MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 05 2017, 8:50 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Benjamin Lee, June 5, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1609-CR-2197 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1507-FA-24808
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 1 of 6 [1] Benjamin Lee appeals his convictions for three counts of Class A felony child
molesting. 1 He argues the State did not present sufficient evidence of his guilt
because A.G.’s testimony was incredibly dubious. We affirm.
Facts and Procedural History [2] Between 2002 and 2005, when A.G. was between five and eight years old,
A.G.’s mother (“Mother”) was in a relationship with Lee. During that time,
Lee would babysit A.G. while Mother was at work. On multiple occasions,
Lee forced A.G. to perform oral sex on him and once attempted to have sexual
intercourse with her. A.G. did not report the incidents at the time because she
“was scared” and “felt stupid.” (Tr. Vol. II at 78.) When A.G. was in junior
high or high school, she told Mother that Lee had molested her. A.G. did not
tell anyone else at that time because “it’s old and wouldn’t nobody believe
[her].” (Id. at 79) (errors in original). Mother did not report what A.G. told her
at that time because she “googled it and it was that the statute of limitations had
passed based on what [she] knew at the time.” (Id. at 35.)
[3] In May 2015, when A.G. was eighteen years old, Lee contacted A.G. via
telephone at her job and asked her if she remembered him and if their “secret
[was] still between [them.]” (Id. at 80.) A.G. began physically shaking after the
phone call and called Mother. A.G. contacted the police and reported the
1 Ind. Code § 35-42-4-3(a) (1998).
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 2 of 6 incidents of molestation that occurred between 2002 and 2005. Based thereon,
the State charged Lee with four counts of Class A felony child molesting.
Three of the charges alleged Lee performed or submitted to an act of criminal
deviate conduct with A.G.; the other alleged he had sexual intercourse with
her. The police arrested Lee on August 6, 2015.
[4] The trial court held a jury trial. The jury returned a guilty verdict for all but one
of the counts. On September 2, 2016, the trial court sentenced Lee to an
aggregate sentence of eighty-five years, with twenty-five years suspended.
Discussion and Decision [5] When reviewing sufficiency of evidence to support a conviction, we consider
only the probative evidence and reasonable inferences supporting the judgment.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and
not ours, to assess witness credibility and weigh the evidence to determine
whether it is sufficient to support a conviction. Id. To preserve this structure,
when we are confronted with conflicting evidence, we consider it most
favorably to the jury’s ruling. Id. We affirm a conviction unless no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Id. It is therefore not necessary that the evidence overcome every
reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference reasonably may be drawn from it to support the jury’s decision. Id. at
147.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 3 of 6 [6] To prove Lee committed Class A felony child molesting, the State had to prove
Lee was at least twenty-one years old and performed or submitted to sexual
intercourse or deviate sexual conduct with a child under fourteen years of age.
See Ind. Code § 35-42-4-3(a) (1998). Lee argues A.G.’s testimony was
incredibly dubious and, thus, the State did not present sufficient evidence that
he committed three counts of Class A felony child molesting.
[7] The “incredible dubiosity rule” applies “only when a lone witness offers
inherently contradictory testimony that is equivocal or the result of coercion
and there is a complete lack of circumstantial evidence of the appellant’s guilt.”
Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001). Because it is the jury’s role to
judge witness credibility and to weigh evidence, we cannot impinge on the
jury’s role except in the rare circumstance when testimony “runs counter to
human experience [such] that reasonable persons could not believe” it. Id.
(internal citations omitted).
[8] Lee argues inconsistencies between A.G.’s testimony at trial and her statements
to police make her testimony incredibly dubious. “The fact that a witness gives
trial testimony that contradicts earlier pre-trial statements does not necessarily
render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406,
409 (Ind. 2002). Thus, we cannot declare A.G.’s testimony incredibly dubious
due to the inconsistencies Lee cites.
[9] Lee also claims:
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 4 of 6 What is contradictory about A.G.’s testimony is that she purported to recall facts that might satisfy proof of the elements of the offense, but she could not recall details of the incidents. Her ability to recall incidents from ten to twelve years before is rendered incredible by her inability to recall surrounding details. It is inherently contradictory that a witness can recall only the alleged offenses and not the attendant facts and circumstances.
(Br. of Appellant at 13.) We disagree with Lee’s legally unsupported statement.
In fact, we have before acknowledged that, when many years have passed
between sexual abuse and testimony, a child will be unable to remember the
specific circumstances that surrounded each occurrence of an offense. See, e.g.,
Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (noting children often cannot
recall extraneous facts distinguishing each of multiple occurrences of abuse),
reh’g denied. And we note that eleven years passed between when Mother’s
relationship with Lee ended and when A.G. was testifying, which alone could
account for any witness’s inability to remember surrounding details. We
decline to call A.G.’s testimony dubious on this basis.
[10] Further, A.G. was not the only witness. Mother testified A.G.’s behavior
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 05 2017, 8:50 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Benjamin Lee, June 5, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1609-CR-2197 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1507-FA-24808
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 1 of 6 [1] Benjamin Lee appeals his convictions for three counts of Class A felony child
molesting. 1 He argues the State did not present sufficient evidence of his guilt
because A.G.’s testimony was incredibly dubious. We affirm.
