John David Cox, III v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Dec 18 2018, 10:11 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brandon E. Murphy Curtis T. Hill, Jr.
Cannon Bruns & Murphy Attorney General of Indiana
Muncie, Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John David Cox, III, December 18, 2018
Appellant-Defendant, Court of Appeals Cause No.
18A-CR-1428
v. Appeal from the Blackford Circuit
Court
State of Indiana, The Honorable Dean A. Young,
Judge
Appellee-Plaintiff.
Trial Court Cause No. 05C01-1712-
F4-330
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, John Cox (Cox), appeals his conviction for child
molesting, a Level 4 felony, Ind. Code § 35-42-4-3(b).
[2] We affirm.
ISSUE
[3] Cox presents one issue on appeal, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to support his child
molesting conviction because the victim’s testimony was incredibly dubious.
FACTS AND PROCEDURAL HISTORY
[4] In April 2015, Cox, R.C. (Mother), and Mother’s four children, including M.N.
born in 2007, moved to a house on Walnut Street, in Hartford City, Indiana.
Cox is not M.N.’s biological father. In 2017, M.N.’s family, as well as Cox,
moved out of the Walnut Street house and moved into a two-story house on
Elm Street in Hartford City, Indiana.
[5] While residing in the Elm Street house, Cox molested M.N. twice, once in her
bedroom and another time in the living room. During the bedroom incident,
M.N. had been watching television with her brother until they fell asleep. M.N.
was awakened by Cox, who pulled her short to the side, and then Cox put his
finger inside her vagina. Cox stopped when he heard Mother calling him.
During the second incident, M.N. was asleep on the couch in the living room.
M.N. was awakened by Cox who was touching her vagina with his fingers and
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licking her vagina with his mouth. Meaning to escape, M.N. made an excuse
that she wanted to use the bathroom. Cox followed M.N. to the bathroom and
ordered M.N. to “squat naked” over his cellphone so that he could take a video
of her vagina. (Appellant’s App. Vol. II, p. 23). Cox explained that he was
taking the video since he thought M.N. had “a bruise” in her vagina. (Tr. Vol.
II, p. 145). Cox threatened to hurt M.N. if she reported his actions to anyone.
[6] In August of 2017, M.N. disclosed the molestations to her aunt. M.N.’s aunt,
in turn, contacted the police. On August 28, 2017, M.N. was interviewed at a
Child Advocacy Center. During the interview, M.N. stated that she was eight-
years-old when Cox molested her while she and her family were residing at the
Walnut Street house. According to M.N., Cox molested her at least five times
in the Walnut Street house. M.N. also alleged that she was about nine-years-
old when Cox molested her on two occasions in the Elm Street house.
[7] On December 4, 2017, the State filed an Information, charging Cox with eight
Counts of child molesting, Level 4 felonies. On February 9, 2018, Cox filed a
motion to dismiss some of the charges on the basis that they were duplicative.
On March 12, 2018, the trial court conducted a hearing on Cox’s motion. The
following day, the trial court issued an order denying Cox’s motion, but stated
that it would reconsider its denial at the close of discovery. On April 2, 2018,
following discovery, Cox moved the trial court to reconsider its denial on his
motion to dismiss some of the duplicative charges. On May 2, 2018, after a
hearing, the trial court granted Cox’s motion by dismissing “Counts 2, 3, 4, 5,
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7, and 8.” (Appellant’s App. Vol. II, p. 119). For purposes of trial, the court
ordered that Count VI be renumbered as Count II.
[8] On May 15, 2018, a jury trial was conducted. M.N. testified that while residing
at the Elm Street house, Cox molested her once in the living room and once in
her bedroom. At the close of the evidence, the jury acquitted Cox on Count I,
but found him guilty on Count II. On June 11, 2018, the trial court conducted
a sentencing hearing and then ordered Cox to serve a six-year term in the
Department of Correction.
[9] Cox now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] Cox’s sole argument on appeal is that the evidence is insufficient to support his
conviction. When reviewing a claim of insufficient evidence, it is well
established that our court does not reweigh evidence or assess the credibility of
witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we
consider all of the evidence, and any reasonable inferences that may be drawn
therefrom, in a light most favorable to the verdict. Id. We will uphold 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.’” Id. (quoting Davis v. State, 813
N.E.2d 1176, 1178 (Ind. 2004)).
[11] To convict Cox of Level 4 felony child molesting conviction, the State was
required to establish that he, “with a child under fourteen (14) years of age,
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perform[ed] or submit[ted] to any fondling or touching, of either [M.N. or
himself], with intent to arouse or to satisfy the sexual desires of either [M.N. or
himself.]” I.C. § 35-42-4-3(b). Cox does not argue that specific elements are
unsupported by sufficient evidence; instead, he argues that the rule of incredible
dubiosity renders the evidence insufficient as a whole.
[12] In general, the uncorroborated testimony of the victim is sufficient to sustain a
conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2002). We may make an
exception, however, when that testimony is incredibly dubious. The incredible
dubiosity rule allows the reviewing court to impinge upon the factfinder’s
responsibility to judge the credibility of 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)).
