James O. Reichenbaugh v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY L. FUMAROLO GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
FILED
Indianapolis, Indiana
Jun 12 2012, 9:11 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
JAMES O. REICHENBAUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1110-CR-492
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1012-FA-60
June 12, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant James O. Reichenbaugh appeals his convictions of three
counts of child molesting1 as class A felonies; two counts of child molesting2 as class C
felonies; two counts of sexual misconduct with a minor3 as class B felonies; and one
count of sexual misconduct with a minor4 as a class C felony. Specifically,
Reichenbaugh argues that there is insufficient evidence to support his convictions
because the fourteen-year-old victim’s testimony is incredibly dubious. Reichenbaugh
also contends that his sentence is inappropriate given the nature of the offenses and his
character.
Concluding that the incredible dubiosity rule does not apply in this case, and that
Reichenbaugh was properly sentenced, we affirm the judgment of the trial court.
FACTS
In 2002, when B.T. was six years old, her mother, Cynthia, married
Reichenbaugh. When B.T. was ten years old, she and Reichenbaugh often stayed up late
together watching television after Cynthia went to bed. One night, Reichenbaugh rubbed
B.T.’s stomach both on top of and underneath her clothes. Over time, the physical
contact progressed to Reichenbaugh rubbing B.T.’s vagina, placing his finger in it, and
making B.T. touch his penis. Eventually, Reichenbaugh and B.T. began engaging in oral
1
Ind. Code § 35-42-4-3(a).
2
I.C. § 35-42-4-3(b).
3
I.C. § 35-42-4-9(a).
4
I.C. § 35-42-4-9(a).
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sex and sexual intercourse on a regular basis. In addition, Reichenbaugh gave B.T.
cigarettes, drugs, and alcohol.
As B.T. became older, she and Reichenbaugh engaged in sexual acts in the
bathroom, a tent, the garage, and the shed. One time, while Reichenbaugh and B.T. were
driving in the country, Reichenbaugh removed his penis from his boxer shorts and had
B.T. sit on his lap facing him so that they could have sexual intercourse while he drove.
Another time, while B.T.’s mother and sister were sleeping at one end of a sectional sofa
in the living room, B.T. massaged Reichenbaugh’s penis, and Reichenbaugh placed his
finger in B.T.’s vagina while they were sitting at the other end of the sofa.
The last sexual encounter between Reichenbaugh and B.T. occurred in September
2010 when B.T. was fourteen years old. B.T. and Reichenbaugh were in the shed in their
back yard. B.T. placed a condom on Reichenbaugh’s penis, and Reichenbaugh told B.T.
to take her pants off, bend over, and grab her ankles. Reichenbaugh then inserted his
penis into B.T.’s vagina from behind. At some point, Reichenbaugh removed the
condom and placed it inside a beer can.
Throughout the years of abuse, B.T. regularly sneaked out of her bedroom window
between 2:30 and 3:00 a.m. and ran down the street to her best friend S.H.’s house. B.T.
climbed into S.H.’s open window and confided in her about what was happening with
Reichenbaugh. S.H. eventually revealed the sexual relationship between Reichenbaugh
and B.T. to another classmate, who posted statements about the abuse on B.T.’s
Facebook page. B.T.’s older sister read about the abuse and confronted B.T. Later that
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day, B.T. revealed to her sister and mother that she and Reichenbaugh had been engaging
in sexual intercourse for years.
B.T. and her mother reported the abuse to the police, who searched the family’s
home for evidence. The police located a can with a condom in it in the trash behind the
house. DNA testing revealed that the major DNA profile on the inside of the condom
was consistent with Reichenbaugh’s DNA profile, and the major DNA profile on the
outside of the condom was consistent with B.T.’s DNA profile. Reichenbaugh, however,
accused B.T. of placing her DNA on a condom that he had used while masturbating.
A jury convicted Reichenbaugh of three counts of class A felony child molesting,
two counts of class C felony child molesting, two counts of class B felony sexual
misconduct with a minor, one count of class C felony sexual misconduct with a minor,
and contributing to the delinquency of a minor as a class A misdemeanor. At the
sentencing hearing, Reichenbaugh claimed B.T. had “set [him] up and used the system to
get [him] out of her way.” Sent. Tr. p. 11. He also blamed his convictions on a biased
court system and an ineffective trial counsel.
Following the sentencing hearing, the trial court found the following two
aggravating factors: 1) Reichenbaugh’s criminal history that included one felony
conviction in 2006 for operating while intoxicated, two misdemeanor convictions for
driving with a suspended license, and a third misdemeanor conviction for operating a
vehicle with a blood alcohol level over .15; and 2) Reichenbaugh’s violation of the
position of trust that he held with B.T. The trial court sentenced Reichenbaugh to forty
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years for each class A felony child molesting conviction, sentences to run concurrently,
and five years for each class C felony child molesting conviction, sentences to run
concurrently to each other, but consecutively to the forty years imposed for the class A
felony, for a total of forty-five years. The trial court also sentenced Reichenbaugh to
fifteen years for each class B felony sexual misconduct with a minor conviction,
sentences to run concurrently to each other but consecutively to the forty-five-year
sentence, for a total of sixty years. Lastly, the trial court ordered Reichenbaugh to serve
five years for his class C felony sexual misconduct with a minor conviction, and one year
for his class A misdemeanor contributing to the delinquency of a minor conviction,
sentences to run consecutively to each other and to the sixty-year sentence, for a total
aggregate sentence of sixty-six years. Reichenbaugh appeals his conviction and sentence.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
Reichenbaugh argues that there is insufficient evidence to support his convictions.
