, was
               there a DCS case where you accused separately than this case,
               um, [Smith] of touching you inappropriately?

               [The Witness]:            No.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 10 of 29
        [The Defense]:      So, it’s not true – well, isn’t it true that there
        were several reports even generated, um, regarding allegations
        you made of improper sexual conduct in the past?

        [The Witness]:            To who? From who?

        [The Defense]:            From you?

        [The Witness]:            About what?

        [The Defense]:    Isn’t it true that you reported to your mother
        that somebody had sexually assaulted you in the park one time?

        [The Witness]:            No.

                                                ****

        [The Defense]:     I want to ask about a sexually transmitted
        disease [(“STD”)].

        [The State]:              How is that relevant, Judge?

                                                ****

        [The Court]:        With regard to the STD, what do we know
        about, what’s the facts?

        [The State]:        She had an STD at some point. That’s when
        she alleged that [Smith] had touched her. She at some point said
        there was somebody maybe at a park, she was never specific
        about that, and that was the end of that.

        [The Court]:         So, what I’m trying to understand is, I still
        don’t know enough about it. I mean, I’ve never, I don’t think
        I’ve seen the reports.

        [The State]:              No.

                                                ****



Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 11 of 29
        [The State]:          There’s never anything between an STD and
        [Smith] and what she said about the park. So they’re throwing a
        lot of things at her. How can she decipher that?

        [The Court]:              That kind of helps me, because is it links to
        the (inaudible).

        [The State]:              No.

        [The Defense]:            Yes.

        [The Defense]:            Yes. She accused (inaudible) another man.

        [The State]:        There was no link. I mean, nothing came out
        in the test. There was [sic] no results. There were [sic] no
        paperwork from that test.

        [The Court]:        Here’s the question. Did she - how did we
        find out she had an STD?

        [The State]:        Her mom found out when she was close to
        her mom. I think they went to a doctor and they were told that
        she had chlamydia and then her mom decided later on to have
        everybody from the household get tested. However, [Smith]
        never showed mom like results from a test, reports or anything,
        just said something along the lines of I called and they told me I
        didn’t have it. And that was the end of that.

        [The Court]:              He was never tested, do we know?

        [The State]:              Exactly that we know of. Exactly. All we
        have is his word.

        [The Court]:        Once there’s this report, the doctor finds her
        with chlamydia and he asks everybody in the family to be tested,
        right, what does she say about where any such contact —

        [The State]:              [Smith].

        [The Court]:              — might have been responsible for it?

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 12 of 29
        [The State]:              [Smith].

        [The Court]:              Where’s this man in the park?

        [The State]:        At some point, she mentions something
        about the park, but she never gave her mom a name or anything
        like that. And the way I read that —

        [The Court]:              Details of that. Can I see it?

        [The State]:              Is that the report you’re using?

        [The Defense]:            (Inaudible) get copies made and then
        (inaudible).

                                                ****

        [The Court]:              Sure. Okay. Is this the whole report?

        [The State]:              I believe so, yes.

        [The Defense]:            I believe so, too.

        [The Court]:        Okay. So, how do we know, I mean, what
        else do we know about this. Because you’re saying that she later
        said it wasn’t a man in a park it was instead —

        [The State]:         Right. And that’s from her later when she
        was forensically interviewed for this case, they asked her
        specifically about that report. And in there, she says it was
        always [Smith].

        [The Court]:         This is — it is and it isn’t. It becomes
        admissible if she’s seen it and it wasn’t true, it was really [Smith].
        Then that’s admissible. If on the other hand, she said it and it
        was true that it was someone else, it is not admissible.

        [The State]:        Here’s my problem with it. It was never truly
        clarified. She never had conversations with her mom about it, so
        mom doesn’t know. The only thing that I have to go by other
        than what I ask her and she again can’t distinguish anything, in
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 13 of 29
        the forensic interview, she is specifically asked, “Do you
        remember being in a room like this before?” and she says, “Yeah,
        I think so.” And they ask her about specifics of that case, and
        she can’t deny or admit anything, then she just goes and starts
        talking about [Smith]. So there is the problem that she was, there
        was no further investigation in that.

        [The Court]:       This report is made in November of 2010.
        He wasn’t even in the house.

        [The State]:      They were dating before. They were dating
        before. They got married in 2011.

        [The Court]:              When they were dating, was he living with
        her?

        [The State]:              I don’t know.

        [The Court]:              Where is it in the interviews that she’s asked
        about this?

        [The State]:              I can get the transcript.

