Adil Rafiq v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 30, 2025
• Docket: 25A-CR-00269
• Status: Published

Opinion

FILED Oct 30 2025, 8:57 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Adil Rafiq, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

October 30, 2025 Court of Appeals Case No. 25A-CR-269 Appeal from the Marion Superior Court The Honorable Jennifer Prinz Harrison, Judge Trial Court Cause No. 49D20-2301-F1-1629

Opinion by Judge May Judges Mathias and Bradford concur.

May, Judge.

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 1 of 11 [1] Adil Rafiq appeals his convictions of Level 1 felony child molesting 1 and Level

4 felony child molesting, 2 as well as his aggregate sentence of 25 years. Rafiq

argues that his convictions violate double jeopardy and that his sentence is

inappropriate. We affirm.

Facts and Procedural History [2] In January 2023, 12-year-old L.P. lived with her aunt, cousins, brother, and

grandmother. Rafiq, who was her grandmother’s 35-year-old boyfriend, also

stayed in the house. One night after eating dinner, L.P. went to her

grandmother’s bedroom to lie down and watch television with her two-year-old

cousin. L.P. fell asleep wearing jeans, underwear, and a t-shirt. When L.P.

woke up, Rafiq was in the bed and she was facing him. Her pants and

underwear were halfway to her knees. Rafiq had one hand underneath her shirt

and was touching her left breast, and he was digitally penetrating L.P.’s vagina

with his other hand. L.P. heard “hard breathing” coming from Rafiq. (Tr. Vol.

II at 148.) L.P. was scared, but she pushed Rafiq away from her and ran to her

brother’s room. L.P. told her brother what Rafiq had done and then she told

her aunt, who called the police.

[3] After police arrived, L.P. went to the police station for an interview and to

Riley Hospital for a forensic examination. A nurse performed a sexual assault

1 Ind. Code § 35-42-4-3(a). 2 Ind. Code § 35-42-4-3(b).

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 2 of 11 examination, including collecting DNA samples from L.P.’s body. Police

collected a swab of Rafiq’s cheek to collect his DNA and also collected samples

from underneath Rafiq’s fingernails. DNA analysis confirmed Rafiq’s DNA

was on L.P.’s left breast. Male DNA was found on L.P.’s external and internal

genitalia, but the amounts were insufficient to conduct a full DNA analysis.

L.P.’s DNA was found on Rafiq’s left hand and underneath the fingernails on

Rafiq’s right hand.

[4] The State charged Rafiq with Level 1 felony child molesting and Level 4 felony

child molesting. 3 A jury found Rafiq guilty of both crimes. On January 22,

2025, the trial court sentenced Rafiq to concurrent terms of 25 years for Level 1

felony child molesting and 4 years for Level 4 felony child molesting.

Discussion and Decision 1. Double jeopardy [5] Rafiq argues that his convictions of both Level 1 felony child molesting and

Level 4 felony child molesting violate Indiana’s prohibition against double

jeopardy. In Wadle v. State, our Indiana Supreme Court established a

framework for analyzing substantive double jeopardy claims “when a

defendant’s single act or transaction implicates multiple criminal statutes[.]”

3 The State also charged Rafiq with Level 6 felony battery of a person under 14 years old, Ind. Code § 35-42- 2-1, but the State dismissed that charge prior to trial.

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 3 of 11 151 N.E.3d 227, 235 (Ind. 2020). Our review of such claims is de novo. A.W.

v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).

[6] In the first step of the test, we look at the statutory language of the crimes at

issue. Wadle, 151 N.E.3d at 248. “If the language of either statute clearly

permits multiple punishment, either expressly or by unmistakable implication,

the court’s inquiry comes to an end and there is no violation of substantive

double jeopardy.” Id. (footnote omitted). Here, neither Indiana Code section

35-42-4-3(a) nor section 35-42-4-3(b) clearly permits multiple punishments for

multiple acts of molestation against the same victim in a single encounter. See

Carranza v. State, 184 N.E.3d 712, 716 (Ind. Ct. App. 2022) (holding neither

subsection (a) nor subsection (b) of Indiana Code section 35-42-4-3 clearly

permitted multiple punishments). We therefore proceed to step two.

[7] In the second step of the analysis, we “‘apply our included-offense statutes to

determine statutory intent.’” A.W., 229 N.E.3d at 1066 (quoting Wadle, 151

N.E.3d at 248) (emphasis added in A.W.). Trial courts may not enter

convictions of “both an offense and an ‘included offense.’” Wadle, 151 N.E.3d

at 248 (citing Ind. Code § 35-38-1-6). An “included offense” is a crime that:

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 4 of 11 (3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

Ind. Code § 35-31.5-2-168. “‘If neither offense is an included offense of the

other (either inherently or as charged), there is no violation of double jeopardy’

and the analysis ends – full stop.” A.W., 229 N.E.3d at 1067 (quoting Wadle,

151 N.E.3d at 248). As we undertake the “as charged” portion of the analysis,

we consider “only the facts as presented on the face of the charging

instrument.” Id. (emphasis removed).