Reichenbaugh’s sole challenge to the sufficiency of the evidence is that B.T.’s testimony
was inherently improbable and incredibly dubious. In reviewing sufficiency of the
evidence claims, we will not reweigh the evidence or assess the credibility of the
witnesses. Cox v. State, 774 N.E.2d 1025, 1028-29 (Ind. Ct. App. 2002). We will
consider only the evidence most favorable to the judgment, together with all reasonable
and logical inferences to be drawn therefrom. Alspach v. State, 755 N.E.2d 209, 210
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(Ind. Ct. App. 2001). The conviction will be affirmed if there is substantial evidence of
probative value to support it. Cox, 774 N.E.2d at 1028-29.
Under the incredible dubiosity rule, a court will impinge on the jury’s
responsibility to judge the credibility of the witnesses only when it is confronted with
inherently improbable testimony or coereced, equivocal, wholly uncorroborated
testimony of incredible dubiosity. Altes v. State, 822 N.E.2d 1116, 1122 (Ind. Ct. App.
2005). Stated another way, when a sole witness gives inherently improbable testimony,
and there is a complete lack of circumstantial evidence, a defendant’s conviction may be
reversed. Id. However, the application of this rule is rare and limited to cases where the
sole witness’s testimony is so incredibly dubious or inherently improbable that no
reasonable person could believe it. Id.Here, Reichenbaugh contends that B.T.’s testimony that she engaged in sexual acts
with him in the bathroom, a tent, the garage, the shed, the yard, and in a car while he was
driving is inherently improbable and incredibly dubious. He further claims that B.T.’s
testimony that she massaged Reichenbaugh’s penis, and that Reichenbaugh inserted his
finger into her vagina while they were sitting in the living room at one end of the sofa
sectional while B.T.’s mother and sister napped at the other end of the sectional “runs
contrary to human experience.” Appellant’s Br. p. 9. According to Reichenbaugh, B.T.’s
“stories” are not corroborated. Appellant’s Br. p. 15.
However, the standard for dubious testimony is inherent contradiction. Id.Nowhere does Reichenbaugh explain where B.T.’s testimony is inherently contradictory.
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By claiming that he should not be convicted based solely on the testimony of B.T.,
without any corroborating testimony from other witnesses, Reichenbaugh is asking us to
reweigh the evidence. See Altes, 822 N.E.2d at 1123. This we will not do. See Cox, 774
N.E.2d at 1028-29.
We further note that B.T.’s testimony about her last sexual encounter with
Reichenbaugh in the shed was in fact corroborated by the discovery of the condom with
DNA consistent with both B.T.’s and Reichenbaugh’s DNA. Further, S.H. corroborated
B.T.’s testimony that she went to S.H.’s house in the middle of the night for years to
confide in her friend about the molestations.
The incredible dubiosity rule simply does not apply in this case, and
Reichenbaugh’s argument therefore fails. Moreover, we find from the evidence
presented that the evidence was sufficient to support Reichenbaugh’s convictions.
II. Sentence
Reichenbaugh also argues that the trial court erred in sentencing him. He
specifically argues that his sentence is inappropriate in light of the nature of the offenses
and his character. Indiana Appellate Rule 7(B) provides that we may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, we find that
the sentence is inappropriate in light of the nature of the offense and the character of the
offender. We understand and recognize the unique perspective that a trial court brings to
its sentencing decisions. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
Our principal role should therefore be to attempt to leaven the outliers, and identify some
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guiding principles for trial courts and those charged with the improvement of sentencing
statutes, but not to achieve a perceived “correct” result in each case. Cardwell v. State,
895 N.E.2d 1219, 1225 (Ind. 2008). We should focus on the forest – the aggregate
sentence – rather than the trees – consecutive or concurrent, number of counts, or length
of the sentence on any individual count. Id. The defendant bears the burden of
persuading us that the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006).
Here, with regard to the nature of the offenses, Reichenbaugh began a sexual
relationship with B.T. when she was ten years old. The relationship lasted for over four
years until B.T. told her mother and sister what had been happening. During this time,
Reichenbaugh also gave B.T. cigarettes, alcohol, and drugs.
With regard to the character of the offender, Reichenbaugh was B.T.’s stepfather
and violated a position of trust in B.T.’s life by engaging in a sexual relationship with her
for over four years. Reichenbaugh also has a prior criminal history that includes one
felony and three misdemeanor convictions. Under these facts and circumstances,
Reichenbaugh has failed to persuade us that his sixty-six year sentence is inappropriate in
light of the nature of the offenses and his character.
The judgment of the trial court is affirmed.
KIRSCH, J., and BROWN, J., concur.
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