                                                ****

        [The State]:       It was never really clarified. That’s the thing
        is she never came out and said it was a man in a park or it was
        [Smith]. They just —

        [The Court]:              That’s why I need — it matters to me what
        she actually said.

                                                ****

        [The State]:        Right. Okay. I think it might start there or
        might start the page before that.

        [The Court]:              I don’t see anything in here about the park.

        [The State]:        Right. And that’s the thing. I don’t know if
        she just doesn’t remember, or she’s confused. That’s the extent
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 14 of 29
        that they go into being in that room before. And that’s the only
        other time she was in that room, but they just don’t talk about
        anything further, and that’s what she tells me.

        [The Court]:              Who tells you?

        [The State]:          [K.J.]. I mean, she just doesn’t — it seems
        like she just can’t remember that time in the park. She doesn’t
        deny it or admit it or talk about it. So we just don’t know if it
        was him or it was a man in a park or it was somebody else.

        [The Court]:          Well, earlier you said that she had been asked
        about it in this interview and she said the man in the park was
        [Smith].

        [The State]:              She said the prior time they talked about it
        was [Smith].

        [The Court]:              Oh. She told you that —

        [The State]:              She was asked —

        [The Court]:              — but she never said that in here?

        [The State]:              Right.

        [The Court]:         Okay. I wish we had done this before trial.
        This is the kind of thing that takes time.

        [The State]:         Yeah. I [sic] afraid, Judge, it’s going to open
        this door to something that was murky to begin with and it was
        never fully investigated the way it should have been, and so I —

        [The Court]:              (Inaudible).

        [The State]:              —don’t know if she remembers or not.

        [The Court]:       If it was or it wasn’t. I don’t know what
        happened. I don’t know what she said, and apparently all we
        know is she was in a room with pictures. You know, and we
        don’t know when in time that that was. This report was made in
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 15 of 29
        November, 2010, which makes me think that it had to have
        happened — I mean, I’m trying to understand how it got to [the
        Department of Child Protective Services (“CPS”)].

        [The Defense]:        In that report it says she came home, reported
        to her mother that some man assaulted her. Her mother waited a
        day because she said she had made prior false allegations, so she
        waited a day for her to get a sexual exam. Then there was proof
        of a positive test so then they followed up and investigated. Her
        mom says she went through a whole course of questioning, so it
        sounds like it was actually investigated.

        [The Court]:          So, I mean, where does it say she was tested
        after this interview?

        [The Defense]:            No. I think the testing leads to that.

        [The Defense]:            That’s what prompted the report.

        [The Court]:        Because this is what the mother says. This is
        what the child said. Also, it also says here “no disclosure.”

        [The Defense]:      Right. That’s because she admitted and said
        she made it all up.

        [The Court]:       It says “no disclosure.” It doesn’t say
        anywhere she made it all up. It says — where do you have
        something that has that?

        [The Defense]:     (Inaudible) when they interviewed her.
        (Inaudible) when through the whole process of being interviewed
        before she admitted that she lied and made that up.

        [The State]:              R.S. said that but not [K.J.].

        [The Court]:              Who is R.S.?

        [The State]:        I don’t know. (Inaudible). She’s trying to
        figure out who it was. I don’t know. But it doesn’t say [K.J.]
        ever lied.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 16 of 29
        [The Defense]:            We’re not privy to, we don’t have the
        interviews.

        [The Court]:            First, I’m not going to allow it. It is so, it is so
        vague, um, and in there it, it appears to be a hearsay statement by some
        person about what someone said. And then when I look further into
        the report, it says “zero disclosure” and then there is, then there
        is a part — let me have it back. This part down here, there is a
        touch and fondle that is, that is alleged, but we don’t know the
        result of this. I don’t have anything that I can point to that says this is
        true or not true other than the hearsay statement that’s in this. And so
        for that reason, I think you’ve made an offer. But I don’t see enough
        concrete information for me to be able to rule it admissible. I don’t have
        anything that shows it demonstrably false. Um. And here, here
        comes the other issue. This — how do you, how do you then
        impeach her with it if she says no? You see what I mean?
        Because in order to do that, you almost have to have a witness to
        come in to say that she did say that. And I don’t know who that
        is. I don’t know who R.S. is.

        [The Defense]:     Well, I think her mother is responding to the
        complaint against —

        [The State]:              You think that, but you don’t know that.

        [The Defense]:            (Inaudible) testifies and we have her available
        to.

        [The Court]:        I’m just saying I don’t, I don’t find enough
        information that indicates that she said — I’ve actually forgotten
        the phraseology that you used.