[8] Herein, Rafiq was charged with Level 1 felony child molesting and Level 4

felony child molesting, which are not inherently included in one another based

on the statutory definitions. Compare Ind. Code § 35-42-4-3(a) (requiring

“sexual intercourse or other sexual conduct[,]” but not “fondling or touching”

or “intent to arouse or to satisfy the sexual desires”) with Ind. Code § 35-42-4-

3(b) (requiring “fondling or touching” and “intent to arouse or to satisfy the

sexual desires[,]” but not “sexual intercourse or other sexual conduct”). As for

the “as charged” analysis, the charging information for Rafiq’s Level 1 felony

alleged:

On or about January 14, 2023, ADIL RAFIQ, a person of at least twenty-one (21) years of age, did knowingly perform other

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 5 of 11 sexual conduct as defined in Indiana Code Section 35-31.5-2- 221.5[ 4] with L.P., a child under the age of fourteen years (14).

(App. Vol. II at 20) (footnote added). Then, for his Level 4 felony, the

information alleged:

On or about January 14, 2023, ADIL RAFIQ did perform fondling or touching with L.P., a child under the age of fourteen years, with the intent to arouse or satisfy the sexual desires of Adil Rafiq or L.P.

(Id.) The State chose to not include factual allegations about the specific

conduct that constituted “other sexual conduct” or “fondling or touching.”

Because the means used to commit “other sexual conduct” might also establish

molestation by “touching or fondling,” we apply a presumption in the

defendant’s favor and find a double jeopardy violation that the State may rebut

in Step 3. See A.W., 229 N.E.3d at 1069 (establishing presumption in

defendant’s favor when charging information is ambiguous). We therefore

proceed to Step 3.

[9] At Step 3, we “‘examine the facts underlying those offenses, as presented in

the charging instrument and as adduced at trial . . . to determine whether a

defendant’s actions were ‘so compressed in terms of time, place, singleness of

4 “Other sexual conduct” is defined as “an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.” Ind. Code § 35-31.5-2-221.5.

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 6 of 11 purpose, and continuity of action as to constitute a single transaction.’” Id. at

1071 (quoting Wadle, 151 N.E.3d at 249).

If the underlying facts reveal the two offenses are indeed “separate,” there is no Wadle violation, “even if one offense is, by definition, ‘included’ in the other.” That said, if the “facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than as cumulative) sanctions.”

Id. (internal citations removed).

[10] Rafiq claims the State failed to prove his actions were separate offenses because

he simultaneously used both hands to molest L.P. for approximately five

seconds. We cannot agree that there was only one offense. While Rafiq’s two

forms of touching were simultaneous, Rafiq committed two distinct types of

child molesting: one by digitally penetrating L.P.’s vagina, which constituted

“other sexual conduct” for the Level 1 felony; and the other by rubbing her

breast, which was the “touching or fondling” required for the Level 4 felony.

Each act was directed at a completely different body part and constituted a

distinct violation of the child molesting statute, pursuant to definitions that

were not included in one another, and we accordingly hold Rafiq’s convictions

of both Level 1 felony and Level 4 felony child molesting do not constitute

double jeopardy as defined in Wadle and A.W. See, e.g., Sorgdrager v. State, 208

N.E.3d 646, (Ind. Ct. App. 2023) (holding conviction of Level 1 and Level 4

felony child molesting was not double jeopardy), trans. denied.

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 7 of 11 2. Sentence Inappropriateness [11] Rafiq next argues his aggregate 25-year sentence is inappropriate under Indiana

Appellate Rule 7(B). Pursuant to Indiana Appellate Rule 7(B), we may revise a

sentence “if, after due consideration of the trial court’s decision, [this] Court

finds that the sentence is inappropriate in light of the nature of the offense and

the character of the offender.” Because sentencing is a function of the trial

court, its judgment should receive “‘considerable deference.’” Oberhansley v.

State, 208 N.E.3d 1261, 1267 (Ind. 2023) (quoting Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008)). This deference can only be “‘overcome by compelling

evidence portraying in a positive light the nature of the offense’ and ‘the

defendant’s character.’” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting

Oberhansley, 208 N.E.3d at 1267). Appellate review of a sentence is “to leaven

the outliers . . . but not to achieve the perceived ‘correct’ result in each case.”

