Timothy Dale Alford v. State of Indiana (mem. dec.) ( 2019 )

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.
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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.
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[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
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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.
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[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.
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