        [The Defense]:       Since there’s been references made to it, we
        should probably make that part of an exhibit for purposes of the
        offer to prove, and so we’ll do that. Um. I did make copies, but
        it was only the two pages. You’ve referred to several more. I’ll
        make copies of that and make our, our A. That makes sense to
        me.


Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 17 of 29
                                                ****

        [The Court]:           Okay.… [M]y ruling stands about it being
        inadmissible at this point, all right? Unless something comes more clear
        to show me that she actually said that she lied.

        [The State]:              Thank you, Judge.

                                                ****

        [The Defense]:         Judge, in terms of the offer to prove, I am
        going to make copies of the exhibit that the Court reviewed and
        reference has been made to in the Court’s ruling. I appreciate the
        wording becomes important. And so we’ll make that part of the
        record. And I suppose, in terms of offer to prove, um, I suppose
        our intent is really what we need to get on the record. We would
        like to be able to ask about the circumstances of this previous
        stuff. The Court has reviewed what we’d like to get into and you
        find that it’s not tied in close enough that would allow it. Um.
        We would like to be able to ask, ask about evidence regarding,
        um, a sexually transmitted disease. There was some association
        made to our client. We would offer, we could offer testimony
        that would challenge whether our client ever had one through
        either our client or his wife, the child’s mother. Um. Again, I
        think the Court has considered that, but those are things that we
        would have liked to have done. We appreciate the Court’s
        ruling, but we want to make sure the Court was clear on where
        we wanted to go.

        [The Court]:          My understanding is that the — at this point,
        what, there’s, there’s no connection made by the child to the
        defendant with regard to any prior report that may have been
        made. Um. That report details hearsay, um, and that hearsay, I don’t
        know who the person is that’s saying that. It’s detailed as “R.S.” I
        don’t know who that is, but that is the interpretation that person is
        putting on what they understood a situation to have been, which because
        it’s hearsay, in my mind is not enough for me to allow it. With regard
        to sexually transmitted disease, I also can’t find any — nobody is

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 18 of 29
        giving me a statement where somebody says she said that he gave
        her chlamydia or that her chlamydia came from contact with the
        defendant.

        [The State]:              No such statement exists.

        [The Court]:        Okay. So, given those, that situation, I think
        the defense did want to rephrase some of their questions, and I’m
        going to allow that, so if you want to retrieve your witness.

        [The State]:              Thank you, Judge.

                                                ****

        [The Court]:           Okay. You’re still under oath, all right? You
        still have to tell the truth, and I think that [defense counsel] has a
        few more questions for you. All right. So, try to speak up so I
        can really hear you and understand what you’re saying. Okay?

        [The Witness]:            Okay.

                                                ****

        [The Defense]:   [K.J.], did you ever tell your mother that
        someone touched you in a park?

        [The Witness]:            No.

        [The Defense]:     Did you ever tell your mother there was
        inappropriate contact between you and another family member
        besides [Smith]?

        [The Witness]:            No.

        [The Defense]:            Are you sure?

        [The Witness]:            Can you repeat that?

        [The Defense]:            In 2010, did you ever tell your mother that

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 19 of 29
        [Smith] touched you inappropriately?

        [The Witness]:            Did I tell anybody else?

        [The Defense]:            Did you tell anybody that?

        [The Court]:       Do you know what he means by “touched
        you inappropriately?”

        [The Witness]:            Mm—hm. I just don’t understand the
        question.

        [The Defense]:      In 2010, the year 2010, at that time did you
        tell anyone that [Smith] had molested you?

        [The Witness]:            I didn’t know [Smith] in 2010.

        [The Defense]:    Okay. Do you ever remember being
        interviewed around 2010 similar to how you were in this case?

        [The Witness]:            No.

        [The Defense]:      Okay. Um. And do you ever remember
        contracting a sexually transmitted disease around 2010?[2]

        [The Witness]:            Yeah. From [Smith].

        [The Defense]:            From [Smith]?

        [The Witness]:            Yes.

        [The Defense]:            Okay. Did you tell anyone that he was the


2
  The record is not clear exactly when K.J. allegedly contracted the STD. Thus, this statement
is not inconsistent with her prior testimony as it is possible that she contracted it at some point
“around” 2010, such as 2011.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 20 of 29
        source of that?

        [The Witness]:     My mom took me but the doctor said it
        wasn’t contagious or anything.

        [The Defense]:            Okay. Did you tell anyone else about that?

        [The Witness]:            No.