Nicholson v. State, 221 N.E.3d 680, 684 (Ind. Ct. App. 2023) (quoting Cardwell,

895 N.E.2d at 1225), trans. denied. The burden of proving a sentence is

inappropriate falls to the defendant. Littlefield v. State, 215 N.E.3d 1081, 1089

(Ind. Ct. App. 2023), trans. denied.

[12] Our review is “holistic” and takes into consideration “the whole picture before

us.” Lane, 232 N.E.3d at 127. Appellants need not prove their sentence is

inappropriate for both their character and offense, but “to the extent the

evidence on one prong militates against relief, a claim based on the other prong

must be all the stronger to justify relief.” Id. Our determination “turns on our

sense of the culpability of the defendant, the severity of the crime, the damage

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 8 of 11 done to others, and myriad other factors that come to light in a given case.”

Cardwell, 895 N.E.2d at 1224. “Our goal is to determine whether the

appellant’s sentence is inappropriate, not whether some other sentence would

be more appropriate. We consider not only the aggravators and mitigators

found by the trial court, but also any other factors appearing in the record.”

George v. State, 141 N.E.3d 68, 73 (Ind. Ct. App. 2020) (internal citations

omitted), trans. denied.

[13] Rafiq was convicted of two crimes – a Level 1 felony with a minimum sentence

of 20 years, an advisory sentence of 30 years, and a maximum sentence of 40

years, Ind. Code § 35-50-2-4(b), and a Level 4 felony with a minimum sentence

of two years, an advisory sentence of 6 years, and a maximum sentence of 12

years, Ind. Code § 35-50-2-5.5. The trial court imposed 25 years for the Level 1

felony and 4 years for the Level 4 felony, both of which are between the

minimum and the advisory, and the trial court ordered the sentences served

concurrently. Our legislature selected the advisory sentence as the ‘starting

point’ for sentencing. Kincaid v. State, 171 N.E.3d 1036, 1042 (Ind. Ct. App.

2021), trans. denied. “A defendant who receives an advisory sentence has a

particularly heavy burden to prove it inappropriate under Appellate Rule 7(B).”

Id. It follows, then, that Rafiq, whose sentence is below the advisory, should

have an even harder time demonstrating his sentence is inappropriate.

[14] The nature of Rafiq’s offenses does not demonstrate that his sentence is

inappropriate. While L.P. was asleep, Rafiq partially removed her clothing and

began molesting her, and he only stopped molesting her because L.P. woke up

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 9 of 11 and pushed him away from her. Rafiq claims his sentence is too long because

his crimes were “brief and simultaneous[.]” (Br. of Appellant at 13.) However,

we do not know how long he molested L.P. because she was asleep when he

began molesting her. Had she not awakened, Rafiq’s crimes probably would

have continued and they may have gone undetected. Although his two crimes

may have been simultaneous, the fact remains that Rafiq committed two

different forms of child molesting, by fondling L.P.'s breast and digitally

penetrating her vagina, and the trial court appears to have accounted for the

simultaneity by ordering the sentences served concurrently. Moreover, as the

trial court found, Rafiq committed his offense in the presence of a two-year-old

child. Given all this, we cannot say a sentence mid-way between the minimum

and advisory is inappropriate for Rafiq’s crimes.

[15] Nor has Rafiq demonstrated his sentence is inappropriate for his character. To

obtain relief under Appellate Rule 7(B) based on one’s character, a defendant

must show “substantial virtuous traits or persistent examples of good

character.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The trial court

found as mitigators related to Rafiq’s character that Rafiq had “no history of

delinquency or criminal activity” and that “incarceration [would] result in a

hardship to [his] dependents.” (Tr. Vol. III at 241.) These mitigators are

presumably why the trial court imposed a sentence less than the advisory, and

we do not see them as justifying a further reduction of his sentence. We also

note that Rafiq lived with the woman he was dating, her daughter, and four of

her grandchildren, and his crimes against L.P. violated the trust that entire

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 10 of 11 family had placed in him by allowing him into their home. While the record

indicates Rafiq has dependents who depend on him financially, Rafiq has not

seen his own children – who were only one year younger than L.P. – since

2013. Rafiq has not directed us to such “substantial virtuous traits or persistent

examples of good character” that we find his twenty-five-year sentence

inappropriate for his character.

Conclusion [16] Rafiq’s convictions of Level 1 felony child molesting and Level 4 felony child

molesting did not subject Rafiq to double jeopardy, and his 25-year sentence is

not inappropriate in light of the nature of his offenses and his character. We

accordingly affirm.

[17] Affirmed.

Mathias, J., and Bradford, J., concur.

ATTORNEY FOR APPELLANT Josiah Swinney Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 25A-CR-269 | October 30, 2025 Page 11 of 11