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[13] M.N. and Mother were the only testifying witnesses for the State. Mother’s
testimony related to how many children she had, and where she and Cox had
resided during the existence of their relationship; but there was no inquiry as to
the child molesting claims made against Cox. As such, Mother’s testimony
would likely have been insufficient to find Cox guilty of the charged offenses.
Thus, the State only had M.N.’s testimony, who was the sole witness to the
child molesting incidents, to prove the elements of the crimes against Cox.
With that said, we find that the first Moore factor is satisfied. Furthermore, we
note the absence of circumstantial evidence to support Cox’s conviction and
conclude that the third Moore factor is equally satisfied.
[14] Nonetheless, Cox must show the remaining Moore factor, whether M.N.’s
testimony was inherently contradictory, equivocal, or the result of coercion, is
satisfied. See Moore, 27 N.E.3d at 758, (holding that each of the three factors
must be shown in order to invoke the incredible dubiosity rule.) We note that
there is no evidence—and Cox does not argue—that M.N.’s testimony was the
result of coercion. Cox primarily directs us to purported inconsistencies
between M.N.’s trial testimony and the statements she made before trial. For
example, Cox notes that at trial, M.N. admitted that she had lied to law
enforcement that Cox had covered her mouth and threatened her during the
molestation incidents. Cox continues to argue that M.N.’s pretrial statements
are littered with inconsistent accounts as to how many times Cox molested her,
“about who was present during the events,” or “whether the events occurred in
the fall or just before her tenth birthday.” (Appellant’s Br. p. 13).
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[15] In the instant case, Cox was charged with two Level 4 felony child molesting
offenses. In Count I, the State alleged, in part, that “between July 11, 2015 and
July 11, 2016 . . . Cox did perform or submit to fondling or touching [] M.N, a
child under the age of fourteen years, to wit: . . .with intent to arouse or satisfy
sexual desires of the child or defendant.” (Appellant’s App. Vol. II, p. 224). As
for Count II, the State claimed, in pertinent part, that “between July 11, 2016
and January 31, 2017. . . Cox did perform or submit to fondling or touching []
M.N, a child under the age of fourteen years, to wit: . . .with intent to arouse or
satisfy sexual desires of the child or defendant.” (Appellant’s App. Vol. II, p.
225). At trial, Mother testified that as of April 2015, she, Cox, and her
children, including M.N., were living at the Walnut Street house. In January of
2017, Mother’s family moved to the Elm Street house. It appears from the
charging information, Count I related to the molestation that occurred at the
Walnut Street house, and Count II related to the molestation allegations that
occurred at the Elm Street house. The jury acquitted Cox on Count I but
convicted him on Count II. See Hoover v. State, 918 N.E.2d 724, 730 (Ind. Ct.
App. 2009) (holding that an acquittal on one count and a conviction on another
count survives a claim of inconsistency if there is sufficient evidence to support
the conviction), trans. denied.
[16] At trial, M.N. unequivocally and consistently testified that when she was living
in the Elm Street house, Cox molested her once in her bedroom and once in the
living room. For the bedroom incident, M.N. was asleep, and she was
awakened by Cox who pulled her shorts aside. Referring to her vagina as “hoo-
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hoo,” M.N. testified that Cox touched the “inside” of her vagina with his
“fingers.” (Tr. Vol. II, p. 72). As for the living room incident, M.N. testified
that Cox touched her “[h]oo-hoo inside” with “his hand and mouth.” (Tr. Vol.
II, p. 73). M.N.’s clear, unequivocal testimony establishes the necessary
elements of the charged offense. See Fajardo v. State, 859 N.E.2d 1201, 1209
(Ind. 2007). (holding that despite the inconsistencies from an eleven-year-old
witness, the child’s clear and unequivocal testimony established the necessary
elements and the incredible dubiosity rule did not apply).
[17] Although Cox focuses on differences between M.N.’s statements to the Child
Advocacy Center and her deposition, M.N.’s trial testimony was not internally
inconsistent or inherently contradictory regarding the elements of the crime
alleged. We reiterate that the second prong is satisfied “only when the witness’s
trial testimony was inconsistent within itself, not [when] it was inconsistent
with other evidence or prior testimony.” Smith, 34 N.E.3d at 1221. In other
words, discrepancies between a witness’ testimony and earlier statements do
not render testimony incredibly dubious. Holeton v. State, 853 N.E.2d 539, 541-
42 (Ind. Ct. App. 2006). M.N.’s testimony on the important facts regarding
Cox’s molestation on Count II remained consistent. Accordingly, we conclude
that M.N.’s testimony was not inherently improbable or contradictory, thus, the
second Moore factor has not been established and we find that the incredible
dubiosity rule does not apply.
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CONCLUSION
[18] For the reasons stated, we conclude that the incredible dubiosity rule does not
apply, and M.N.’s testimony was sufficient to support Cox’s child molesting
conviction. Therefore, we affirm.
[19] Affirmed.
[20] Kirsch, J. and Robb, J. concur
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