        [The Defense]:            All right.

        [The Defense]:            Judge, can I have just a moment?

        [The Court]:        Sure. Did you ever have to be interviewed
        by, uh, in a room where they had pictures of like a boy and a girl
        without clothes on?

        [The Witness]:            Yes.

        [The Court]:              Okay. When did that happen, if you
        remember?

        [The Witness]:    That was when [Smith] had told CPS that my
        brother touched me inappropriately.

        [The Court]:              So, the defendant told CPS your brother had
        touched you?

        [The Witness]:            Yes.

        [The Court]:              Is there a reason he would tell that?

        [The Witness]:            No. Him and my brother never really liked
        each other.

        [The Court]:              Okay. So, did you, were you asked about
        that?

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 21 of 29
               [The Witness]:            Yes.

               [The Court]:              And what did you say?

               [The Witness]:            I said no.

               [The Court]:       You said that your brother did not do that?
               Okay. Was there a time ever when you were asked about being
               in a park and someone touching you under your bra?

               [The Witness]:            No.

               [The Court]:              You don’t remember that?

               [The Witness]:            No.

               [The Court]:       Okay. Were you ever, um, talking to CPS
               anytime other than about [Smith]?

               [The Witness]:     No. Except for that they told me that he told
               that my brother inappropriate [sic] touched me.

               [The Court]:              Okay.


       Tr. pp. 109-30 (emphases added).


[20]   Defense counsel introduced the CPS report that was discussed during the

       above-quoted exchange. This report, which was not certified, was allegedly

       created on November 3, 2010. The report was prepared by an individual

       named Deanna D. Burns and states, in relevant part, as follows:

               RS states [K.J.] reported last night … to her mother that she was
               touched inappropriately by a strange man while at the park

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 22 of 29
               yesterday. RS states [K.J.] said she was touched and rubbed on
               the leg by the man. RS states [K.J.] was asked if anything else
               happened and she said no. RS states [K.J.] later said that he “put
               it in her butt.” RS states the mother did not ask for clarification
               of what the strange man put in her butt.… RS states that mother
               stated that [K.J.] has a history of making allegations that she had
               been sexually perped on before by her eldest brother. RS states
               [K.J.] went through the whole process of being interviewed
               before she admitted that she lied and made the whole thing up.
               RS states the mother said this was about two years ago. RS
               states the mother said this is why she waited until this morning
               before bringing [K.J.] to the hospital. RS states [K.J.] told a
               doctor that the guy was at the park and that she went to a home
               with the guy and her friend. RS states the family just moved into
               the home October 1st. RS states [K.J.] hasn’t really had time to
               make friends and she could not give the friend’s name. RS states
               the mother stated that [K.J.] had not mentioned anything about
               going to anyone’s house before.


       Defendant’s Ex. A. Burns, a CPS case manager, indicated that the report was

       “recommended for assessment.” Defendant’s Ex. A. The report further

       indicated that the CPS decision was to “Investigate.” Defendant’s Ex. A. The

       report contained no indication of who “RS” was.


[21]   Upon review, we concur with the trial court’s assessment that Defendant’s

       Exhibit A contained vague, hearsay information from an unknown source

       which could not be relied upon to prove that K.J. had made prior false claims of

       sexual molestation. To the contrary, the report indicates that although RS

       indicated that K.J. had made previous false statements, CPS decided to further

       investigate the matter. Defense counsel did not attempt to introduce any

       information relating to the outcome of CPS’s investigation.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 23 of 29
[22]   K.J. consistently testified that she had not made prior false accusations of

       sexual molestation and the defense failed to meet its burden of proving that any

       alleged prior accusations were “demonstratively false.” As such, we conclude

       that the trial court did not abuse its discretion by prohibiting the defense from

       presenting evidence which the defense claimed would show that K.J. had made

       prior false accusations of sexual misconduct.


                               II. Sufficiency of the Evidence
[23]   Smith also contends that the evidence is insufficient to sustain his conviction for

       Level 1 child molesting as was alleged in Count V.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. 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. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 24 of 29
       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).


[24]   Count V alleges that he committed the offense of Level 1 felony child molesting

       by performing or submitting to sexual conduct with K.J. at some point between

       July 1, 2014 and December 27, 2014. In challenging his conviction for Level 1

       felony child molesting, Smith argues, and the State concedes, that there is no

       evidence in the record that any sexual conduct occurred between K.J. and

       Smith within the charged time frame. The State further concedes that Smith’s

       conviction for Level 1 felony child molesting as charged in Count V should be

       vacated.