Facts and Procedural History [2] Between 2002 and 2005, when A.G. was between five and eight years old,
A.G.’s mother (“Mother”) was in a relationship with Lee. During that time,
Lee would babysit A.G. while Mother was at work. On multiple occasions,
Lee forced A.G. to perform oral sex on him and once attempted to have sexual
intercourse with her. A.G. did not report the incidents at the time because she
“was scared” and “felt stupid.” (Tr. Vol. II at 78.) When A.G. was in junior
high or high school, she told Mother that Lee had molested her. A.G. did not
tell anyone else at that time because “it’s old and wouldn’t nobody believe
[her].” (Id. at 79) (errors in original). Mother did not report what A.G. told her
at that time because she “googled it and it was that the statute of limitations had
passed based on what [she] knew at the time.” (Id. at 35.)
[3] In May 2015, when A.G. was eighteen years old, Lee contacted A.G. via
telephone at her job and asked her if she remembered him and if their “secret
[was] still between [them.]” (Id. at 80.) A.G. began physically shaking after the
phone call and called Mother. A.G. contacted the police and reported the
1 Ind. Code § 35-42-4-3(a) (1998).
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 2 of 6 incidents of molestation that occurred between 2002 and 2005. Based thereon,
the State charged Lee with four counts of Class A felony child molesting.
Three of the charges alleged Lee performed or submitted to an act of criminal
deviate conduct with A.G.; the other alleged he had sexual intercourse with
her. The police arrested Lee on August 6, 2015.
[4] The trial court held a jury trial. The jury returned a guilty verdict for all but one
of the counts. On September 2, 2016, the trial court sentenced Lee to an
aggregate sentence of eighty-five years, with twenty-five years suspended.
Discussion and Decision [5] When reviewing sufficiency of evidence to support a conviction, we consider
only the probative evidence and reasonable inferences supporting the judgment.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and
not ours, to assess witness credibility and weigh the evidence to determine
whether it is sufficient to support a conviction. Id. To preserve this structure,
when we are confronted with conflicting evidence, we consider it most
favorably to the jury’s ruling. Id. We affirm a conviction unless no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Id. It is therefore not necessary that the evidence overcome every
reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference reasonably may be drawn from it to support the jury’s decision. Id. at
147.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 3 of 6 [6] To prove Lee committed Class A felony child molesting, the State had to prove
Lee was at least twenty-one years old and performed or submitted to sexual
intercourse or deviate sexual conduct with a child under fourteen years of age.
See Ind. Code § 35-42-4-3(a) (1998). Lee argues A.G.’s testimony was
incredibly dubious and, thus, the State did not present sufficient evidence that
he committed three counts of Class A felony child molesting.
[7] The “incredible dubiosity rule” applies “only when a lone witness offers
inherently contradictory testimony that is equivocal or the result of coercion
and there is a complete lack of circumstantial evidence of the appellant’s guilt.”
Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001). Because it is the jury’s role to
judge witness credibility and to weigh evidence, we cannot impinge on the
jury’s role except in the rare circumstance when testimony “runs counter to
human experience [such] that reasonable persons could not believe” it. Id.
(internal citations omitted).
[8] Lee argues inconsistencies between A.G.’s testimony at trial and her statements
to police make her testimony incredibly dubious. “The fact that a witness gives
trial testimony that contradicts earlier pre-trial statements does not necessarily
render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406,
409 (Ind. 2002). Thus, we cannot declare A.G.’s testimony incredibly dubious
due to the inconsistencies Lee cites.
[9] Lee also claims:
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 4 of 6 What is contradictory about A.G.’s testimony is that she purported to recall facts that might satisfy proof of the elements of the offense, but she could not recall details of the incidents. Her ability to recall incidents from ten to twelve years before is rendered incredible by her inability to recall surrounding details. It is inherently contradictory that a witness can recall only the alleged offenses and not the attendant facts and circumstances.
(Br. of Appellant at 13.) We disagree with Lee’s legally unsupported statement.
In fact, we have before acknowledged that, when many years have passed
between sexual abuse and testimony, a child will be unable to remember the
specific circumstances that surrounded each occurrence of an offense. See, e.g.,
Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (noting children often cannot
recall extraneous facts distinguishing each of multiple occurrences of abuse),
reh’g denied. And we note that eleven years passed between when Mother’s
relationship with Lee ended and when A.G. was testifying, which alone could
account for any witness’s inability to remember surrounding details. We
decline to call A.G.’s testimony dubious on this basis.
[10] Further, A.G. was not the only witness. Mother testified A.G.’s behavior
changed over the course of Mother’s relationship with Lee, until A.G. did not
want to be around Lee. Mother also testified A.G. disclosed Lee’s molestation
to Mother when A.G. was in junior high or high school, but that Mother
thought the statute of limitations had lapsed for reporting of the crime and
therefore did not call police. A.G. testified to multiple incidents of molestation
by Lee. His arguments are invitations for us to reweigh the evidence and judge
witness credibility, which we cannot do. See Drane, 867 N.E.2d at 146
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 5 of 6 (appellate court does not reweigh evidence or judge credibility of witnesses).
A.G.’s testimony was not incredibly dubious, and it was sufficient to support
the jury finding Lee committed three counts of Class A felony child molesting.
See Young v. State, 973 N.E.2d 1225, 1227 (Ind. Ct. App. 2012), (affirming
molest convictions based on testimony of victim), reh’g denied, trans. denied.
Conclusion [11] Lee has not demonstrated A.G.’s testimony was incredibly dubious and thus
the State presented sufficient evidence to prove Lee committed three counts of
Class A felony child molesting. We affirm.
[12] Affirmed.
Brown, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-CR-2197 | June 5, 2017 Page 6 of 6