[25]   We must agree that given the complete lack of any evidence suggesting that

       Smith committed acts upon or submitted to acts by K.J. during the time frame

       charged in Count V, Smith’s conviction under Count V and the corresponding

       thirty-year sentence must be vacated. We conclude, however, that, as the State

       correctly notes, because the thirty-year sentence imposed in relation to Count V

       was ordered to run concurrently to the forty-year sentence imposed in relation

       to the unchallenged Count IV, vacating Smith’s conviction and sentence in

       Count V does not alter Smith’s overall sentence.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 25 of 29
                             III. Appropriateness of Sentence
[26]   Smith last contends that his aggregate eighty-four-year sentence is

       inappropriate.3 In challenging the appropriateness of his sentence, Smith asserts

       that while it “cannot be said that these were not grievous offenses or that [his]

       character is flawless,” “the offenses, despite their grievousness, and his

       character, despite its flaws, do not justify the harsh sentence imposed here.”

       Appellant’s Br. p. 21. We disagree.


[27]   Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “‘concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).




       3
         We again note that our conclusion that Smith’s conviction and sentence under Count V
       should be vacated does not affect his overall aggregate sentence as it was ordered to run
       concurrently to the sentence imposed for his unchallenged conviction under Count IV.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 26 of 29
[28]   With respect to the nature of Smith’s offenses, the record demonstrates that

       Smith violated a position of trust by repeatedly molesting his two young step-

       daughters. K.J. was eleven years old and M.K. was eight years old,

       respectively, when Smith began molesting the girls. Following the conclusion

       of one instance of misconduct, Smith gave K.J. “some money and some food”

       and called her a “ho.” Tr. pp. 92, 93. Smith also threatened M.K. that he

       would kill her family if she told anyone about the molestation. In its oral

       sentencing statement, the trial court detailed the severe negative impact suffered

       by the girls as a result of Smith’s actions. Given the circumstances surrounding

       Smith’s actions, we believe that the State accurately describes said actions as the

       “ruthless exploitation” of his step-daughters’ “vulnerability.” Appellee’s App.

       p. 38.


[29]   With respect to Smith’s character, the record demonstrates that Smith has an

       extensive criminal history. This criminal history includes juvenile adjudications

       for what would have been Class D felony theft and Class B misdemeanor

       disorderly conduct if committed by an adult. Smith’s criminal history also

       includes the following convictions: two counts of Class C felony battery, two

       counts of Class C felony carrying a handgun without a license, Class D felony

       theft, Class D felony possession of cocaine, Class D felony dealing in

       marijuana, Class D felony resisting law enforcement, two counts of Class A

       misdemeanor battery, Class A misdemeanor carrying a handgun without a

       license, Class A misdemeanor resisting law enforcement, and two counts of

       Class A misdemeanor driving while license suspended with a prior conviction.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 27 of 29
       Smith has also violated the terms of his probation on at least one occasion.

       Further, between June of 1995 and January of 2008, Smith was cited for fifty-

       four “prison conduct incidents.” Appellant’s App. Vol. III, p. 10. These

       citations indicated that Smith’s prison misconduct included, but was not limited

       to, incidents involving sexual conduct, battery, sexual assault, and being a

       habitual conduct rule violator.


[30]   The fact that Smith has provided assistance to his mother and maintained some

       contact with and supported his own children, does not alter the fact that Smith

       has also proven to be a violent individual who has a propensity to commit

       violent acts upon others. A number of his prior convictions resulted from gun

       violence. In the instant matter, Smith violated a position of trust by repeatedly

       molesting his two young step-daughters. His substantial criminal history

       indicates that Smith has not only contempt for the criminal justice system, but

       also contempt for the rights and safety of others. Moreover, the Marion County

       Probation Department indicated that a risk assessment of Smith placed him “in

       the HIGH category to re-offend.” Appellant’s App. Vol. III, p. 16. As such, we

       conclude that Smith has failed to prove that his sentence is inappropriate in

       light of the nature of his offenses and his character.



                                               Conclusion
[31]   In sum, we conclude that (1) the trial court did not abuse its discretion in

       excluding certain proffered evidence from trial, (2) Count V must be vacated as

       it was not supported by sufficient evidence, and (3) Smith’s aggregate eighty-

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 28 of 29
       four-year sentence is not inappropriate in light of the nature of his offenses and

       his character.


[32]   The judgment of the trial court is affirmed in part and reversed in part.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1156 | January 31, 2017   Page 29 of 29
